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17-2745-cv 

Fung-Schwartz v. Cerner Corp. 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 13th day of June, two thousand eighteen. 

PRESENT: JON O. NEWMAN, 

JOSÉ A. CABRANES, 

SUSAN L. CARNEY, 

Circuit Judges. 

 

JENNIFER FUNG-SCHWARTZ, M.D., JENNIFER

FUNG-SCHWARTZ, D.P.M., L.L.C., 

Plaintiffs-Appellants, 17-2745-cv 

v. 

CERNER CORPORATION, CERNER HEALTHCARE 

SOLUTIONS, INC., 

Defendants-Appellees. 

 

FOR PLAINTIFFS-APPELLANTS: ELIZABETH SHIELDKRET, Forest Hills, 

NY. 

FOR DEFENDANTS-APPELLEES: PATRICK N. FANNING (John M. Lyons, on 

the brief), Shook, Hardy & Bacon L.L.P., 

Kansas City, MO. 

Appeal from an August 8, 2017 order of the United States District Court for the Southern 

District of New York (Vernon S. Broderick, Judge). 
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UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the cause be, and it hereby is, VACATED AND 

REMANDED. 

Plaintiffs-Appellants appeal the District Court’s order denying their motion for a preliminary 

and permanent injunction. The District Court’s written order dated August 8, 2017 states that 

“Plaintiffs’ motion for a temporary restraining order and preliminary injunction . . . is DENIED.” 

A-174. At a conference held on August 4, 2018, however, the District Court made several 

statements that appeared to grant the very injunctive relief sought in Plaintiffs-Appellants’ motion 

(although the statements were inconsistent as to the duration of the injunction): 

 “I still don’t see the issue for a TRO, so I’m going to maintain my ruling with regard 

to that, with regard to the system and keeping it on during the pendency of this case, and 

I’ll make the direction, Mr. Fanning, that your client shouldn’t use the kill switch, 

whatever that is.” A-164 (emphasis added). 

 “As I’ve indicated, the system should remain on.” A-168. 

 “[A]s I said, at least during the pendency of the motion to dismiss, the system should remain 

on.” A-169 to -70 (emphasis added). 

Upon review, we are unable to discern the intended effect of the District Court’s various 

written and oral pronouncements regarding Plaintiffs-Appellants’ motion for preliminary and 

permanent injunctive relief. We therefore VACATE the District Court’s order and REMAND the 

cause for further proceedings. We offer no opinion as to the merits of Plaintiffs-Appellants’ motion. 

If, on remand, the District Court intends to order some form of preliminary relief, the Court should 

justify such relief by making the necessary factual and legal findings, see N. Am. Soccer League, LLC v. 

United States Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018), and should specify: (1) the precise scope 

of the relief, see Fed. R. Civ. P. 65(d)(1); and (2) whether that order remains in effect (a) until the 

ultimate termination of this case or (b) only until a decision has been entered on DefendantsAppellees’ Partial Motion to Dismiss Counts 1–16 and 18, Fung-Schwartz v. Cerner Corp., No. 17-cv0233-VSB (S.D.N.Y. Aug. 18, 2017), ECF No. 38. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk