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MARSELLIS-WARNER v. RABENS

United States District Court, District of New Jersey


February 24, 1999

MARSELLIS-WARNER CORP., PLAINTIFF,
v.
CHARLES RABENS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lechner, District Judge.

    OPINION

This is an action brought by plaintiff, Marsellis-Warner Corp. ("Marsellis-Warner"), against Charles Rabens ("Rabens"), Jack Fernandez ("Jack Fernandez"), Patricia Fernandez ("Patricia Fernandez"), Paul and Marc Construction, Inc. ("PAM Co."), and John Does # 1-20 and ABC Corp.-XYZ Corp. (collectively, the "Defendants").*fn1 In a verified complaint filed 21 September 1998, (the "Complaint"), Marsellis-Warner seeks money damages and equitable relief for violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964(c) and 1962(c), and for various state law violations, including fraud, breach of contract, fraudulent misrepresentation, conversion, conspiracy, unjust enrichment, breach of fiduciary duty and state RICO violations. Jurisdiction is alleged pursuant to 18 U.S.C. § 1964(c), 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a).

Currently before the court is an application by Marsellis-Warner for a preliminary injunction (the "Preliminary Injunction Application") to enjoin the Defendants from dissipating or disposing of any assets. The Preliminary Injunction Application is brought pursuant to the New Jersey Racketeering Act, N.J.S.A. 2C:41-4 ("Section 2C:41-4") and Fed.R.Civ.P. 65 ("Rule 65"). Marsellis-Warner also requests a writ of attachment (the "Attachment Request") against the assets of the Defendants which are located in New Jersey, pursuant to Fed.R.Civ.P. 64 ("Rule 64") and N.J.S.A. 2A:26-2 ("Section 2A:26-2").*fn2

Also pending is a motion by the Defendants to stay the instant civil action pending completion of a Federal criminal investigation into the conduct of the Defendants (the "Motion to Stay").*fn3

For the reasons set forth below, the Preliminary Injunction Application is granted; the Attachment Request is denied; the Motion to Stay is denied without prejudice.*fn4

Background

A. Procedural History

As mentioned, Marsellis-Warner filed the Complaint commencing this action on 21 September 1998. See Complaint. On the same date, Marsellis-Warner, seeking temporary restraints against the Defendants, applied ex parte for an order to show cause (the "Ex Parte Application"). On 22 September 1998, Judge William Bassler issued an order to show cause (the "Order to Show Cause") granting the Ex Parte Application. See Order to Show Cause. The Order to Show Cause set 25 September 1998 as the date on which to hear the parties on the application of Marsellis-Warner for temporary restraints against the Defendants. See Order to Show Cause. The Defendants were directed to submit opposition, if any, by 25 September 1998. See id.

The Order to Show Cause directed the Defendants not to convert, transfer, sell or dispose of or dissipate any property or rights in property in which they possess a legal or ownership interest pending the 25 September 1998 return date. The Defendants also were directed to preserve all documents relating to the allegations set forth in the Complaint. See Order to Show Cause.

On 25 September 1998, Judge Bassler signed a consent order (the "25 September 1998 Consent Order"), pursuant to which the Defendants consented to the terms and provisions set forth in the Order to Show Cause. The 25 September 1998 Consent Order directed the continuance of the temporary restraints granted in the Order to Show Cause until further court order. See 25 September 1998 Consent Order.

Judge Bassler, thereafter, recused himself; that recusal resulted in the transfer of the instant action to the undersigned. On 6 October 1998, an order of reassignment was entered.

By consent order, signed by the undersigned and filed 5 October 1998, (the "5 October 1998 Consent Order"), the temporary restraints granted in the Order to Show Cause were continued pending further court order. A return date of 25 November 1998 was set for the Order to Show Cause. The 5 October 1998 Consent Order further provided: "Any and all affidavits supporting [moving briefs and reply briefs] shall be based solely on firsthand knowledge and shall contain no legal argument." 5 October 1998 Consent Order at ¶ 6.

Following the 5 October 1998 Consent Order, numerous briefs and affidavits were received relating to the Preliminary Injunction Application and the Motion to Stay. Several of the affidavits contained argument of both fact and law in violation of Rule 7.2(a) of the Local Rules Governing the District of New Jersey (the "Local Rules") and the 5 October 1998 Consent Order. In particular, the Supplemental Amsterdam Affidavit originally submitted by Marsellis-Warner in conjunction with the Preliminary Application Reply Brief, attached more than forty documents spread through ten exhibits presenting novel issues.

In a letter, dated 19 November 1998, (the "Defendants' 19 November 1998 Letter"), the Defendants objected to consideration of the Preliminary Injunction Application Reply Brief and the Supplemental Amsterdam Affidavit which, they contended, "present new factual assertions and issues that were not presented in [Marsellis-Warner's] original moving papers[.]" Defendants' 19 November 1998 Letter. The Defendants requested a continuance of the 25 November 1998 return date for the Order to Show Cause and an opportunity to submit a factual response to the new factual allegations of Marsellis Warner (the "Defendants' Request to Respond"). Id. Marsellis-Warner objected to the Defendants' Request to Respond, in a letter, dated 19 November 1998, (the "Marsellis-Warner 19 November 1998 Letter"). See Marsellis-Warner 19 November 1998 Letter.

By order, dated 24 November 1998, (the "24 November 1998 Order"), the 25 November 1998 return date for the Order to Show Cause was continued pending the receipt in chambers of a revised Supplemental Amsterdam Affidavit and the Defendants' Rebuttal Brief responding to the new factual allegations of Marsellis-Warner. See 24 November 1998 Order. The 24 November 1998 Order also directed the parties not to file additional submissions in conjunction with the Preliminary Injunction Application. Id. A revised Supplemental Amsterdam Affidavit and the Defendants' Rebuttal Brief subsequently were received in chambers.

The provisions of the 24 November 1998 Order notwithstanding, counsel for Marsellis-Warner submitted a letter, dated 23 December 1998, (the "Marsellis-Warner 23 December 1998 Letter") objecting, inter alia, to the content of the Defendants' Rebuttal Brief and accompanying affidavits. On 4 January 1999, an order to show cause was issued sua sponte (the "4 January 1999 Order to Show Cause"), directing counsel for Marsellis-Warner to show cause why he should not be sanctioned for submission of the Marsellis-Warner 23 December 1998 Letter. See 4 January 1999 Order to Show Cause.

On 11 January 1999, counsel for Marsellis-Warner submitted a letter-brief stating its position in connection with the 4 January 1999 Order to Show Cause (the "Marsellis-Warner 11 January 1999 Letter"). See Marsellis-Warner 11 January 1999 Letter. In a detailed order, dated 27 January 1999, (the "27 January 1999 Order"), it was observed the Marsellis-Warner 23 December 1998 Letter and the Marsellis-Warner 11 January 1999 Letter violated the 24 November 1998 Order and the 5 October 1998 Consent Order, as well as Local Rule 7.1(f), Appendix N. See 27 January 1999 Order. Counsel for Marsellis-Warner was sanctioned in the amount of $250.00. Id.

By order, dated 11 January 1999, (the "11 January 1999 Order"), the return date on which to hear to Preliminary Injunction Application and Motion to Stay was extended. See 11 January 1999 Order. The 11 January 1999 Order also affirmed an order by Magistrate Judge Dennis M. Cavanaugh, dated 17 December 1998, which denied in part the application of Marsellis-Warner to compel discovery and imposed a stay of discovery (the "Discovery Stay") pending the resolution of the Motion to Stay. See 11 January 1999 Order.

As mentioned, a hearing was held on 23 February 1999 to address the Preliminary Injunction Application and the Motion to Stay. During the 23 February 1999 Hearing, Marsellis-Warner stated it had reached a settlement agreement-in-principal with Rabens. The parties subsequently were directed to re-brief the issues relevant to the Motion to Stay. Counsel for Jack Fernandez, Patricia Fernandez and PAM Co. also consented to the restraints proposed in the Preliminary Injunction Application.

B. Facts

1. The Parties

Marsellis-Warner is a paving and excavating contractor which performs work generally for governmental agencies and Fortune 500 companies. See Complaint at ¶ 1. Rabens and Jack Fernandez were employed by Marsellis-Warner as executive vice president and foreman for more than twenty years. See id. at ¶¶ 1, 5, 6. During the course of their employment, Rabens and Jack Fernandez were given full responsibility, authority and discretion to operate a satellite office of Marsellis-Warner located in Morganville, New Jersey (the "South Jersey Office"). See id. at ¶ 1. At the South Jersey Office, Rabens, as executive in charge, supervised the work of Jack Fernandez. Patricia Fernandez, the wife of Jack Fernandez, was at all relevant times the co-owner of PAM Co., a construction company. See Complaint at ¶ 7. Rabens and Jack Fernandez also had an ownership interest in PAM Co. Id.

Under the billing system of Marsellis-Warner, Jack Fernandez was responsible for submitting a "daily work report" or "timesheet" to the principal office of Marsellis-Warner describing particular work performed on projects for clients of Marsellis-Warner. The daily work report detailed the project name, the work to be performed at the project, the hours worked by laborers on that particular day at the project, the hours worked by the operating engineers on that day at the project, the type of equipment used on the project on that day, the length of time such equipment was in use on that day, the names of the trucking companies and other subcontractors who were utilized on that day, the number of hours spent by each truck hired for the project, the type of materials required for each project on that day, the number of tons of each material used and the name of the supplier of each material for that particular day. Based upon these daily work reports, Marsellis-Warner made payments to the Defendants.

2. The Alleged Misconduct

Marsellis-Warner alleges that on several occasions during the course of their employment, Rabens and Jack Fernandez, in various conspiracies with each other and with Patricia Fernandez, willfully engaged in a pattern of racketeering activity and breached their fiduciary and contractual duties to Marsellis-Warner. Specifically, Marsellis-Warner alleges Rabens and Jack Fernandez submitted numerous falsified documents to Marsellis-Warner during the course of many years. According to Marsellis-Warner, Rabens and Jack Fernandez submitted, by regular mail and/or facsimile transmissions, "fictitious timesheets and/or invoices" to Marsellis-Warner detailing work not actually performed for clients of Marsellis-Warner. See Complaint at ¶¶ 1, 13. Instead, it is alleged, the falsified documents disguised various lucrative "side" projects performed secretly for the customers of PAM Co. Id. at ¶ 1. These side projects allegedly were performed for the following corporations: Shore Point Bottling Corp., King's Welding, Traffic Lines, Inc., Larsen's Ford, Allstar Tool Rental, The Cabin Restaurant, Metetaconk Golf Course, The Italian-American Club, the Fernandez Residences, Carlton & Bilter Insurance Agency, and various unspecified country clubs, driveways and yards. See id. at ¶ 18.

Marsellis-Warner further alleges the fictitious daily work reports falsely represented that workers, equipment, services and/or materials had been utilized by the Defendants for only the clients of Marsellis-Warner. See id. at ¶ 14. Marsellis-Warner contends the daily work reports and timesheets do not disclose the Defendants in fact performed numerous side projects for their personal financial gain using the workers, equipment, services and materials of Marsellis-Warner. See id. In this manner, the Defendants allegedly effected a scheme to avoid paying for labor and materials for the side projects. See id. at ¶ 15.

Marsellis-Warner alleges the Defendants

  individually, and in various conspiracies with each
  other, engaged in wrongful, fraudulent and otherwise
  illegal schemes to embezzle and steal monies from
  [Marsellis-Warner], and to otherwise defraud
  [Marsellis-Warner], utilizing fictional timesheets
  and invoices to effectuate said schemes.

See id. at ¶ 21. Rabens allegedly compounded the fraudulent activity by writing numerous unauthorized checks out of the checking account of Marsellis-Warner, made payable to "cash" or himself. See id. at ¶ 25; Amsterdam Aff. at Exhibit A.

As a result of the conduct and activities of the Defendants, Marsellis-Warner contends it suffered "massive financial injury" and reputational injury. See Complaint at ¶ 1. More specifically, Marsellis-Warner alleges it suffered injury and losses in the "hundreds of thousands of dollars." See id. at ¶¶ 16, 26, 31, 37, 40, 45, 47, 54, 62, 65, 69, 72. It demands judgment in its favor and against the Defendants for, inter alia, compensatory damages, treble damages (RICO claims only), attachment of assets, expedited discovery in aid of attachment and temporary restraints. See id. at ¶¶ 16, 17, 18-19, 19-20, 21, 21-22, 23, 26, 26-27, 27, 28.

Marsellis-Warner terminated Rabens effective 30 June 1998. See Furst Aff. at Exhibit 2; Complaint at ¶ 11. Jack Fernandez resigned his position with Marsellis-Warner on 23 May 1998. See Amsterdam Aff. at ¶ 6.

3. The Criminal Proceedings

The Complaint also discloses the existence of several pending investigations into the conduct of the Defendants. For instance, Marsellis-Warner alleges "the defendants' actions are the subject of ongoing investigations by the Office of the United States Attorney [(the "U.S. Attorney")]." See Complaint at ¶ 3. It appears the allegations of Marsellis-Warner sparked a criminal investigation conducted by the U.S. Attorney and a Federal grand jury (the "Grand Jury"). It appears Rabens has been designated a target of the investigation. See Furst Aff. at ¶ 4. It also appears various subpoenas have been served, including one served on Due Process Country Club for documents concerning work performed "by or on behalf" of Rabens, Jack and Patricia Fernandez or PAM Co. and for membership dues and information concerning them. See id. at Exhibit A.

It appears Sean Quinn, a special agent ("Special Agent Quinn") of the Federal Bureau of Investigation (the "FBI") is investigating the sources of income of Jack and Patricia Fernandez, as well as the alleged use of equipment of Marsellis-Warner without payment. See Palma Aff. at ¶ 3. The FBI questioned Jack Fernandez concerning two side jobs allegedly performed at Shore Points Distributors and Larsen Ford. See Lomurro Aff. at ¶ 3. It appears Special Agent Quinn advised counsel for Jack Fernandez the criminal investigation included the unauthorized use of the equipment, labor and materials of Marsellis-Warner. Id. at ¶ 6. According to Assistant United States Attorney Alan Leibman ("AUSA Leibman"), the scope of the criminal investigation against the Defendants includes the receipt by Rabens of financial benefits from third parties for work outside the scope of his employment with Marsellis-Warner. See Furst Aff. at ¶ 6.

It further appears a grand jury subpoena was served upon PAM Co. and its accountant, demanding personal and corporate financial records covering the last five years. See Bonney Aff. at ¶ 9; Lomurro Aff. at ¶ 6.

The U.S. Attorney declined to specify an exact timetable for the conclusion of the pending criminal investigation. See Furst Aff. at ¶ 5.

Counsel for the Defendants have recommended their clients invoke the Fifth Amendment privilege against self-incrimination in the instant civil action. See Furst Aff. at ¶¶ 9-10; Bonney Aff. at ¶¶ 10-12; Lomurro Aff. at ¶¶ 7-9.

Discussion

A. Prerequisites of Preliminary Injunctive Relief

In anticipation of final judgment rendered in its favor, Marsellis-Warner seeks a preliminary injunction enjoining the Defendants from dissipating or otherwise disposing of any assets and/or documents. The Preliminary Injunction Application is made pursuant to the New Jersey Racketeering Act, N.J.S.A. 2C:41-4,*fn5 Rule 65 and common law. See Preliminary Injunction Moving Brief at 3.

  1. Equitable Relief Under Federal and State Racketeering
    Statutes

Marsellis-Warner, invoking Section 2C:41-4, contends the New Jersey legislature has recognized the availability of injunctive relief where defendants have engaged in a pattern of racketeering activity prohibited under the New Jersey Racketeering Act, N.J.S.A. 2C:41-1 et seq. See Preliminary Injunction Moving Brief at 28-29. The Defendants, by contrast, argue a preliminary injunction based upon alleged violations of the Federal RICO statutes, 18 U.S.C. § 1961 et seq.,*fn6 and the New Jersey Racketeering Act, N.J.S.A. 2C:41-1 et seq., is unavailable to private litigants. See Preliminary Injunction Opposition Brief at 26.

Section 1964(a) of the RICO statute and Section 2C:41-4(a) of the New Jersey Racketeering Act do not expressly preclude equitable actions by private plaintiffs. See 18 U.S.C. § 1964(a); N.J.S.A. 2C:41-4(a). The plain language of Section 1964(a) and Section 2C:41-4(a) appears to accord Federal and State courts the authority to grant equitable relief in appropriate actions. Such authority is not expressly limited to cases brought by the Government.*fn7 Nevertheless, Section 1964(c) and Section 2C:41-4(c), which grant private parties a cause of action under RICO, are silent as to the availability injunctive relief to private plaintiffs.

This Circuit has not squarely addressed the availability of injunctive relief to private litigants under the RICO statutes.*fn8 A few district courts in the Circuit, however, have held a private litigant may not seek equitable remedies, namely a preliminary injunction, under either the RICO statute or the New Jersey Racketeering Act. In Curley v. Cumberland Farms Dairy, Inc., 728 F. Supp. 1123, 1136 (D.N.J. 1989) (SSB), it was held private injunctive relief was unavailable under both Federal and State anti-racketeering laws. The court, analyzing the legislative history of the RICO statutes, found that Congress explicitly rejected a private injunctive relief provision. Id. at 1137. It was reasoned:

  that Congress made an express provision for an
  equitable remedy in suits brought by the government
  and simultaneously declined to make a similar
  provision for private actions carries with it the
  strong suggestion that no private equitable remedy
  was intended.

Id. at 1137 (citing, inter alia, Religious Technology Center v. Wollersheim, 796 F.2d 1076, 1082-83 (9th Cir.), cert. denied, 479 U.S. 1103, 107 S.Ct. 1336, 94 L.Ed.2d 187 (1987)); see also Johnston Development Group, Inc. v. Carpenters Local Union No. 1578, 728 F. Supp. 1142, 1146 (D.N.J. 1990) (SSB) ("RICO . . . makes no provision for private equitable relief[.]"); Vietnam Veterans of Am., Inc. v. Guerdon Indus., Inc., 644 F. Supp. 951, 961 (D.Del. 1986) (JJF) (dismissing RICO claim of plaintiff to extent it sought injunctive relief, observing Congress repeatedly rejected attempts to amend RICO to provide private injunctive remedies).

The Curley court similarly determined the New Jersey Racketeering Act does not provide for injunctive relief in private suits.

  The New Jersey RICO provisions parrot those of the
  [F]ederal statute. [Section] 2C:41-4(a), like its
  [F]ederal law counterpart, [Section] 1964(a),
  contains the affirmative grant of jurisdiction to the
  Superior Court. That section specifically provides
  the Superior Court with the power to enter orders
  providing equitable relief. Although the statute
  provides for equitable remedies in cases brought by
  the Attorney General, it does not speak to the
  availability of injunctive relief in private actions.
  This suggests that the New Jersey General Assembly,
  like Congress with respect to [Section] 1964(c), did
  not intend to provide for injunctive relief.

  Curley, 728 F. Supp. at 1138 (internal citations and footnotes omitted). The court concluded: "To the extent that the [F]ederal statute does not provide for a private equitable remedy, the New Jersey statute similarly omits such a cause of action." Id.

Several other Circuit courts share the conclusions drawn by the Curley court with respect to the Federal RICO statute. See In re Fredeman Litig., 843 F.2d 821, 830 (5th Cir.), reh'g denied, 847 F.2d 840 (5th Cir. 1988); Religious Technology Center, 796 F.2d at 1077; Dan River Inc. v. Icahn, 701 F.2d 278, 290 (4th Cir. 1983). Other courts, however, have concluded RICO affords a private injunctive remedy. See, e.g., Nat'l Organization for Women, Inc. v. Scheidler, 897 F. Supp. 1047, 1082-83 (N.D.Ill. 1995); Chambers Development Co. v. Browning-Ferris Indus., 590 F. Supp. 1528, 1540 (W.D.Pa. 1984) (holding equitable relief is available to private parties in RICO claims, in part because the RICO statute must be liberally construed to effectuate its purpose).

A determination of whether equitable relief is available to private plaintiffs under the Federal or State racketeering statutes is, in the instant matter, unnecessary. Irrespective of any statutory grant of authority, a Federal court may, in the exercise of its inherent equity powers, enjoin actionable conduct. See McMonagle, 868 F.2d at 1355 (declining to decide whether injunctive relief is available to private parties under the RICO statute because "all the injunctive relief [the plaintiff] seeks could be granted under its state law claim"); Dixie Carriers, Inc. v. Channel Fueling Serv., 843 F.2d 821, 830 (5th Cir. 1988) (acknowledging other forms of injunctive relief may not be foreclosed to private plaintiffs suing under RICO statute); Chambers, 590 F. Supp. at 1541 (recognizing the inherent power of Federal courts to grant equitable relief to prevent irreparable injury from conduct prohibited by RICO); Aetna Casualty & Surety Co. v. Liebowitz, 570 F. Supp. 908, 910 (E.D.N.Y.) (granting preliminary injunction to private RICO litigant after finding traditional standards in that circuit for obtaining preliminary injunctive relief met), aff'd, 730 F.2d 905 (2d Cir. 1984).

Significantly, preliminary injunctive relief remains available under Rule 65 to private plaintiffs who invoke Federal jurisdiction pursuant to the RICO statute. See Fed.R.Civ.P. 65; McMonagle, 868 F.2d at 1355. Grounds for an injunction may rest independently on meritorious non-RICO Federal claims or pendent State law claims. See Roe v. Operation Rescue, 919 F.2d 857, 867 (3d Cir. 1990) (citing McMonagle, 868 F.2d at 1355) (upholding issuance of injunction which rested independently on pendent State law claims); see also People by Abrams v. Terry, 45 F.3d 17, 23 (2d Cir. 1995) (citing Roe, 919 F.2d at 867) ("[E]ven assuming that [42 U.S.C. §] 1985(3) does not authorize an injunctive remedy, the injunction can be sustained on the basis of the independent [S]tate law claims."); Lincoln House, Inc. v. Dupre, 903 F.2d 845, 848 (1st Cir. 1990) (citing, inter alia, McMonagle, 868 F.2d at 1355) (stating "it is not clear whether injunctive or other equitable relief is available at all in private civil RICO actions" but expressly declining to exercise inherent power to grant injunctive relief based on facts before it); Northern Virginia Women's Medical Center v. Balch, 617 F.2d 1045, 1049 (4th Cir. 1980) (sustaining injunction based on pendent State law claims). As discussed below, Marsellis-Warner has alternatively asserted viable non-RICO grounds on which it may secure equitable relief in the instant action.

2. Traditional Bases for Equitable Relief

Marsellis-Warner also alleges pendent State law claims of fraud, breach of contract, conversion, conspiracy, unjust enrichment and breach of fiduciary duty. See Complaint. As discussed, the Preliminary Injunction Application relies not only on the RICO statute, but also on injunctive relief afforded by Rule 65 and the common law.

Injunctive relief pursuant to Rule 65 is an extraordinary remedy. When reviewing the Preliminary Injunction Application of Marsellis-Warner, the following four factors (the "Injunction Factors") must be considered:

  (1) the likelihood that [Marsellis-Warner] will
  prevail on the merits at final hearing;

  (2) the extent to which [Marsellis-Warner] is being
  irreparably harmed by the conduct complained of;

  (3) the extent to which [the Defendants] will suffer
  harm if the preliminary injunction is issued; and

(4) the public interest.

See, e.g., Pappan Enters., Inc. v. Hardee's Food Sys., Inc., 143 F.3d 800, 803 (3d Cir. 1998); American Telephone & Telegraph, Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir.), cert. denied, 514 U.S. 1103, 115 S.Ct. 1838, 131 L.Ed.2d 757 (1995); Gerardi v. Pelullo, 16 F.3d 1363, 1373 (3d Cir. 1994); S & R Corp. v. Jiffy Lube Int'l, Inc., 968 F.2d 371, 375 (3d Cir. 1992); Opticians Ass'n of Am. v. Independent Opticians of Am., 920 F.2d 187, 191-92 (3d Cir. 1990); Alessi v. Commonwealth of Pennsylvania, Dep't of Pub. Welfare, 893 F.2d 1444, 1447 (3d Cir. 1990); Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 799 (3d Cir. 1989); Fechter v. HMW Indus., Inc., 879 F.2d 1111, 1116 (3d Cir. 1989); Jews for Jesus v. Brodsky, 993 F. Supp. 282, 292 (D.N.J.), aff'd, 159 F.3d 1351 (3d Cir. 1998); Genovese Drug Stores, Inc. v. TGC Stores, Inc., 939 F. Supp. 340, 343 (D.N.J. 1996); Apollo Technologies v. Centrosphere Indus., 805 F. Supp. 1157, 1191 (D.N.J. 1992); Glenside West Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1118, 1132 (D.N.J. 1991); CPC Int'l, Inc. v. Caribe Food Distribs., 731 F. Supp. 660, 664 (D.N.J. 1990); Bascom Food Prods. Corp. v. Reese Finer Foods, Inc., 715 F. Supp. 616, 624 (D.N.J. 1989).

The grant or denial of the Preliminary Injunction Application lies within "`the sound discretion of the district judge, who must balance all of [the Injunction F]actors in making a decision.'" FM 103.1, Inc. v. Universal Broadcasting of N.Y., Inc., 929 F. Supp. 187, 193 (D.N.J. 1996) (citing Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982) and Atlantic Coast Demolition v. Board of Chosen Freeholders of Atlantic Cty., 893 F. Supp. 301, 307 (D.N.J. 1995)); Brodsky, 993 F. Supp. at 292.

Of the Injunction Factors, the Circuit has placed particular emphasis on the likelihood of success on the merits and the probability of irreparable harm, stating: "`[W]e cannot sustain a preliminary injunction ordered by the district court where either or both of these prerequisites are absent.'" Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197 (3d Cir. 1990) (quoting In re Arthur Treacher's Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982)); see also Instant Air, 882 F.2d at 800; Morton v. Beyer, 822 F.2d 364, 367 (3d Cir. 1987); Sky Vue, 759 F.2d at 1098-99; Freixenet, S.A. v. Admiral Wine & Liquor Co., 731 F.2d 148, 151 (3d Cir. 1984).

Additionally, before a preliminary injunction may issue, the applicant for the injunction usually must give security

  in such sum as the court deems proper, for the
  payment of such costs and damages as may be incurred
  or suffered by any party who is found to have been
  wrongfully enjoined or restrained.

Fed.R.Civ.P. 65; Elliott v. Kiesewetter, 98 F.3d 47, 59-60 (3d Cir. 1996); In re Nat'l Credit Management Group, L.L.C., 21 F. Supp.2d 424, 463 (D.N.J. 1998); Brodsky, 993 F. Supp. at 293.

  a. Likelihood Marsellis-Warner Will Prevail on the Merits of
    its Common Law Claims

For purposes of granting a preliminary injunction on the basis of pendent State law claims, "it is sufficient that [Marsellis-Warner] be found likely to succeed on one of the[] common law claims." Andrews v. Holloway, No. 95-1047, 1995 WL 875883, at *14 (D.N.J. Nov. 9, 1995). A review of the facts alleged in the Complaint and stated in the affidavits accompanying the Preliminary Injunction Application reveals Marsellis-Warner is likely to succeed on its fraud, breach of fiduciary duty and conversion claims.*fn9 These claims are addressed seriatim.*fn10

(1) Fraud

The first count of the Complaint alleges, inter alia, the Defendants "engaged in wrongful, fraudulent and otherwise illegal schemes to embezzle and steal monies from plaintiff, and to otherwise defraud plaintiff, utilizing fictional timesheets and invoices to effectuate said schemes." Complaint at ¶ 21.

Satisfaction of the elements of common law fraud under New Jersey law requires proof the defendant made:

  (1) a material representation of a present or past
  fact (2) with knowledge of its falsity (3) with the
  intention that the other party rely thereon (4) . . .
  which resulted in reasonable reliance by plaintiff
  [and (5) which resulted in damages].

Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1182 (3d Cir. 1993) (citing Jewish Center v. Whale, 86 N.J. 619, 624, 432 A.2d 521 (1981)); see Andrews, 1995 WL 857883, at *14 (citing Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 477 A.2d 1224 (1984) (citing Jewish Center, 86 N.J. at 624, 432 A.2d 521)); see Eli Lilly & Co. v. Roussel Corp., 23 F. Supp.2d 460, 492 (D.N.J. 1998) (applying New Jersey law); New Jersey Carpenters Health Fund v. Philip Morris, Inc., 17 F. Supp.2d 324, 333 (D.N.J. 1998) (citing Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610, 691 A.2d 350 (1997) (listing elements)). The elements of legal fraud must be proved by a preponderance of the evidence. See Lightning Lube, 4 F.3d at 1183 (citing Jewish Center, 86 N.J. at 624, 432 A.2d 521).*fn11

It appears, at this preliminary stage of the litigation, Marsellis-Warner will be able to establish a prima facie case of fraud. Marsellis-Warner sets forth in detail the techniques employed by the Defendants. It alleges:

  In an effort to conceal the fraud, defendants
  intentionally camouflaged the `side' work they were
  performing through a myriad of veiled techniques,
  including the preparation of false documents,
  providing false certifications to payroll
  submissions, and in destroying documents and/or
  shielding documents which would have revealed
  defendants' `side' projects in various locations
  where they could not be discovered by
  [Marsellis-Warner].

  Rabens compounded the fraudulent activity by writing
  numerous unauthorized checks out of
  [Marsellis-Warner's]

  checking account made payable to himself and/or
  `cash', and utilizing the proceeds of these checks
  for personal expenses. Further, and as a result of
  Rabens [sic] fraudulent conduct, [Marsellis-Warner]
  loaned Rabens several thousands of dollars without
  security for the same.

Complaint at ¶¶ 22, 25.

The statements of employees of Marsellis-Warner corroborate many of these allegations. Specifically, Mark Bennett ("Bennett"), a laborer with Marsellis-Warner, stated he personally worked on many of the unauthorized side projects of the Defendants, including those projects performed at the Shore Point Bottling Corp., King's Welding, Larsen's Ford, Allstar Tool Rental, The Cabin Restaurant, Metetaconk Golf Course, The Italian-American Club and the Fernandez Residences. See Bennett Aff. at ¶ 5. Bennett testified that for these side projects, he, along with full crews of laborers of Marsellis-Warner, worked under the direction of Jack Fernandez. See id. At these sites, various trucks, equipment and materials of Marsellis-Warner also were used. See id. Andrew Amsterdam, Vice President of Marsellis-Warner confirmed, "not a single project enumerated in paragraph 5 of Mr. Bennet's Affidavit were [sic] legitimate projects contracted for by [Marsellis-Warner]." Amsterdam Aff. at ¶ 3.

Bennett also attested to the alleged fraudulent billing by the Defendants. He stated a daily work report prepared for 22 November 1996 by Jack Fernandez,*fn12 falsely represented the actual work performed on that particular day. While the daily work report indicated Bennett worked on one of the projects of Marsellis-Warner on that date, Bennett stated he "worked the entire day at the Shore Point Bottling Plant," an alleged side job of the Defendants. Bennett Aff. at ¶ 7.

That Bennett may not be competent to attest to the scope of the job responsibilities of his superiors, as the Defendants contend, see Preliminary Injunction Opposition Brief at 3-4, is unavailing. The statements of Bennett are sufficiently limited in scope to describing his personal job assignments under the direction of Jack Fernandez and his personal knowledge of his whereabouts on 22 November 1996.

Statements contained in the Amsterdam Affidavit further support a finding of fraud. Amsterdam stated:

  [Marsellis-Warner] received no income from any of
  [the side] projects and, until the existence of these
  projects was recently disclosed to me by Mr. Bennett,
  [Marsellis-Warner] had absolutely no knowledge of
  these projects. With respect to all of these
  projects, defendants submitted fictional timesheets
  which misrepresented that the manpower, equipment,
  services and/or materials that defendants were using
  on their side projects were being used on plaintiff's
  projects. As a result of these misrepresentations,
  defendants induced plaintiff to make hundreds of
  thousands of dollars of unmerited payments.

Amsterdam Aff. at ¶ 3. Amsterdam also stated he recently discovered unauthorized checks payable to "cash" or to Rabens which were drawn on the bank account of Marsellis-Warner. Id. at ¶ 8.*fn13

The statements of Philip J. Pirro ("Pirro"), Executive Vice President of Marsellis-Warner, are not to the contrary. Upon the commencement of his employment in June 1994, Pirro audited all jobs of Marsellis-Warner. See Pirro Aff. at ¶ 2. According to Pirro, an audit of the jobs under the control of Rabens and Jack Fernandez revealed the following suspect activities:

  [S]everal cost items did not add up on the monthly
  internal statements. It appeared

  that the trucks were constantly on the South Jersey
  jobs with little or no resulting value. The truckers
  included PAM Trucking, Ben Dudling Trucking,
  Centimole Trucking and Hurley Trucking. . . .

  My suspicions were further aroused by Rabens's
  handling of a project at Port Elizabeth, Newark, New
  Jersey known as the `Port Triangle' project. The Port
  Triangle project was subject to unexplained
  construction overruns and showed little or no profit.
  The first problem I noticed was when Jack Fernandez
  was milling the site. We arranged for my foreman
  Donald Sember to receive the milled asphalt from the
  Port Triangle project and use it as a subbase on a
  project for an A & P Supermarket in Kenilworth. When
  I arrived at the Kenilworth site, I noted that we
  were receiving very bad, chunky loads of milling that
  were not good quality. . . . [Don Sember] reported
  that the poor quality millings from the Port Triangle
  project were being sent to Kenilworth while the good
  millings were trucked offsite to an unknown location.
  When I questioned Rabens regarding this issue, he
  stated that the loads of good millings had been sold
  and advised me not to worry about it. To my
  knowledge, [Marsellis-Warner] never realized any
  income from these sales. . . .

Id. at ¶¶ 2-3.

It additionally appears Marsellis-Warner undertook reasonable steps to investigate the activities of the Defendants. On the basis of the suspicions of Pirro and Amsterdam concerning the activities of Rabens and Jack Fernandez, Robert Shockley ("Shockley") was hired in February 1998 as a general supervisor to monitor the activities of the South Jersey Office. See Shockley Aff. at ¶ 2.*fn14 Shockley stated that immediately after assuming his monitoring duties, he encountered hostility from Rabens and Jack Fernandez:

  [I]t became very apparent to me that both Charles
  Rabens and Jack Fernandez objected to my presence of
  the various sites where the South Jersey office's
  projects were located. I was repeatedly informed by
  laborers and subcontractors that Rabens and Fernandez
  were annoyed and angered by my presence.

  I recall that on one specific occasion, I questioned
  Rabens regarding the allocation and amount of
  equipment utilized on one of the projects. Rabens
  told me abruptly: `I'll run my job however I want
  to.' He then flatly refused to answer further
  questions. . . .

  [A]s I continued to probe more deeply into the daily
  operations of the South Jersey office, Rabens and
  Fernandez very frequently criticized my job
  performance to my supervisors, and did everything
  they could to have me terminated.

Id. at ¶¶ 3-5.

The extent and exact nature of the alleged fraud was not uncovered, however, until Bennett came forward. See Amsterdam Aff. at ¶ 3. It appears Marsellis-Warner reasonably relied to its detriment on the alleged fraudulent timesheets and invoices and other misstatements. See id.; see also Complaint at ¶¶ 23-24.

Marsellis-Warner has proffered corroborated evidence of fraud. The affidavits submitted in support of the Preliminary Injunction Application indicate the timesheets submitted by the Defendants fraudulently misrepresented that work was performed on the legitimate projects of Marsellis-Warner. In reality, however, it appears the work was for side projects of the Defendants. It further appears Marsellis-Warner, in reliance on these timesheets, paid for expenses, including labor, equipment and materials, all of which were utilized on the side projects. Accordingly, Marsellis-Warner has demonstrated a reasonable likelihood of success on the merits of its common law fraud claim.

(2) Breach of Fiduciary Duty

It also appears Marsellis-Warner is likely to succeed on its claim the Defendants breached their fiduciary duties to Marsellis-Warner. Count seven of the Complaint alleges:

  As a senior officer of [Marsellis-Warner], Rabens
  owed [Marsellis-Warner] a fiduciary duty of care,
  which included the duties of good faith, openness,
  and full disclosure. Similarly, as an employee of
  [Marsellis-Warner, Jack] Fernandez owed
  [Marsellis-Warner] a fiduciary duty of care, which
  included the duties of good faith, openness and full
  disclosure.

Complaint at ¶ 22. It is contended Rabens and Jack Fernandez nevertheless engaged in numerous acts of fraud, embezzlement and other self-interested transactions at the expense of Marsellis-Warner. Id. at ¶ 23.

Under New Jersey law, "[a]n employee owes a duty of loyalty to the employer and must not, while employed, act contrary to the employer's interest." Chernow v. Reyes, 239 N.J. Super. 201, 204, 570 A.2d 1282 (App. Div.), cert. denied, 122 N.J. 184, 584 A.2d 245 (1990); see Campbell Soup Co. v. ConAgra, Inc., 801 F. Supp. 1298, 1308 (D.N.J. 1991) (SSB) (citing Chernow, 239 N.J.Super. at 204, 570 A.2d 1282 and Auxton Computer Enterprises v. Parker, 174 N.J. Super. 418, 423-25, 416 A.2d 952 (App. Div. 198 0)), order vacated on other grounds, 977 F.2d 86 (3d Cir. 1992); Cameco, Inc. v. Gedicke, 299 N.J. Super. 203, 213-14, 690 A.2d 1051 (App. Div. 1997), aff'd, 157 N.J. 504, 724 A.2d 783 (1999).

During the period of employment, "the employee has a duty not to compete with the employer's business." Chernow, 239 N.J.Super. at 204, 570 A.2d 1282 (citing United Board & Carton Corp. v. Britting, 63 N.J. Super. 517, 524, 164 A.2d 824 (1959)). The solicitation of customers or potential customers of an employer or comparable competitive acts constitutes a breach of an employee's duty of loyalty. See Cameco, 299 N.J.Super. at 214, 690 A.2d 1051; Auxton Computer Enterprises, 174 N.J.Super. at 423-24, 416 A.2d 952 ("[An employer] may not solicit his [or her] employer's customers for his [or her] own benefit before he [or she] has terminated his [or her] employment. Nor may he [or she] do other similar acts in direct competition with the employer's business."); see also Subcarrier Communications, Inc. v. Day, 299 N.J. Super. 634, 645, 691 A.2d 876 (App. Div. 1997) (quoting Auxton Computer Enterprises, 174 N.J.Super. at 423-24, 416 A.2d 952).

Marsellis-Warner appears to have alleged conduct constituting a breach of fiduciary duty. Rabens and Jack Fernandez, selected by Marsellis-Warner to manage and oversee the projects of the South Jersey Office, were delegated control over the office without expectation of interference or monitoring on the part of Marsellis-Warner. Consequently, Rabens and Jack Fernandez owed Marsellis-Warner the strictest duty of good faith and loyalty. See Silverstein v. Last, 156 N.J. Super. 145, 152, 383 A.2d 718 (App. Div. 1978).

It appears, however, Rabens and Jack Fernandez, as fiduciaries, breached their duty of loyalty to their employer. Marsellis-Warner has proffered sufficient evidence indicating the Defendants pursued competitive commercial activities while simultaneously working for Marsellis-Warner. As discussed, Bennett stated he was employed on various side jobs under the direction of Jack Rabens and Jack Fernandez. See Bennett Aff. at ¶ 5. According to Pirro, Bennett and Amsterdam, these side jobs were not reflected in the daily work reports and invoices prepared by the Defendants. It appears the alleged side jobs solicited by the Defendants, if proven to exist, constitute competitive commercial opportunities actionable under New Jersey law. As such, it appears it is likely Marsellis-Warner will prevail on its breach of fiduciary duty claim.*fn15

(3) Conversion

It also appears, at this stage, Marsellis-Warner has stated a claim for conversion. The fourth count of the Complaint alleges, inter alia, the conduct of the Defendants constitutes common law conversion. Complaint at ¶ 39.

Common law conversion under New Jersey law is defined as "the exercise of any act of dominion in denial of another's title to . . . chattels, or inconsistent with such title." Mueller v. Technical Devices Corp., 8 N.J. 201, 207, 84 A.2d 620 (1951); see Huffmaster v. Robinson, J.A., 221 N.J. Super. 315, 323, 534 A.2d 435 (Law Div. 1986) (quoting Life Ins. Co. of Va. v. Snyder, 141 N.J. Super. 539, 545, 358 A.2d 859 (App. Div. 1976) ("Conversion is `the wrongful exercise of dominion and control over the property of another in a manner inconsistent with that other person's rights.'"); see also McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750, 771 (3d Cir. 1990) (citing, inter alia, Life Ins. Co. of Va., 141 N.J.Super. at 545, 358 A.2d 859 and Mueller, 8 N.J. at 207, 84 A.2d 620); Communications Programming, Inc. v. Summit Mfg., Inc., No. Civ. A. 98-253, 1998 WL 329265, at *5 (D.N.J. June 16, 1998) (AMW) (citing and applying New Jersey conversion law). Accordingly, the elements of common law conversion under New Jersey law are "[the existence of] property and the right to immediate possession thereof belonging to plaintiff, and the wrongful interference with that right by defendant." Andrews, 1995 WL 875883, at *14 (citing First Nat'l Bank of Bloomingdale v. North Jersey Trust Co., 18 N.J.Misc. 449, 14 A.2d 765 (1940)); see Huffmaster, 221 N.J.Super. at 323, 534 A.2d 435; McAdam, 896 F.2d at 771 (citing New Jersey conversion law); Communications Programming, Inc., 1998 WL 329265, at *5 (same).

The affidavits submitted by Marsellis-Warner demonstrate a strong likelihood the' Defendants wrongfully exercised control over the property of Marsellis-Warner in a manner inconsistent with the rights of Marsellis-Warner. By virtue of their positions as executive Vice President and foreman, Rabens and Jack Fernandez exercised dominion and control over the South Jersey Office of Marsellis-Warner. It appears they utilized the workers, equipment, services and materials of Marsellis-Warner in performing various side projects, without the consent or knowledge of Marsellis-Warner. In this manner, the Defendants likely depleted the materials and labor of Marsellis-Warner.

Amsterdam cited specific examples in which materials belonging to Marsellis-Warner may have been unlawfully converted by the Defendants. According to Amsterdam, at a project Marsellis-Warner performed for Merrill Lynch in 1997-1998, approximately four thousand cubic yards of millings were generated for subsequent sale by Marsellis-Warner, of which four hundred cubic yards were used on the Merrill Lynch site itself. See Supplemental Amsterdam Aff. at ¶ 12. Jack Fernandez, however, only submitted payment to Marsellis-Warner for approximately fifteen hundred cubic yards of millings. The Defendants failed to account for the remaining twenty-one hundred cubic yards of millings. See id.*fn16

Such conduct, as alleged by Marsellis-Warner and attested to by Bennett, Amsterdam and Pirro, likely rises to the level of unlawful conversion under New Jersey law. As discussed below, the Defendants fail to convincingly rebut many of the allegations of the Marsellis-Warner employees.

(4) Sufficiency of Evidence Offered by the Defendants

The evidence proffered by the Defendants in opposition to the Preliminary Injunction Application is, for the most part, unpersuasive.*fn17

Initially, it appears the unnotarized affidavit of a Marsellis-Warner worker, John McSwain ("McSwain"), dated 19 October 1998, was forged.*fn18 Amsterdam, having observed the signature of McSwain on numerous occasions, attested the signature at the end of the 19 October 1998 McSwain Affidavit is not the signature of McSwain. Amsterdam Supplemental Aff. at ¶ 4. In a notarized affidavit, dated 9 November 1998, submitted by Marsellis-Warner, McSwain stated:

  The October 19, 1998 Affidavit is a complete forgery.
  I never saw that document before, and the contents of
  that Affidavit were never discussed with me. I never
  made any of the statements contained in the October
  19, 1998 Affidavit. The signature at the end of the
  Affidavit is not my signature.

9 November 1998 McSwain Aff. at ¶ 1. As such, the 19 October 1998 Affidavit will not be considered.*fn19

The numerous other affidavits submitted on behalf of the Defendants do not introduce any basis for concluding the Defendants will prevail in this action. Notably absent from the affidavits submitted by the Defendants are affidavits of the central characters familiar with the daily operations of the South Jersey Office. The affidavits are instead submitted by peripheral non-parties who do not deny the existence of a fraudulent scheme or the submission of fraudulent daily work reports and invoices by the Defendants. See, e.g., Sandra Rabens Aff.; DiGirolamo Aff.; Assuncao Aff.

The Cackowski Affidavit comes closest to a general denial of any fraud by the Defendants. Cackowski, a shop steward formerly employed by Marsellis-Warner, worked under the direction of Jack Fernandez. Cackowski attempts to explain how the Defendants performed side jobs while still billing more than forty hours a week per laborer to Marsellis-Warner. Cackowski states:

  When work was done in the summer or around holidays,
  the crews would work four 10 hour days (Monday
  through Thursday) and the jobs were billed for a
  forty-hour work week. The laborers

  then had the option of working for Jack Fernandez
  Company [(PAM Co.)] on Friday, on Jack Fernandez
  Payroll [sic]. Many times Mark Bennett and other
  laborers had the option to work on Friday with Jack
  Fernandez Company.

Cackowski Aff. at ¶ 3.*fn20

The allegations of the Cackowski Affidavit are contradicted by the daily work reports regularly submitted by the Defendants during the relevant time frame. The daily work reports, attached to the Supplemental Amsterdam Affidavit, evidence a different billing practice by the Defendants. These reports indicate during the summer from Monday through Friday, and sometimes Saturday, the Defendants billed approximately eight hour days to Marsellis-Warner. See Supplemental Amsterdam Aff. at ¶ 7 and Exhibits B and C (attaching copies of daily work reports submitted by Jack Fernandez for Fridays and Saturdays during the summers of 1995 to 1997).

The affidavit of Strucke and the declaration of Elaine Simone ("Simone"), also submitted by the Defendants, are similarly unpersuasive. Strucke, the president of a cellular telephone company located in Freehold, New Jersey, stated, in relevant part:

  I was preparing for the grand opening of my cellular
  phone company. The parking lot needed to be repaved
  and I contacted Jack Fernandez. . . . Jack Fernandez
  and his crew did the paving job on Friday, July 7,
  1995. I paid for the work in cash and I saw Jack
  Fernandez pay his employees from the money I had
  given to him. . . . I did not see any equipment from
  Marsellis-Warner used on the paving of my parking
  lot.

Strucke Aff. at ¶¶ 4-6 (emphasis added). It appears, however, Marsellis-Warner did not receive any revenue from the paving of the parking lot. The daily work report submitted by Jack Fernandez on 7 July 1995 indicates Jack Fernandez and his crew spent the entire eight hour day performing work at the Fort Monmouth job site of Marsellis-Warner. See Supplemental Amsterdam Aff. at ¶ 9 and Exhibit E (attaching a copy of the daily work report of 7 July 1995). It appears all the workers, services, equipment and materials listed in the daily work report for 7 July 1995 were paid for by Marsellis-Warner. See id.

The Simone Declaration, submitted by the Defendants with the Defendants' Rebuttal Brief, attempts to undermine the assertions of Pirro. Simone, a controller/bookkeeper employed by Marsellis-Warner, stated:

  I was never aware that the cost items of the jobs run
  by Charles Rabens `did not add up on the monthly
  internal statements' as suggested by Phillip Pirro. .
  . . Instead, I was always aware that the cost items
  on the jobs run by Charles Rabens were always
  justified during the monthly reviews which included
  the company accountant, Philip Amsterdam and myself.

Simone Decl. at ¶ 5. Notably, Simone may not have been employed during the time in which Pirro prepared his audits of jobs performed by the South Jersey Office. Pirro stated he conducted his audits "[s]hortly after [his] commencement of employment with the company [in June 1994]." Pirro Aff. at ¶ 2. Simone, however, resumed working for Marsellis-Warner on 14 September 1994, after an approximately four month absence. Simone Decl. at ¶¶ 1, 5. Her employment with Marsellis-Warner ended on 5 February 1995. See id. Simone also did not state she and Pirro worked closely during the four month period in which their employment overlapped. Consequently, her unawareness of any inconsistencies in billing allegedly uncovered by Pirro does not make the statements of Pirro less credible.

Lastly, the Hurley Affidavit, submitted by the Defendants, purports to explain how Marsellis-Warner and the Defendants handled the disposal of the materials used at various project sites. Hurley, an independent truck driver who formerly provided trucking services to Marsellis-Warner, stated, in pertinent part:

  I am aware of how [Marsellis-Warner] disposes of
  millings. The disposal of millings figures into every
  job that requires the breaking up or shaving of old
  asphalt. Hauling old pavement to dispose of it adds
  to the costs of a job. This also occurs when dirt is
  taken from a site and it must be disposed of as well.

Hurley Aff. at ¶ 2. Hurley accounts only for those millings he personally removed. As Amsterdam indicated, there were several other projects where millings were removed where Hurley did not provide trucking services. See Supplemental Amsterdam Aff. at ¶ 12. As discussed, it appears at these various other sites, millings used by Jack Fernandez were not accounted for by the Defendants. See id. at ¶ 13.

These affidavits, submitted by the Defendants in opposition to the Preliminary Injunction Application, do not challenge, much more undermine, the existence of a fraudulent billing scheme. Critically, the affidavits do not address the side jobs allegedly performed at, among others, the Metetaconk Golf Course, the Fernandez residences, Larsen Ford and King's Welding yard.*fn21 As such, the affidavits submitted by the Defendants do not frustrate or in any way alter the likelihood Marsellis-Warner will prevail on the merits of several of its claims.

  b. Extent to Which Marsellis-Warner Will Suffer Irreparable
    Injury if a Preliminary Injunction is Not Issued

To obtain injunctive relief, a party must make a clear showing of "immediate irreparable injury" or a "presently existing actual threat." Acierno v. New Castle County, 40 F.3d 645, 655 (3d Cir. 1994); see Caplan v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828, 839 (3d Cir. 1995); Jews for Jesus v. Brodsky, 993 F. Supp. at 311. The mere risk of irreparable harm or the possibility of a remote future injury is not enough. See Acierno, 40 F.3d at 655. The word irreparable "connotes `that which cannot be repaired, retrieved, put down again [or] atoned for.'" Id. at 653. As such, Marsellis-Warner must demonstrate that, absent the issuance of a preliminary injunction, it will suffer harm which cannot be redressed sufficiently following a trial of the matter. See id. at 652; One World Botanicals Ltd. v. Gulf Coast Nutritionals, Inc., 987 F. Supp. 317, 336 (D.N.J. 1997) (quoting Instant Air, 882 F.2d at 801). In other words, the issuance of a preliminary injunction must be the only way to protect Marsellis-Warner from injury or harm. See id.; see also Opticians, 920 F.2d at 195 (quoting Morton v. Beyer, 822 F.2d 364, 372 (3d Cir. 1987)).

In this regard, where money damages are "capable of ascertainment and award at final judgment . . . [and] will fully compensate [the plaintiff] for its losses[,]" a preliminary injunction should not issue. Instant Air, 882 F.2d at 801; see Frank's GMC Truck Center v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988) ("The availability of adequate monetary damages belies a claim of irreparable injury."). Economic loss does not constitute "irreparable harm." See Acierno, 40 F.3d at 652 (quoting Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974)).

As evidence of irreparable harm, Marsellis-Warner submitted:

  [The Defendants] have already altered and destroyed
  business records, and have manufactured [sic] false
  business records in an attempt to undermine any
  investigation and/or discovery of their misconduct.
  There is every reason to believe that if a Writ of
  Attachment and injunctive relief are not issued, . .
  . [the Defendants] will transfer and/or deplete their
  assets so as to put them out of reach of execution,
  and will also attempt to destroy virtually every
  document in their possession which could conceivably
  be used against them.

Preliminary Injunction Moving Brief at 3-4 (emphasis in original).

It appears from the affidavits submitted by Marsellis-Warner the Defendants have already engaged in repeated acts of secreting, removing and/or destroying business records and documentation which may contain evidence implicating them in illegal or unauthorized activities. Amsterdam stated:

    Earlier this year, I was informed by a
  representative of Assuncao Brothers, a contractor
  frequently retained by [Marsellis-Warner], that
  Assuncao Brothers had poured two concrete slabs at
  the Shore Point Bottling plant (one of defendants'
  side jobs) at [Jack] Fernandez's request. When I
  inspected the files at the South Jersey office, I
  discovered a receipt prepared by Rabens or [Jack]
  Fernandez which misrepresented that the two slabs
  were poured for Dow Jones, one of
  [Marsellis-Warner's] legitimate customers. I set the
  document aside to be copied. However, when I returned
  to the office subsequently to pick up a copy of the
  document, it had disappeared.

    Furthermore, shortly after [Jack] Fernandez quit
  his employment with [Marsellis-Warner] in late May
  1998, I visited [Marsellis-Warner's] South Jersey
  office in order to investigate certain problems which
  had been reported with respect to the jobs performed
  out of [Marsellis-Warner's] South Jersey office. I
  observed that someone had removed all of the business
  records pertaining to South Jersey office jobs, which
  were previously contained in Rabens' personal office,
  to an unknown location. The disappearance of these
  documents was never explained by Rabens.

    Moreover, in early July, 1998, I scheduled a
  meeting with Rabens at the South Jersey office. The
  evening before the scheduled meeting, I paid an
  unexpected visit to the South Jersey office when
  neither Rabens nor his staff were [sic] there. I
  observed that: (1) all business records had been
  removed, (2) two computers containing numerous
  documents pertaining to the South Jersey office on
  their hard drives had been removed, and (3) a large
  copy machine that I did not recognize as being the
  property of [Marsellis-Warner] was present on the
  premises. The very next day, when I arrived at the
  South Jersey office to attend the scheduled meeting,
  I discovered that the unfamiliar copy machine had
  disappeared and the computers and the business
  records for the South Jersey office had been
  returned. I was informed by Rabens's staff that the
  hard drives for both computers had mysteriously
  `broken' at the exact same time.

Amsterdam Aff. at ¶¶ 5-7.*fn22 These statements are substantially corroborated by Adeel Malik ("Malik"), an estimator for Marsellis-Warner who occasionally used computer equipment at the South Jersey Office. Malik stated:

  On the night of Tuesday, May 26, 1998, Andrew
  Amsterdam, Rob Shockley, Rebecca Kilduff and I met at
  the South Jersey office at 8:00 p.m. I was present to
  perform a backup of the computer so as to have a copy
  of all correspondence for the projects handled by the
  South Jersey office. When we arrived at the office we
  noticed that the two computers used by defendant
  Charles Rabens and his secretary, Susan McGowan, were
  missing, although the computer in Robert McGreevy's
  office was still there. This came as a shock to me,
  because these computers, to my knowledge, were never
  taken out of the office.

    In addition, Andrew Amsterdam expressed surprise to
  see a new photocopier in the office. During my
  previous visits to [the South Jersey Office], I had
  noticed that this photocopier had been there before.
  Later, we found the old photocopier in a cabinet in
  the storage room of the office.

    Furthermore, in our search for files, we opened the
  drawers of all filing cabinets. In Rabens's room
  there were empty pendaflexes that were labeled with
  tabs, however, there were no files in the
  pendaflexes. The same was the case with the filing
  cabinet in the main room, under the fax machine. We
  left the office at 8:30 p.m.

    During my previous visits to the South Jersey
  office, I had noticed that the files were always
  present in their respective drawers and that all
  three computers were always present.

Malik Aff. at ¶¶ 3-6.

Shockley, who also was present at the South Jersey Office on the evening of 26 May 1998, further corroborates these versions of the events. He stated:

  [O]n May 26, 1998, Andrew Amsterdam, Adeel Malik,
  Rebecca Kilduff and I met at the South Jersey office
  at approximately 8:00 p.m. When we entered the
  office, we immediately noticed a new photocopy
  machine. We then inspected the filing cabinets and
  discovered that all of the office files were missing
  from the pendaflex sleeves. In addition, two of the
  three computers in the office were missing.

    The next morning, Philip Amsterdam, Andrew
  Amsterdam, Philip Pirro and I attended a meeting at
  the South Jersey office with Charles Rabens.
  Immediately upon entering the office, I noticed that
  the new photocopy machine was missing and the old
  photocopy machine had been returned to its place. I
  also noticed that all three computers were present in
  the office. During the meeting, Phil Amsterdam asked
  to see a particular file and when Rabens opened the
  filing cabinet, we could see that all of the files
  had been returned to their pendaflex sleeves.

Shockley Aff. at ¶¶ 6-7.

Significantly, the Defendants have not submitted any affidavits indicating they did not engage in financial manipulation or destroy potentially incriminating business records and documentation of work performed out of the South Jersey Office.*fn23 The Defendants also have failed to demonstrate they are not predisposed to further destroy, hide or manipulate assets unrelated to the underlying litigation. Based on the evidence submitted, it appears defendants are untrustworthy. The likely future dissipation and transfer by the Defendants of otherwise recoverable assets would render a judgment in favor of Marsellis-Warner meaningless.

In this regard, a money judgment which is uncollectible is not an adequate remedy at law. The "`fact that the payment of monies is involved does not automatically preclude a finding of irreparable injury.'" Andrews, 1995 WL 875883, at *11 (quoting United Steelworkers of Am. v. Fort Pitt Steel Casting, 598 F.2d 1273, 1280 (3d Cir. 1979)). This Circuit has recognized the "`unsatisfiability of a money judgment can constitute irreparable injury.'" Gerardi, 16 F.3d at 1373 (quoting Hoxworth, 903 F.2d at 205-06). In Hoxworth, 903 F.2d 186,*fn24 the court held:

  [T]he injunction was a reasonable measure to preserve
  the status quo pending final determination of the
  questions raised by the bill. . . . As already
  stated, there were allegations that [the defendant
  seller] was insolvent and its assets in danger of
  dissipation or depletion. This being so, the legal
  remedy against [the defendant seller], without
  recourse to the fund in the hands of [the third
  party], would be inadequate.

