listed on the bid proposal Southwest submitted to SWCCCASE. The spring of 2003
was the time for Alpha to seek a preliminary injunction. Now, nine months later,
Sunrise has secured valid contracts to provide CPS and SWCCCASE with busing
services through the 2003-04 school year. Additionally, Miester has been the Director
of Operations at Southwest, now Sunrise, for the last seven months. To grant plaintiff's
requested relief and enjoin Miester at this point would not preserve the status quo.
Alpha’s requested relief may have been appropriate seven months ago, but now would
only serve to provide plaintiff with some of the ultimate relief it seeks.

Additionally, Alpha has not provided any evidence that its standing in the market
will be further diminished if injunctive relief is not granted. Alpha is requesting that we
enjoin Miester from working on the CPS and SWCCCASE contracts, using its
proprietary information, soliciting its employees and making disparaging comments. At
this point in time, the harm, if any, from these actions has already occurred. Any Alpha
employees who wanted to work at Sunrise are already there. Moreover, any harm from
Sunrise using Alpha’s driver lists, route sheets and billing information has already
occurred. Sunrise’s staff is composed of almost exclusively former Alpha employees,
yet Alpha only seeks to enjoin Miester. We cannot imagine how solely enjoining
Miester could prevent the alleged harm. Sunrise’s other employees are more than
capable of servicing the CPS and SWCCCASE contracts. Enjoining Miester is Alpha’s
attempt to punish rather than deter and cannot justify the issuance of a preliminary
injunction. Rondeau v. Mosiness Paper Corp., 422 U.S. 49, 61-2 (1975).

In light of the above discussion we find that allowing Miester to continue to work
at Sunrise on the CPS and SWCCCASE contracts will not cause Alpha irreparable

13


informed the company that they would be leaving to retire to Mississippi where Mrs.
Miester’s family resides. In anticipation of Miester’s retirement, Wagner prepared a
benefit report that he and Miester signed on March 25, 2003. According to the report,
Alpha owed Miester $20,466.90 in compensation for unused vacation and sick leave
and other additional bonuses. This report overstated Miester’s unused leave because
shortly before its.creation, Wagner instructed Glass to add additional unearned vacation
and sick leave to Miester's personne! file.’ Also in March, 2003, Miester asked Bruce to
calculate the billing revenue for CPS, SWCCCASE and District 218. Around April,
2003, Miester asked Glass to copy all of Alpha’s payroll documents for him, including
the employees’ address information and social security numbers. Then on April 4,
2003, Wagner submitted his resignation letter to Cook-lllinois effective April 13, 2003.
Sometime after the school districts awarded their transportation contracts to
Southwest, John Benish Jr. (“Benish Jr.”), the Chief Operating Officer at Cook-Illinois,
asked Miester to contact Nancy Ranquist (Ranquist”), the executive director of
SWCCCASE, to obtain a copy of Southwest's bid proposal for the SWCCCASE
transportation contract. Ranquist provided Miester with the report, which listed Miester
as Southwest's Vice President. Shortly thereafter, Miester learned that Benish Jr. and
other Cook-lllinois employees planned to visit Ranquist to discuss SWCCCASE's
decision to award Southwest its transportation contract. Miester called Ranquist to tell

her that Benish Jr. and the others were coming and asked that she not say anything

“Wagner also instructed Glass to add unearned vacation and sick leave to her own
personnel file and those of numerous other Alpha employees.


hindered the ability of the corporation to conduct the business for which it was
developed. Foodcomm Intl. v. Barry, 328 F.3d 300, 303 (7th Cir. 2003). A successful
breach of fiduciary duty claim is not limited to directors and officers of a company. /d. at
304. An employee, as an agent of his employer, can be found to have breached his
fiduciary duty to the company. /d. An employee can breach his fiduciary duty to the
company if while under its employ he: (1) fails to inform the company that other
employees are forming a rival company or engaging in other fiduciary breaches; (2)
solicits the business of a single one of the company’s clients; (3) uses the company’s
facilities or equipment to develop his new business; or (4) solicits fellow employees to
join a rival business. /d. at 303.

Based on the evidence at the hearing, Alpha has established a significant
likelihood of success on the merits of its breach of fiduciary duty claim. Although
Miester was not an officer or director, he was an employee and agent of Alpha. As
Director of Operations, Miester’s job involved a significant amount of autonomy and
discretion, hallmarks of a fiduciary. See Foodcomm, 328 F.3d at 304. As an agent and
fiduciary of Alpha, Miester owed it certain duties and we find that at a trial on the merits,
Alpha will likely prove that Miester breached those duties.

Miester testified that he was aware of Wagner's plans to start Southwest and
that he did not inform any officers or directors at Alpha or Cook-lllinois of Wagner's
plans. Moreover, Ranquist, in her deposition, stated that prior to Southwest's bid for the
SWCCCASE transportation contract, Miester told her that he would be joining
Southwest in a similar role to the one he was currently playing at Alpha. She also

stated that his impending employment at Southwest was a factor that helped Southwest

9


i

Additionally, somewhere between 35 and 80 of Alpha’s bus drivers started working for
Southwest. Miester was instrumental! in Southwest’s acquisition of some of these
employees. While at Alpha, Miester had a comprehensive list of Alpha’s bus drivers
and their contact information. At the hearing, Miester admitted that as a Southwest
employee he used the list to contact eight Alpha drivers and successfully recruit five to
work for Southwest."

Southwest’s dates of operation are not entirely clear. Alpha was aware of
Southwest by March, 2003 when Southwest won the SWCCCASE transportation
contract. Alpha was also aware of Wagner and Miester’s possible involvement with
Southwest shortly thereafter when it obtained a copy of Southwest's bid proposal for
the SWCCCASE contract, listing Wagner as the President and Miester as the Vice
President. Southwest began servicing CPS, SWCCCASE and District 218 in the
summer of 2003.

However, Alpha did not file suit against Southwest and the Named Defendants
until July 18, 2003 and agreed to a preliminary injunction hearing date in late October,
2003. During the pendency of this case, Southwest experienced some financial
difficulties after its line of credit was cancelled, but was able to arrange for a new
company to step in and fulfil its transportation contract obligations. Southwest
contacted Sunrise Transit, Inc. and on September 19, 2003, Sunrise Transit, Inc.

formed Sunrise Southwest LLC (“Sunrise”). Sunrise began operating out of

‘While working for Alpha, Miester also unsuccessfully tried to recruit Bruce, Glass and
Scott Skolek, a mechanic for Alpha’s sister company Chicago School Transit, to join him at
Southwest.


about him. In her deposition, Ranquist stated that prior to SWCCCASE’s decision to
award its transportation contract to Southwest, Miester told her that he would be
working for Southwest in a role similar to his current role at Alpha.

On May 23, 2003, Miester’s last day at Alpha, he met with Marco Moreno, Cook-
Illinois’ Chief Financial Officer, to discuss adequate compensation for his unused
vacation and sick leave. They agreed to the amount of $23,234.65, conditioned on
Miester executing a valid noncompetition agreement (“Agreement”) with Alpha. After
consulting an attorney, Miester refused to sign the Agreement and Alpha refused to
release the $23,234.65.° Ten days later, on June 3, 2003, Miester signed a ten year
employment contract with Southwest and a covenant not to compete, without seeking
any legal advice. ° Based on these facts, we find that Miester did not leave Alpha to
retire to Mississippi, but rather left to work for Southwest."°

Between the spring and summer of 2003, a majority of Alpha’s mechanics, and

all of its dispatchers and office workers, except Bruce and Glass, left to join Southwest.

*At the hearing, Miester could not explain why he refused to sign the Agreement. His
refusal strongly suggests that he never planned on retiring to Mississippi in 2003, but rather
intended to leave Alpha to work for Southwest. If Miester truly planned on retiring to Mississippi
with his wife, his refusal to sign the Agreement was irrational. The Agreement was not
enforceable in Mississippi and its execution would not have affected Miester's retirement plans.

° Miester’s explanation for signing a ten year employment contract with Southwest ten
days after his “retirement” is similarly irrational. Miester testified that he contacted Southwest
about a job because without the $23,234.65, he could not afford to retire. However, had
Miester signed the Agreement, Alpha would have provided him with the $23,234.65 he needed
to retire.

This conclusion is supported by the credible testimony of the other four witnesses at
the hearing and the deposition testimony of Nancy Ranquist. Having found Miester’s testimony
not credible on this issue, we also find the remainder of his testimony at the hearing not credible
and self serving.


Alpha’s employees; and (4) making any disparaging remarks concerning Alpha."

In order to obtain a preliminary injunction, Alpha must satisfy five criteria. First, it
must show: 1) some likelihood of success on the merits; 2) that no adequate remedy at
law exists; and 3) that it will suffer irreparable harm if the injunction is not granted. See
Ty, Inc. v. The Jones Group, 237 F.3d 891, 895 (7" Cir. 2001) (citing Abbott Labs. v.
Mead Johnson & Co., 971 F.2d 6, 11 (7" Cir. 1992). “If the court is satisfied that these
three conditions have been met, then it must consider the irreparable harm that the
nonmoving party will suffer if preliminary relief is granted, balancing such harm against
the irreparable harm the moving party will suffer if relief is denied.” Ty, Inc., 237 F.3d at
895. Last, the court considers whether and how the public interest will be affected if the
injunction is granted or denied. /d. “This process involves engaging in what we term the
sliding scale approach; the more likely the plaintiff will succeed on the merits, the less
the balance of irreparable harms need favor the plaintiff's position.” /d.

Likelihood of Success on the Merits
Breach of Fiduciary Duty

In order to demonstrate a likelihood of success on the merits, Alpha must show
that it has a better than negligible chance of success. See Platinum Home Mortgage
Corp. v. Platinum Financial Group, Inc., 149 F.3d 722, 726 (7" Cir. 1998). To succeed
on the merits of a breach of fiduciary duty claim Alpha must show that Miester (1)

actively exploited his position within the corporation for his own personal benefits; or (2)

Alpha requested additional relief in its Statement of Requested Relief filed with the
Court on October 24, 2003. However, in Alpha’s most recent filing with this Court, its Amended
Proposed Findings of Fact and Conclusions of Law (“Findings”), Alpha limited itself to these
four requests. We will limit our discussion to the relief requested in the Findings.

8


Minute Order Form (06/97)

United States District Court, Northern District of Iinois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other

Joan B. Gottschail than’ Assigned Judge

Michael T. Mason

CASE NUMBER 03 C 5009 DATE 1/5/2004
CASE Alpha School Bus Co. vs. Wagner et al.
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]
DOCKET ENTRY:
(1) Oo Filed motion of { use listing in “Motion” box above.]
(2) Qo Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due.
(4) i) Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for _ at
(6) a Pretrial conference{held/continued to] [set for/re-set for] on set for at
(7) QO Trial[set for/re-set for] on at
(8) Qo {Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
QFRCP4(m) Local Rule 41.1 OOFRCP41(a)(1) CO FRCP41(a)(2).
ao) of [Other docket entry] REPORT AND RECOMMENDATION is hereby submitted to Judge Gottschall
recommending that the District Court DENY plaintiff Alpha’s request for preliminary injunction [36-2] for the
reasons stated in the attached Report and Recommendation. Specific written objections to this report and
recommendation may be served and filed within 10 business days from the date that this order is served. Fed. R.
Civ. P. 72(a). Failure to file objections with the District Court within the specified time will result in a waiver of
the right to appeal all findings, factual and legal, made by this Court in the report and recommendation Lorentzen
v. Anderson Pest Control, 64 F.3d 327, 330 (7" Cir. 1995).
ap @ For further detail see order attached to the original minute order.
No notices required, advised in open court,
6
No notices required. umber et oes
v | Notices mailed by judge’s staff.
Notified counsel by telephone. nt Q6 2004
Docketing to mail notices 7)
Mail AO 450 form. eo
ai form. 1yn0d JOWWLSiG sn docks infil
vv Copy to judge/magistrate judge. be sta 4190 ws
courtroom a - NYE te ge mailed nbtice
KF depuiy’s eg ails Soh .
initials =
° Y Datefingelrebenvedtin
OT Bere hte asin er



Civil Conspiracy

In order to succeed on the merits of its claim for civil conspiracy, Alpha must
show “a combination of two or more persons [or entities] for the purpose of
accomplishing by concerted action either an unlawful purpose or a lawful purpose by
unlawful means.” McClure v. Owens Corning Fiberglass Corp., 188 I\Il.2d 102, 133
(1999). In Count Ill of its Third Amended Complaint (“Complaint”), Alpha alleged that
Miester and others “knowingly agreed to rig the bids on the SWCCCASE contract in
violation of Section 33E-3 of the Illinois Criminal Code and the federal and state
antitrust laws”. (Complaint {] 38). However in its Findings, Alpha argues that it has
shown a likelihood of success on the merits of its civil conspiracy claim because it
established that Miester and Wagner conspired to breach their fiduciary duties of loyalty
to Alpha. (Findings §] 33).

