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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-2796

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KISANO TRADE & INVEST LIMITED; TRASTECO LIMITED; VADIM SHULMAN

v.

DEV LEMSTER; STEEL EQUIPMENT CORP; AKIVA SAPIR

AKIVA SAPIR,

Appellant

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Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 2-11-cv-0852)

District Judge: Honorable Arthur J. Schwab

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Argued November 1, 2012

Before: SLOVITER, AMBRO, and BARRY, Circuit Judges

(Opinion filed: November 27, 2012)

Larry K. Elliott, Esquire (Argued)

David F. Russey, Esquire

Fridrikh V. Shrayber, Esquire

Curt Vazquez, Esquire

Cohen & Grigsby

625 Liberty Avenue

Pittsburgh, PA 15222-3152

Counsel for Appellant
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Bruce S. Marks, Esquire (Argued)

Thomas C. Sullivan, Esquire

Marks & Sokolov LLC

1835 Market Street

28th Floor

Philadelphia, PA 19103-0000

Counsel for Appellee

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OPINION

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AMBRO, Circuit Judge

Appellant Akiva Sapir appeals the District Court’s order granting Appellee Vadim 

Shulman’s motion for a preliminary injunction and enjoining Sapir from transferring 

funds he holds in two Swiss bank accounts and selling or encumbering an apartment he 

owns in Monaco. Because we cannot conduct a meaningful review, we vacate and 

remand. 

I.

As we write for the parties, we set forth only those facts necessary to our opinion. 

In an amended complaint filed in May of 2012, Shulman alleged that Sapir defrauded 

him of at least $6.5 million during a series of transactions between the two men, 

particularly a sale of steel equipment in 2001. In June of 2012, Shulman filed a Motion 

for Expedited Relief seeking to enjoin Sapir from transferring funds from the

aforementioned bank accounts and selling the apartment in order to prevent him from 
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dissipating assets prior to judgment. Shulman and Sapir each submitted affidavits before 

the District Court asserting opposing versions of the 2001 steel equipment sale and their 

relationship. Regarding the 2001 transaction, Shulman contends that Sapir misled him—

with fraudulent documents—about the purchase price and financing of the equipment in 

order to obtain and keep the money Shulman paid in excess of the real purchase price and 

necessary financing. Sapir asserts that Shulman was aware of the purchase price and that 

he (Sapir) did not obtain money without Shulman’s knowledge. Sapir also raised a 

number of legal challenges to Shulman’s claims, including Shulman’s standing to bring 

several claims. 

The District Court held a hearing on June 21, 2012. Neither party sought to 

present additional evidence or live testimony. That day the Court issued a three-and-ahalf page order concluding that the elements meriting a preliminary injunction had been 

met, and enjoined Sapir as to the two accounts and the Monaco apartment. Sapir timely 

filed this appeal.

II.

The District Court had jurisdiction over this case pursuant to 28 U.S.C §§ 1331 

and 1367. We have appellate jurisdiction to review an interlocutory injunction pursuant 

to 28 U.S.C. § 1292(a)(1). We generally review a district court’s decision to grant or 

deny a preliminary injunction for abuse of discretion, but examine the findings of fact for 

clear error and evaluate the court’s conclusions of law under a plenary standard. New 

Jersey Retail Merchs. Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 385 (3d Cir. 2012). 
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Among other arguments, Sapir contends that the District Court erred by issuing 

the injunction without stating its factual findings and legal conclusions as required by 

Rule 52(a) of the Federal Rules of Civil Procedure. Shulman responds that Sapir waived 

this argument by failing to raise it in the District Court and that the record provides 

adequate support for the Court’s Order. 

III.

Rule 52(a)(1) provides that ―[i]n an action tried on the facts without a jury or with 

an advisory jury, the court must find the facts specially and state its conclusions of law 

separately.‖ Fed. R. Civ. P. 52(a)(1). A court ―granting or refusing an interlocutory 

injunction‖ must ―state the findings and conclusions that support its action.‖ Id. 52(a)(2). 

In addition, when a court issues a preliminary injunction, Rule 65(d)(1)(A) requires it to 

―state the reasons why.‖

Compliance with Rule 52(a) is ―of the highest importance to a proper review of 

the action of a court in granting or refusing a preliminary injunction,‖ and is ―obviously 

necessary to the intelligent and orderly presentation and proper disposition of an appeal.‖ 

Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 316–17 (1940). For us to 

review a district court’s findings, that court must do more than declare its conclusion; it

must state the findings necessary to reach that conclusion. O’Neill v. United States, 411 

F.2d 139, 146 (3d Cir. 1969). We may review the materials in the record to ascertain the 

basis of a district court’s order, but we are not bound to do so. Educational Testing 

Servs. v. Katzman, 793 F.2d 533, 537 (3d Cir. 1986); 9C Charles Alan Wright & Arthur 

R. Miller, Federal Practice and Procedure § 2577, at 304 (3d ed. 2008).
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Sapir does not contend that he raised this issue before the District Court. It is true 

that we have held that Rule 52(a) ―does not differ from any of the other trial court errors 

which are waived when no objection is raised in the district court.‖ Danny Kresky 

Enters. Corp. v. Magid, 716 F.2d 206, 215 (3d Cir. 1983). That case involved the appeal 

of a District Court’s decision to continue a permanent injunction previously entered

where ―the defect complained of could have been readily corrected had the matter been 

called to the district court’s attention.‖ Id. at 214. More importantly, unlike in Danny 

Kresky, the record here fails to provide ―a sufficient basis for us to fulfill our review 

function,‖ as it allows for competing inferences we are not permitted to make in the first 

instance. Id. at 215. 

Thus, ―[w]hile a party may waive the compliance issue, we nonetheless must 

examine the findings to ascertain if they are adequate to explain sufficiently the basis for 

the injunction so that we can perform our review function.‖ Katzman, 793 F.2d at 537 

(citing Professional Plan Exam’rs of N.J., Inc. v. Lefante, 750 F.2d 282, 289 (3d Cir. 

1984)). ―[I]f the record does not provide a sufficient basis to ascertain the legal and 

factual grounds for issuing the injunction or if the findings are inadequate to explain the 

basis for that ruling or to permit meaningful review[,] the appellate court must vacate the 

injunction and remand to the district court for further findings.‖ Lefante, 750 F.2d at 289 

(quotation omitted). 

The District Court’s Order in this case is inadequate for us to engage in a 

meaningful review, and the record does not provide a clear explanation supporting the 

Court’s order. Despite the contested facts and legal issues raised in Shulman’s motion, 
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the District Court’s Order granting the injunction contains no specific findings of facts or 

conclusions of law. It concludes without explanation that Shulman is likely to prevail on 

the merits, likely to suffer irreparable harm, and is entitled to an injunction protecting a

possible future damage award. We need more than this in order to exercise our review 

function. Thus, we vacate and remand for further proceedings.