United States District Court, W.D. North Carolina, Asheville Division
UNITED SUBCONTRACTORS, INC. D/B/A USI SOUTHERN FOAM, Plaintiff,
MICHAEL C. SIMONS, Defendant.
TEMPORARY RESTRAINING ORDER
COGBURN JR. UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on plaintiff's Motion
for Temporary Restraining Order (“TRO”) and
Preliminary Injunction (#2). The court has expedited
consideration of this request given the time-sensitive nature
of plaintiff's Motion, the recent nature of the alleged
violation, and the gravity of the harm outlined in the
for issuance of a TRO are governed by Fed.R.Civ.P. 65(b)(1),
which provides as follows:
court may issue a temporary restraining order without written
or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can
be heard in opposition; and
(B) the movant's attorney certifies in writing any
efforts made to give notice and the reasons why it should not
Id. The Court notes that “the issuance of an
ex parte temporary restraining order is an emergency
procedure and is appropriate only when the applicant is in
need of immediate relief.” Wright and Miller, 11A Fed.
Prac. & Proc. Civ. § 2951 (3d ed.).
evaluating a request for a TRO, the court considers the same
factors applied for a preliminary injunction. Pettis v.
Law Office of Hutchens, Senter, Kellam & Pettit, No.
3:13-CV-00147-FDW, 2014 WL 526105, at *1 (W.D. N.C. Feb. 7,
2014) (citing Hoechst Diafoil Co. v. Nan Ya Plastics
Corp., 174 F.3d 411 (4th Cir. 1999)). In assessing such
factors, plaintiff must demonstrate that: (1) it is likely to
succeed on the merits; (2) it will likely suffer irreparable
harm absent an injunction; (3) the balance of hardships
weighs in its favor; and (4) the injunction is in the public
interest. League of Women Voters of N. Carolina v. N.
Carolina, 769 F.3d 224, 236 (4th Cir. 2014), cert.
denied, 135 S.Ct. 1735, 191 L.Ed.2d 702 (2015)
(citing Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008)).
Court has closely read the Complaint (#1), the exhibits
attached thereto (including the Restrictive Covenant
Agreement, hereinafter “the agreement”) and the
arguments stated in the instant motion. The Court finds that
plaintiff has, at least initially, made the required showing.
the first consideration, the Court finds ample evidence that
supports plaintiff's contention that defendant has
violated the agreement. Specifically, the agreement provided
that defendant would keep plaintiff's confidential
information confidential if he left the company, as well as
refrain from soliciting customers and employees on behalf of
a competitor. The Complaint and the exhibits annexed to the
motion provide the Court with reason to believe that
defendant has professed an intent to use confidential
knowledge of USI's customer base to gain business for his
new employer, and has attempted to solicit other USI
employees. Plaintiff would likely succeed at trial as it has
proffered evidence that, if accepted by a jury, would support
a claim that defendant breached the agreement. The first
consideration is thus satisfied.
the second consideration, the Court finds that plaintiff will
likely suffer irreparable harm absent an injunction inasmuch
as its confidential customer information and/or trade secrets
are likely to be utilized by a direct competitor. Once that
type of material is exposed, especially to a competitor, a
competitor could have an unfair advantage in the marketplace
which could well exceed the new employee's tenure, as it
would then be privy to valuable information about
plaintiff's customer base it could use to an advantage.
Indeed, defendant conceded in the agreement that a violation
of that contract would induce immediate and irreparable harm
to plaintiff. The second factor is satisfied.
the third factor, the balance of hardships weighs in favor of
issuing the TRO. While this Court is sensitive to the need
for employees to continue to work even after they leave an
employer, and issuance of a TRO may well result in defendant
losing his present job, it appears that he not only took the
job within the period of exclusion, but brought confidential
information with him, which may well constitute a taking or
misappropriation under both federal and state law. Though
defendant may stand to lose income from his new employer
during the brief TRO, his continued violation of the
agreement stands to harm plaintiff permanently ...