In order to establish a likelihood of success on the merits of its claim at trial,
Alpha must present evidence to support the claims in its Complaint. Alpha’s Complaint
does not state a claim for civil conspiracy resulting from concerted action on the part of
Miester and Wagner to breach their fiduciary duties to Alpha. The Complaint alleged a
concerted effort by Miester and Wagner to rig Southwest and Alpha’s bids in violation of
state and federal antitrust laws. At the hearing Alpha did not present any evidence
regarding its antitrust claims and therefore failed to establish a likelihood of success on
the merits of its civil conspiracy claim as stated in its Complaint.
Inadequate Remedy at Law and Irreparable Harm

Because Alpha has established a likelihood of success on the merits of its

breach of fiduciary duty claim, we now address whether Alpha has established an

al


ee

secure the SWCCCASE transportation contract.

There was also evidence that Miester participated in preparing bids for the CPS
and SWCCCASE transportation contracts on behalf of both Alpha and Southwest while
employed at Alpha, and that he used Alpha’s property to develop his new business.
Bruce testified that Miester asked her to calculate the billing revenue Alpha was
generating from the CPS, SWCCCASE and District 218 contracts, and Glass testified
that Miester asked her to copy all of Alpha’s payroll documents for him. We believe that
these actions, if proved at trial, would constitute a breach of Miester’s fiduciary duty.

In defense of this claim, Miester cites several cases. However, in two of those
cases the court found a breach of fiduciary duty. We believe those cases actually
support Alpha’s claim. See Smith-Shrader Co., inc. v. Smith, 136 Ill. App. 3d. 571, 577-
79 (1st Dist. 1985); Cross Woods Products, Inc. v. Sutter, 97 Ill. App. 3d 282, 284-85
(1st Dist. 1981) (finding that the employee breached his fiduciary duty to his former
employer). The other cases Miester relies on require that the employee terminate his
employment relationship prior to undertaking the referenced actions. See Ellis &
Marshall Accoc., inc. v. Marshall, 16 Ill. App. 3d 398, 402-03 (1st Dist. 1973);
Professional Service Corp. v. Johnson, 316 Il. App. 431, 433-35 (1st Dist. 1942) (it is
not improper for an employee to tell co-workers of his plans to form a rival company, so
long as he does not actually solicit their services before he terminates the employment
relationship). As we stated above, we find that Miester engaged in the referenced
conduct while employed at Alpha, in addition to after his “retirement” and therefore

likely breached his fiduciary duty to Alpha.

10


aan

Southwest's former premises sometime thereafter and we believe purchased
substantially all of Southwest's assets. Sunrise retained all of Southwest's employees
and equipment. In fact, Sunrise effectuated such a seamless transition that Miester did
not know when he stopped working for Southwest and began working for Sunrise."? For
a time after Sunrise began its operations, its business premises and buses still
displayed the Southwest name and emblem. Before this hearing, Sunrise obtained
valid transportation contracts to provide CPS and SWCCCASE with busing services
through the 2003-04 school year.
CONCLUSIONS OF LAW

At the hearing, Alpha alleged that Miester breached his fiduciary duty to the
company and participated in a civil conspiracy to harm it."* Alpha is now seeking a
preliminary injunction to enjoin Miester from (1) providing any services for the CPS and
SWCCCASE accounts on his own behalf or on behalf of any person or company; (2)

using any of plaintiff's driver lists, route sheets or billing information; (3) soliciting

"The court and plaintiff were also not immediately aware of this transition. Plaintiff
brought these developments to the Court’s attention at an October 3, 2003 status hearing. On
that date plaintiff also filed a motion for a temporary restraining order to enjoin the transfer of
Southwest's assets and requested leave to file a third amended complaint to include Sunrise
and its parent company Sunrise Transit, Inc.

Alpha limited its arguments at the hearing and in its post-hearing brief to the breach of
fiduciary duty and civil conspiracy claims and therefore our analysis is also limited to those
claims. Because we recommend that an injunction not be issued on those claims, we also find
that an injunction should not be issued as to any of Alpha’s remaining claims. Alpha’s federal
jurisdiction stems from its Antitrust and RICO claims. This Court has not seen or heard any
evidence to support those claims, calling into question whether this case belongs in federal
court.


school districts and overseeing Alpha’s bus routing.

