United States District Court, D. New Jersey
ROBIN C. TOLVIN, Plaintiff,
JOSEPH J. DOUGHERTY, et al., Defendants.
MICHAEL A. SHIPP UNITED STATES DISTRICT JUDGE
matter comes before the Court upon the Court's review of
Defendant Joseph J. Dougherty's
("Defendant") Removal of Plaintiff Robin C.
Tolvin's ("Plaintiff) Application for Temporary
Injunctive Relief from the Superior Court of New Jersey,
Chancery Division, Monmouth County. (Def.'s Notice of
Removal, Ex. 1 C'OSC Documents'*), ECF No. 1
On June 26, 2019, prior to removal, the Superior Court
entered an Order to Show Cause as to why temporary restraints
should not be entered. (OSC Documents 6-10.) Defendant
subsequently removed the matter to this Court on the basis of
diversity jurisdiction, 28 U.S.C. § 1332, stating that
complete diversity exists and the amount in controversy
exceeds $75, 000. (Id. at 2-3 ¶¶ 6-11.)
Court has carefully considered Plaintiffs application and
decides the matter without oral argument pursuant to Local
Civil Rule 78.1. For the reasons set forth below, the Court
denies Plaintiffs application for temporary restraints. The
Court, however, orders the parties to submit a joint proposed
expedited briefing schedule and perform expedited discovery
to precede a preliminary injunction hearing.
Complaint provides the following factual
allegations. Defendant is Plaintiffs nephew. (OSC
Documents 12-13¶*2, 7, ECF No. 1.) In September 2018,
Defendant told Plaintiff he was leaving his job as an
associate at Duval & Stachenfeld, LLP "to take a job
as general counsel for REM Technology Consulting Services,
Inc." ("REMTCS"). (Id. ¶ 9.)
Defendant told Plaintiff that REMTCS would not pay Defendant
a salary but instead would compensate Defendant based on the
amount of new business he generated. (Id. ¶
11.) Plaintiff loaned Defendant $300, 000 for living expenses
to support Defendant while he attempted to bring in new
business for REMTCS. (M¶¶ 13-16.)
November 2018, Defendant told Plaintiff "he had the
opportunity to invest in REMTCS and that the minimum
individual investment was $5, 000, 000." (Id.
¶ 17.) Defendant further told Plaintiff "she could
invest $1, 600, 000 in REMTCS under the umbrella of his
shares." (Id. ¶ 18.) Plaintiff learned
that she could withdraw that sum from her JP Morgan Chase
Bank, N.A. IRA accounts, but that those withdrawals would
create "significant federal and New York State tax
liability." (Id. ¶ 19.) Plaintiff notified
Defendant of those tax liabilities, and Defendant told
Plaintiff he "would take care of them. (Id. T
20.) Plaintiff, therefore, withdrew $1, 600, 000 from two IRA
accounts and wired that sum from her JP Morgan Chase Bank,
N.A. account to Defendant's bank account. (Id.
Plaintiff asked Mignone several times whether REMTCS's
president, Richard Malinowski ("Malinowski"), was
aware that she invested in his company, and Mignone stated
that Malinowksi was aware of her investment. (See, e.g.,
Id. ¶¶ 29-34, S?.) Defendant also confirmed
with Plaintiff that she had invested in REMTCS and reiterated
his agreement to pay Plaintiffs tax liability, (/rf.
of April 15, 2019, Defendant... did not provide ... Plaintiff
with any money to pay the tax liabilities that she had as a
result of withdrawing $1, 600, 000 from her IRAs."
(Id. ¶ 41.) Plaintiff owes $552, 658 in federal
taxes and $199, 456 in New York State and City taxes.
(Id. ¶¶ 43-44.) Defendant also has not
repaid Plaintiff for her $300, 000 loan. (Id. ¶
Plaintiffs instant application seeks an order temporarily
restraining Defendant from withdrawing or releasing funds
from any of Defendant's bank accounts, as well as
requiring Defendant to provide Plaintiff with copies of his
bank records and statements from September I, 2018 to the
present. (PL's Moving Br. 40.)
Supreme Court [has] held that [a] [TRO] should be treated as
a preliminary injunction." NutraSweet Co. v. Vit-Mar
Enters., Inc., ! 12 F.3d 689, 693 (3d Cir. 1997).
Because the grant of injunctive relief is "an
extraordinary remedy[, ]" a TRO "should be granted
only in limited circumstances." Kos Pharms., Inc. v.
Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (internal
quotation marks and citation omitted). This remedy
"should be granted only if "(1) the plaintiff is
likely to succeed on the merits; (2) denial will result in
irreparable harm to the plaintiff; (3) granting the
injunction will not result in irreparable harm to the
defendant; and (4) granting the injunction is in the public
interest.'" NittraSweel Co. v. Vit-Mar Enters.,
Inc., 176 F.3d 151, 153 (3d Cir. 1999) (quoting
Maldonado v. Hoitstoun, 157 F.3d 179, 184 (3d Cir.
1998)). The Third Circuit has further instructed that a party
seeking a TRO must meet all four factors, because "[a]
[movant's] failure to establish any element in its favor
renders [this remedy] inappropriate." Id.
argues that Defendant "stole so much money from her that
she now faces financial ruin." (PL's Moving Br. 36.)
As such, Plaintiff argues she requires immediate temporary
injunctive relief to: (I) "stop [Defendant] from
spending any more of her money before all of her money is
gone"; and (2) "find out what [Defendant] did with
her money so she can find any money that remains unspent and
locate any assets [Defendant] purchased with her money that
she can recover." (Id.)
Court finds Plaintiff failed to sufficiently establish
immediate irreparable harm. Although Plaintiffs factual
allegations are sympathetic, the Court cannot grant Plaintiff
the extraordinary relief she seeks solely based upon monetary
damages. Indeed, Plaintiff explicitly noted that "[t]he
subject matter of this litigation is the money that
[Plaintiff lost]" and "[i]f the Court does not
grant the temporary injunctive relief that [Plaintiff]
requests, there is the real risk that, if any of [Plaintiffs]
money remains unspent, more of her money will be spent by
[Defendant] and lost to [Plaintiff]." (Id. at
39.) Third Circuit precedent is clear, however, that
"purely economic injury, compensable in money, cannot
satisfy the irreparable injury requirement" when a
plaintiff "has failed to articulate and adduce proof of
actual or imminent harm which cannot otherwise be compensated
by money damages ...." Frank \s GMC Truck Cir., Inc.
v. Gen. Motors Corp., 847 F.2d 100, 102-03 (3d
Cir. 1988) (citation and alteration omitted)
('"Although we are not insensitive to the financial
distress suffered by the plaintiff, we do not believe that
the loss of income alone constitutes irreparable
harm."); see also Instant Air Freight Co. v. C.F.
Air Freight, Inc., 882 F.2d 797, 801 n.7 (3d Cir. 1989)
(noting that even under the Crowe v.
DeGioia standard, parties must demonstrate harm
cannot be redressed by monetary damages under the irreparable
harm prong); Reitly v. City of Harrisburg, 858 F.3d
173, 179 n.4 (3d Cir. 2017) (;i[T]he availability
of money damages for an injury typically will preclude a
finding of irreparable harm."). Here, Plaintiff fails to
support her application with any allegations other than her
economic injury, and therefore, the Court denies Plaintiffs
application for temporary restraints.
Court, however, finds good cause to allow Plaintiff the
opportunity to present her arguments at a preliminary
injunction hearing. In advance of that hearing, the parties
may conduct expedited discovery, and must ...