Id. at 196; see Kiesewetter, 98 F.3d at 57-58 (upholding asset freeze "where the very assets subject to a potential judgment will likely be dissipated without entry of the order"); Gerardi v. Pelullo, 16 F.3d 1363, 1373-74 (3d Cir. 1994) (upholding preliminary injunction restraining transfers of assets unrelated to the underlying litigation where defendants were financially unstable). Defendants who have engaged in "past financial manipulations" create a "substantial and real risk . . . that funds would be unavailable to satisfy a reasonably foreseeable judgment in plaintiffs' favor." Andrews, 1995 WL 875883, at *11.

The Defendants argued that unlike the situation in Hoxworth, the Defendants in the instant case are unsophisticated in financial matters. See Preliminary Injunction Opposition Brief at 28-29. They asserted they no longer maintain control over the enterprise they are alleged to have used to perpetrate fraud. Id. at 29. Because they are no longer employees of Marsellis-Warner, the Defendants argued, there exists no threat of continuing harm. Id.

These arguments are unconvincing, however, in light of the affidavits of Amsterdam, Shockley and Malik, which evidence the suspect behavior and untrustworthy character of the Defendants. That the Defendants are no longer in control of the South Jersey Office or employed by Marsellis-Warner is of no moment. A substantial risk remains Jack and Patricia Fernandez will dissipate or otherwise dispose of assets still in their possession or unrelated to their employment with Marsellis-Warner. As stated, the Defendants have not submitted any affidavits contradicting these assertions, or indicating they are not predisposed to further transfer or dissipate their own assets.*fn25

In this case, a preliminary injunction "`is reasonably necessary to preserve the status quo, and thus to ensure the satisfaction of a potential future judgment ordering the transfer of money from [the Defendants] to [Marsellis-Warner.]'" Gerardi, 16 F.3d at 1373-74 (quoting Hoxworth, 903 F.2d at 196). Marsellis-Warner has made a sufficient showing the damages award they will likely be entitled to is in jeopardy. In point of fact, the past financial manipulation of the Defendants and the potential future depletion or dissipation of assets still in the possession of the Defendants create a real and substantial risk money damages may ultimately be unobtainable. See Andrews, 1995 WL 875883, at *11 (citing Hoxworth, 903 F.2d 186). A preliminary injunction is necessary to preserve a future damages remedy against Jack and Patricia Fernandez. Irreparable injury, therefore, is established.

  c. Extent to Which the Defendants Will Suffer Irreparable Harm
    if a Preliminary Injunction is Issued

As discussed, in determining whether to grant a preliminary injunction, the extent to which the Defendants will suffer irreparable harm also must be considered. Pappan, 143 F.3d at 805; Gerardi, 16 F.3d at 1374; Brodsky, 993 F. Supp. at 312. "In considering this harm, the district court must undertake to balance the hardships to the respective parties." Pappan, 143 F.3d at 805 (citing Opticians, 920 F.2d at 197). Balancing the equities, it appears the issuance of an injunction will not harm the Defendants more than a denial would harm Marsellis-Warner. See id.

The Defendants have not submitted any affidavits or otherwise demonstrated they will suffer any harm if they are enjoined from further dissipation of assets in their possession. See Gerardi, 16 F.3d at 1374 (upholding issuance of preliminary injunction where defendants "have not proffered significant evidence regarding any substantial harm they might suffer from the preliminary injunction"). The Defendants merely argue the injury to Marsellis-Warner is not irreparable. See Preliminary Injunction Opposition Brief at 26-30.

In any event, the Defendants may not complain they will suffer irreparable injury if a preliminary injunction is issued. As explained in more detail, the Preliminary Injunction Application is narrowly tailored to protect Marsellis-Warner while imposing a minimal burden on Jack and Patricia Fernandez. Marsellis-Warner merely is seeking to protect the status quo; the conduct of the Defendants is not otherwise limited.

It appears, moreover, "any difficulties [Jack and Patricia Fernandez] now face[] were brought on by [their] own conduct." Pappan, 143 F.3d at 805. The suspect dealings and untrustworthiness exhibited by the Defendants created a substantial risk to Marsellis-Warner best assuaged through injunctive relief. Any injury Jack and Patricia Fernandez may suffer as a result of the issuance of a preliminary injunction is outweighed by the irreparable harm Marsellis-Warner will suffer if Jack and Patricia Fernandez are not enjoined from further depleting their assets. As such, the balance of equities favors Marsellis-Warner. This factor also supports the issuance of a preliminary injunction.

  d. Extent to Which the Public Interest Favors the Issuance of
    a Preliminary Injunction to Marsellis-Warner

Finally, it must be determined whether the issuance of a preliminary injunction serves the public interest. Pappan, 143 F.3d at 807; American Telephone & Telegraph Co., 42 F.3d at 1427. Where a party demonstrates both the likelihood of success on the merits and irreparable injury, "it almost always will be the case that the public interest will favor" the issuance of an injunction. American Telephone & Telegraph Co., 42 F.3d at 1427 n. 8; see Brodsky, 993 F. Supp. at 312. The issuance of a preliminary injunction in the instant matter clearly serves the public interest in preserving the strict fiduciary duty owed employers by employees. Injunctive relief of this sort helps to insulate employers from further acts of financial manipulation, fraud or embezzlement by their employees and protects third party clients of the employer who may be indirectly affected by the fraud.

e. Scope of Injunction

Before imposing a preliminary injunction encumbering the assets of a defendant to protect a future money judgment, a "court must make some attempt reasonably to relate the value of the assets encumbered to the likely value of the expected judgment." Hoxworth, 903 F.2d at 198. This Circuit has identified problems stemming from the issuance of extremely broad preliminary injunctions. For instance, where the claims of plaintiffs "[are] worth, at most $25,000, then a preliminary injunction encumbering well over $10 million of assets to protect the likely judgment obviously would involve funds that could not `be[] the subject of the provisions of any final decree.'" Id. (quoting De Beers Consolidated Mines v. United States, 325 U.S. 212, 220, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945)).

The exact value of the assets of Jack and Patricia Fernandez is unclear from the submissions of the parties. Significantly, it appears the Defendants have refused to produce their personal financial records in response to the document request of Marsellis-Warner. See Supplemental Amsterdam Aff. at ¶ 23. Under other circumstances, further pre-judgment asset discovery may be necessary to reveal the location and existence of unknown assets. In the instant case, however, a Discovery Stay has been imposed pending resolution of the Motion to Stay, discussed below. See 11 January 1999 Order.*fn26

Even without the benefit of further discovery of the assets of the Defendants, it appears the preliminary injunction sought by Marsellis-Warner represents a reasonable encumbrance. The damages alleged by Marsellis-Warner appear to be reasonably calculated. According to Amsterdam, the damages incurred by Marsellis-Warner as a result of the actions of the Defendants are at least $235,274.40. See Supplemental Amsterdam Aff. at ¶ 23 and Exhibit I, attached thereto. In calculating damages, Marsellis-Warner details the specific equipment and workers used at individual project sites, the hours spent working and the costs incurred in connection therewith. See Supplemental Amsterdam Aff. at Exhibit I.

The concerns expressed in Hoxworth are not present here. The Defendants are not a large securities firm potentially subject to the claims of a class of creditors. Marsellis-Warner is not alleging the Defendants are in possession of millions of dollars in assets; rather, it simply is trying to protect a future monetary judgment in the realm of approximately only $235,000. As such, any discrepancy between the value of the expected judgment and the assets likely encumbered will not be of such an unreasonable nature so as to preclude the issuance of injunctive relief. See Gerardi, 16 F.3d at 1373 n. 18 (where expected judgment was in excess of $1,700,000, preliminary injunction prohibiting defendants from dissipating $1,500,000 of potential litigation recovery deemed reasonable); see also Hoxworth, 903 F.2d at 199 (at preliminary stages of litigation, a district court need not "make an extended effort to match the value of assets encumbered to the expected value of the judgment dollar for dollar").

Accordingly, the Preliminary Injunction Application, insofar as it seeks the encumbrance of no more than $250,000 worth of assets of the Defendants, is granted. As described in the accompanying order, the Defendants are enjoined from concealing, converting, selling, transferring or otherwise dissipating any assets, including cash, stocks, bonds, other personalty or realty, in which they have an ownership, legal or beneficial interest, which may be subject to an approximately $250,000 monetary judgment rendered in favor of Marsellis-Warner. The Defendants are further prohibited from transferring any funds outside the ordinary course of business and from transferring any funds outside the country without prior approval of the court. Additionally, the prohibition against the destruction of business records or documents relevant to the instant action set forth in the 22 September 1998 Order to Show Cause remains in effect.

f. Bond Requirement

As mentioned, before a preliminary injunction may be issued, the applicant for the injunction usually must give security

  in such sum as the court deems proper, for the
  payment of such costs and damages as may be incurred
  or suffered by any party who is found to have been
  wrongfully enjoined or restrained.

Fed.R.Civ.Pro. 65(c) ("Rule 65(c)"); Kiesewetter, 98 F.3d at 59-60 (stating security must be given unless balance of equities weighs overwhelmingly in favor of party seeking injunction and then district court has discretion to waive Rule 65(c) bond requirement after proper finding).

The Third Circuit has strictly interpreted the bond requirement. See Kiesewetter, 98 F.3d at 59; Waterfront Comm'n of N.Y. Harbor v. Construction & Marine Equip. Co., 928 F. Supp. 1388, 1405 (citing Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 210 (3d Cir. 1990)). The Hoxworth court observed:

  Although the amount of the bond is left to the
  discretion of the court, the posting requirement is
  much less discretionary. While there are exceptions,
  the instances in which a bond may be required are so
  rare that the requirement is almost mandatory. We
  have previously held that absent circumstances where
  there is no risk of monetary loss to the defendant,
  the failure of a district court to require a
  successful applicant to post a bond constitutes
  reversible error.