By the end of 2002, Wagner, Miester and Hackel (collectively “Named
Defendants”) had agreed to start a new bus contracting company named Southwest,
and planned to locate it across the street from Alpha. The Named Defendants intended
Southwest to be a direct competitor of Alpha. Between December, 2002 and January,
2003, Wagner and Miester told their assistants at Alpha, Nancy Bruce (“Bruce”) and
Kristi Glass (“Glass”),* that they were going to leave Alpha to work for a new bus
contracting company, later identified as Southwest. In the first quarter of 2003 and
while Wagner and Miester were still employed at Alpha, the transportation contracts for
CPS, SWCCCASE and Districts 135 and 218 opened for competitive bidding.> Wagner
and Miester participated in preparing bids for the CPS, SWCCCASE and District 218
contracts on behalf of both Alpha and Southwest.® Each if these three transportation
contracts were eventually awarded to Southwest over Alpha, ending Alpha’s ten year
contractual relationship with CPS and SWCCCASE.

After Alpha lost the SWCCCASE transportation contract to Southwest on March
19, 2003, Wagner and Miester notified Alpha of their intent to retire. Miester gave
Wagner a resignation letter dated March 20, 2003 and effective June 1, 2003. After

eighteen years with Alpha, Miester and his wife Claudia, also an Alpha employee,

‘Both Bruce and Glass testified at the hearing. Bruce was Wagner's assistant and
Glass was an assistant to both Wagner and Miester.

‘The busing contracts open for competitive bidding were each set to commence with the
2003-04 school year.

5No evidence was presented at the hearing as to who prepared the bid proposals
submitted to District 135.


harm. Any harm to Alpha from Miester’s alleged actions has already occurred.

Finally, in order to establish that there is no adequate remedy at law, Alpha must
show that money damages are inadequate. Brown v. Kerr-McGee Chem. Corp., 767
F.2d 1234, 1240 (7th Cir. 1985). Wee find that Alpha’s alleged damages are
quantifiable and can be remedied monetarily. Benish Jr. estimated that Alpha’s gross
revenue for the 2003-04 school year declined by $2,000,000, as a result of losing the
CPS, SWCCCASE and District 218 business. He also testified that Alpha made
anywhere from a seven to seventeen percent profit margin on the transportation
contracts at issue. Using a seventeen percent profit margin, Benish Jr. estimated that
Alpha lost $340,000.00 in profit from the loss of those contracts. This is direct evidence
that Alpha’s alleged damages are readily quantifiable.

We also find that there was not sufficient evidence at the hearing to support
Alpha’s claim that a judgment for money damages would be worthless. While it does
not appear that Miester could satisfy a large monetary damage award, no evidence was
produced regarding Sunrise’s financial condition or the financial condition of its parent
company.

BALANCE OF HARMS AND PUBLIC POLICY

Because we find that Alpha cannot prove either an inadequate remedy at Jaw or

irreparable harm, we do not need to reach the next factors, harm to Miester or the

public interest.

14


£

motion, which we held on October 28-29, 2003' solely as to defendant Miester. For the
following reasons, we recommend that the District Court DENY the motion. In
rendering this decision, the Court has considered the testimony of the witnesses, the
documents admitted into evidence, the pre-hearing and post-hearing arguments and
briefs of the parties and the relevant case law. Pursuant to Fed. R. Civ. P. 52, we make
the following findings of fact and conclusions of law.
FINDINGS OF FACT

Alpha is a schoo! bus contractor located in Crestwood, {lfinois and is a wholly
owned subsidiary of Cook-lllinois. Alpha provides busing services for a number of
school districts in the Chicagoland area. Specifically, in the beginning of 2003, Alpha
provided busing services for the Chicago Public Schools (“CPS”), Southwest Cook
County Cooperative Association for Special Education (“SWCCCASE”) and School
Districts 135 and 218, among others.” At that time, Wagner was Alpha’s General
Manager in charge of the day-to-day operations of Alpha and one of its corporate
officers. Miester was Alpha’s Director of Operations, but was not a director or officer.
His job functions included hiring all of Alpha’s bus drivers, participating in the

preparation of Alpha’s transportation contract bid proposals’, corresponding with the

' We also heard approximately fifteen minutes of irrelevant testimony from a defense
witness on October 31, 2003.

2Alpha is only requesting injunctive relief as to the CPS and SWCCCASE contracts and
therefore the other contracts are not at issue.

3Miester denied ever preparing Aipha’s bids. However, based on the credible testimony
of Bruce and Benish Jr., we find that Miester did participate in the preparation of Alpha’s bids.


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ALPHA SCHOOL BUS COMPANY, INC., and )
COOK-ILLINOIS CORP.,

Plaintiffs,
vs.

MICHAEL W. WAGNER, BARBARA ANN
HACKEL, LEROY MIESTER, SOUTHWEST
TRANSIT, INC., CHICAGO BEAR BONES
LEASING, INC., and SOUTHWEST TRANSIT
LEASING, LLC, SUNRISE SOUTHWEST,
L.L.C., SUNRISE TRANSPORTATION, INC.

wwe we SS SS SS SES SES SES SS

Defendants.

DOCKETED

JAN 0 6 2004
Case No. 03 C 5009
Judge Joan B. Gottschall

Mag. Judge Michael Mason

REPORT AND RECOMMENDATION

Michael T. Mason, United States Magistrate Judge:

Plaintiff, Alpha School Bus Company, Inc., (“Alpha”), filed a complaint and

motion for preliminary injunction against defendants Michael Wagner (“Wagner’),

Barbara Hackel (“Hackel”), Southwest Transit Inc. (“Southwest”), Southwest Transit

Leasing LLC, Chicago Bear Bones Leasing, Inc., and Leroy Miester (‘Miester’), alleging

among other claims, violation of the Sherman Antitrust Act, 15 U.S.C. §1, violation of

the Racketeer Influenced and Corruption Organization Act (“RICO”), 18 U.S.C. §1961

et. seq., breach of fiduciary duty and civil conspiracy. Prior to the hearing on the

preliminary injunction, Alpha reached an agreement with all of the defendants except

Miester. The District Court referred this matter to us to conduct a hearing on the


inadequate remedy at law and irreparable harm. We are mindful that under the sliding
scale approach, having found a significant likelihood of success on the merits of its
breach of fiduciary duty claim, Alpha’s burden on the remaining two elements is
minimal. However, Alpha failed to meet this fow threshold because it could not
establish that money damages are not adequate or that it will suffer any irreparable
harm if the injunction is not granted.

!n determining whether plaintiff has shown irreparable harm if the injunction is
not granted, we keep in mind the purpose of a preliminary injunction; to preserve the
relative position of the parties until a permanent injunction can be issued or there is a
trial on the merits. Meridian Mutual Ins. Co. v. Meridian Ins. Group Inc., 128 F.3d 1111,
1119 (7th Cir. 1997). The purpose of a preliminary injunction is to maintain the status
quo, not to give the moving party affirmative relief equivalent to the ultimate relief
sought. Brown v. Kerr-McGee Chem. Corp., 767 F.2d 1234, 1240 (7th Cir. 1985).
Where competitive injury has already occurred, an injunction that restrains the
defendant from competing with the plaintiff during the pendency of the lawsuit does not
serve to preserve the status quo. Marchlett Laboratories, Inc. v. Techny Indust., Inc.,
665 F.2d 795, 796 (7th Cir. 1981). Moreover, “[dJelay in pursuing a preliminary
injunction may raise questions regarding the plaintiff's claim that he or she will face
irreparable harm if a preliminary injunction is not entered.” Ty, Inc. v. The Jones Group,
Inc., 237 F.3d 891, 903 (7th Cir. 2001).

It is undisputed that Alpha was aware of Southwest by March 19, 2003, when
Southwest secured the SWCCCASE contract. Around that time, Alpha also knew that

two of its top employees, Wagner and Miester, were retiring and that their names were

12


CONCLUSION

For the reasons stated above, we recommend that the District Court DENY
Alpha’s request for a preliminary injunction. Specific written objections to this report
and recommendation may be served and filed within 10 business days from the date
that this order is served. Fed. R. Civ. P. 72(a). Failure to file objections with the District
Court within the specified time will result in a waiver of the rights to appeal all findings,
factual and legal, made by this Court in the report and recommendation. Lorentzen v.

Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995).

ENTER:

MICHAEL T. MASON
United States Magistrate Judge

Dated: January 5, 2004

15