903 F.2d at 210; see Nat'l Credit Management, 21 F. Supp.2d at 463-64; Waterfront Comm'n of N.Y. Harbor, 928 F. Supp. at 1405. The issuance of an improper interlocutory order "may harm the defendant and a bond provides a fund to use to compensate incorrectly enjoined defendants." Instant Air Freight Co., 882 F.2d at 804; see Nat'l Credit Management, 21 F. Supp.2d at 464; Waterfront Comm'n of N.Y. Harbor, 928 F. Supp. at 1405. The bond requirement also "deters rash applications for interlocutory orders; the bond premium and the chance of liability on it cause plaintiff to think carefully beforehand." Instant Air Freight Co., 882 F.2d at 804; see Nat'l Credit Management, 21 F. Supp.2d at 464.

The protection afforded by the imposition of a bond offers an otherwise unavailable avenue of recovery to an enjoined defendant. Generally, with rare exceptions, a defendant wrongfully enjoined only has recourse against the bond. As the Supreme Court has observed: "A party injured by the issuance of an injunction later determined to be erroneous has no action for damages in the absence of a bond." Waterfront Comm'n of N Y Harbor, 928 F. Supp. at 1405 (quoting W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, Cork, Linoleum and Plastic Workers, 461 U.S. 757, 770 n. 14, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983)); see also Kiesewetter, 98 F.3d at 59. Because a preliminary injunction is granted before a trial is held on the merits, the possibility it was incorrectly imposed is a reality. See Clark v. K-Mart Corp., 979 F.2d 965, 968 (3d Cir. 1992); Nat'l Credit Management, 21 F. Supp.2d at 464; Waterfront Comm'n of N.Y. Harbor, 928 F. Supp. at 1405.

As indicated, in Hoxworth, this Circuit observed, "[w]hile there are exceptions, the instances in which a bond may not be required are so rare that the requirement is almost mandatory." 903 F.2d at 210. This strict reading of Rule 65(c) notwithstanding, there may be instances in which a strict reading of the Rule 65(c) is inappropriate.

In Temple University v. White, 941 F.2d 201 (3d Cir. 1991), cert. denied sub nom. 502 U.S. 1032, 112 S.Ct. 873, 116 L.Ed.2d 778 (1992), the Circuit recognized an exception to the bond requirement pursuant to Rule 65(c). See id. at 219. Relying upon an approach utilized by the First Circuit, the court in Temple University determined, "at least in noncommercial cases, the court should consider the possible loss to the enjoined party together with the hardship that a bond requirement would impose on the applicant." Id. (quotation omitted); see Kiesewetter, 98 F.3d at 59-60 (quoting Temple University, 941 F.2d at 219); Waterfront Comm'n of N.Y. Harbor, 928 F. Supp. at 1405.

The exception proffered in Temple University involves a balance of the equities of the potential hardships that each litigant would suffer as a result of the imposition of a preliminary injunction. See Kiesewetter, 98 F.3d at 60. When the balance of these equities overwhelmingly favors the party seeking the injunction, a district court has the discretion to waive the Rule 65(c) bond requirement. See id.

The scope of the possible loss to Marsellis-Warner appears to exceed $235,274.40. See Supplemental Amsterdam Aff. at ¶ 23. Marsellis-Warner believes, however, its actual losses are significantly higher, but have not yet been uncovered. See id.

Applying the above principles to the instant case, it appears Marsellis-Warner should not be exempted from the bond requirement. Marsellis-Warner does not appear to be an impecunious party. Accordingly, there appears no reason why Marsellis-Warner cannot set aside adequate revenues to satisfy a bond requirement in the instant matter. No economic hardship or duress will be imposed upon Marsellis-Warner by the imposition of a bond.

The computation of the bond amount may be set "in such sum as the court deems proper." Fed.R.Civ.P. 65(c); see Hoxworth, 903 F.2d at 210; Nat'l Credit Management, 21 F. Supp.2d at 465; Waterfront Comm'n of N.Y. Harbor, 928 F. Supp. at 1405; see also Maryland Dep't of Human Resources v. United States Dep't of Agriculture, 976 F.2d 1462, 1483 (4th Cir. 1992). Under the circumstances existing in this case, a large bond is necessary to protect the Defendants against the possibility they are later determined to have been erroneously enjoined. In this regard, a bond of no less than $250,000.00 will suffice.

B. Standard for a Writ of Attachment

Marsellis-Warner also seeks an order authorizing the issuance of a writ of attachment against the assets of the Defendants located in New Jersey, pursuant to Section 2A:26-2*fn27 and Rule 64.*fn28 See Preliminary Injunction Moving Brief at 3.

State law governs an application for a writ of attachment. Fed.R.Civ.P. 64. Pursuant to N.J.S.A. 4:60-5(a) ("Rule 4:60-5(a)"), a writ of attachment may issue where:

  (1) there is a probability that final judgment will
  be rendered in favor of the plaintiff; (2) there are
  statutory grounds for issuance of the writ; and (3)
  there is real or personal property of the defendant
  at a specific location within this State with is
  subject to attachment.

N.J.S.A. 4:60-5(a).

The purpose of a writ of attachment is "for the collection of an ordinary debt by seizure of the property of the debtor." Wolfson v. Bonello, 270 N.J. Super. 274, 289, 637 A.2d 173 (App. Div. 1994). As such, a writ of attachment is an extraordinary remedy. Id. (quoting Russell v. Fred G. Pohl, Co., 7 N.J. 32, 39, 80 A.2d 191 (1951)). Applications for attachment must be construed accordingly. Id. at 290, 637 A.2d 173.

Such an analysis pursuant to Rule 64 and the relevant State law is not required in the instant case. It appears a preliminary injunction effectively freezing the assets of the Defendants renders a writ of attachment redundant, and the relief afforded Marsellis-Warner duplicative. This Circuit has applied the preliminary injunction standards under Rule 65 in evaluating a request for injunctive relief which is akin to a request for pre-judgment attachment. See Hoxworth, 903 F.2d 186 (applying Rule 65 rather than Rule 64 standards where requested injunctive relief was in the form of an asset freeze to protect a potential future damages remedy).

It appears, therefore, Rule 64 is not the only procedural mechanism which may be used to prevent a litigant from concealing or transferring assets to prevent satisfaction of a potential monetary judgment. As discussed in the preceding sections, assets of defendants unrelated to the underlying litigation may be frozen when money damages are requested. See, e.g., id.

The Second Circuit, adopting the reasoning of the Third Circuit in Hoxworth, more directly addressed the interplay between Rule 64 and Rule 65. Alliance Bond Fund, Inc. v. Grupo Mexicano de Desarrollo, S.A., 143 F.3d 688 (2d Cir.), cert. granted, ___ U.S. ___, 119 S.Ct. 537, 142 L.Ed.2d 447 (1998), involved the sale of notes to United States investment funds (the plaintiffs) by a Mexican holding company (the defendant). Years later, when the defendant defaulted on the notes, the plaintiffs caused the acceleration of the principal. Because the defendant owed more than $450 million to other creditors, the plaintiffs sought damages and a preliminary injunction restraining the defendants from assigning notes issued by the Mexican government to settle its obligations to other creditors. The district court granted a preliminary injunction preventing the defendant from dissipating, transferring, conveying or otherwise encumbering the rights of the plaintiffs to receive benefit from the notes. The Second Circuit, relying on Rule 65, affirmed the issuance of the preliminary injunction.

On appeal to the Second Circuit, the defendant argued Rule 64 is the only procedural mechanism by which to prevent a litigant from concealing or dissipating assets to prevent satisfaction of a potential judgment. The defendant further argued, and the court agreed, prejudgment attachment under Rule 64 was unavailable because the notes in issue were not located in New York. Id. at 693.

The court nevertheless exercised its inherent equity power under Rule 65 to freeze the assets of the defendant, including those not directly involved in the litigation. Interpreting Supreme Court precedent, the Second Circuit held the district court had the authority to issue a preliminary injunction to protect the right of the plaintiffs to recover monetary damages in light of the threat of dissipation of assets not directly involved in the pending litigation. See id. at 696 (observing the Supreme Court in De Beers, 325 U.S. 212, 65 S.Ct. 1130, 89 L.Ed. 1566, Deckert v. Indep. Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940) and United States v. First Nat'l City Bank, 379 U.S. 378, 85 S.Ct. 528, 13 L.Ed.2d 365 (1965) broadly construed the power of a district court to grant injunctive relief).

Alliance stands for the proposition that where prejudgment attachment pursuant to Rule 64 is not possible, a preliminary injunction freezing the assets of the defendant provides an adequate means of protecting a potential future damages judgment. See id.; see also Local 397, Int'l Union of Electronic, Elec., Salaried, Mach. & Furniture Workers v. Midwest Fasteners, Inc., 763 F. Supp. 78, 82 (D.N.J. 1990) (CSF) (citing Hoxworth, 903 F.2d at 197) (stating plaintiff union was not required to seek a writ of attachment in light of authority of the district court to issue a preliminary injunction seizing assets to protect potential future damages remedy). In the instant case, injunctive relief pursuant to Rule 65 is sufficient. A preliminary injunction under Rule 65 adequately freezes the assets of the Defendants. A writ of attachment pursuant to Rule 64, even if found to be available under New Jersey law, is nevertheless unnecessary.

Conclusion

For the reasons stated, the Preliminary Injunction Application is granted. The Attachment Request of Marsellis-Warner is denied. The Motion to Stay is denied without prejudice with leave to refile for the reasons expressed on the record during the 23 February 1999 Hearing.


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