United States District Court, W.D. Washington, Seattle
TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on Plaintiff's
Emergency Motion for Temporary Restraining Order
(“TRO”) and Preliminary Injunction. Dkt. #5.
Plaintiff alleges that a group of its former employees
resigned en masse after planning for several months
to take trade secrets, documents and confidential information
that they are now utilizing to take business from it and
unfairly compete with it. Id. Rather than file an
opposition to the motion, Defendant U.S. Bank requests that
the Court set a briefing schedule for the instant motion, and
set a hearing on December 12, 2017, or, in the alternative,
on December 7th or 8th. Dkt. #9. None
of the individual Defendants have appeared in this action.
considered the Complaint, the Motion for Temporary
Restraining Order, the Declaration of Plaintiff's
Managing Director of Mortgage Analysis Paul Appleton, and the
remainder of the record, the Court hereby finds and ORDERS as
federal court may issue a TRO “with or without written
or oral notice to the adverse party” only if
“specific facts in the affidavit . . . 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 the moving party “certifies in
writing any efforts made to give notice and the reasons why
it should not be required.” Fed.R.Civ.P. 65(b).
“Motions for temporary restraining orders without
notice to and an opportunity to be heard by the adverse party
are disfavored and will rarely be granted.” Local Rules
W.D. Wash. LCR 65(b). Here, it appears that Plaintiff has
provided Defendants with notice of its Complaint and motion.
Dkt. #5 at 2-3. In addition, Defendant U.S. Bank has filed a
request for briefing schedule, and denies that its employees
are taking business from Plaintiff.
Ninth Circuit has described the standards for deciding
whether to grant a motion for a preliminary injunction:
To obtain a preliminary injunction, the moving party must
show either (1) a combination of probable success on the
merits and the possibility of irreparable injury, or (2) that
serious questions are raised and the balance of hardships
tips sharply in its favor. These formulations are not
different tests but represent two points on a sliding scale
in which the degree of irreparable harm increases as the
probability of success on the merits decreases. Under either
formulation, the moving party must demonstrate a significant
threat of irreparable injury, irrespective of the magnitude
of the injury.
Big Country Foods, Inc. v. Bd. of Educ. of Anchorage Sch.
Dist., 868 F.2d 1085, 1088 (9th Cir. 1989) (citations
omitted). The speculative risk of a possible injury is not
enough; the threatened harm must be imminent. Caribbean
Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674
(9th Cir. 1988); Fed. R. Civ. Proc. 65(b)(1)(A). The
standards for issuing a TRO are similar to those required for
a preliminary injunction. Lockheed Missile & Space
Co., Inc. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323
(N.D. Cal. 1995).
Despite Defendant U.S. Bank's conclusory assertions that
its new employees are not utilizing confidential information
to take business from Plaintiff, the Court finds that
Plaintiff has sufficiently demonstrated to the Court that it
is entitled to a TRO restraining Defendants, and anyone
acting in concert with them, from: (a) calling on,
soliciting, or doing business with any person with whom any
Defendant had contact with while still employed by Union
Bank; (b) calling on, soliciting, or doing business with any
individuals who had received financing pre-approval from
Union Bank or were in the “pipeline” with Union
Bank prior to November 6, 2017; and (c) continuing to
possess, use, or disseminate Union Bank's trade secrets,
including any documents belonging to Union Bank, containing
Union Bank's trade secrets, or containing confidential
information regarding Union Bank's customers. Further,
Defendants SHALL return all such documents and information to
Pursuant to Federal Rule of Civil Procedure 65(b)(1) a
temporary restraining order may issue without written or oral
notice to the adverse party or his attorney if immediate and
irreparable injury, loss or damage will result to the
applicant before the adverse party or his attorney can be
heard in opposition, and if the movant's attorney
certifies efforts made to give notice and reasons why it
should not be required. Plaintiff has given notice to
opposing counsel, and Defendant U.S. Bank acknowledges that
it has been served. Dkt. #9 at 5. Further, Plaintiff has
sufficiently demonstrated that if a TRO is not immediately
issued, it will suffer substantial and irreparable injury due
to the use of its confidential information to unfairly
compete for its business. Dkts. #5 and #6.
Under the circumstances of this case, it is appropriate to
issue a TRO without a hearing to maintain the status quo as
it existed prior to November 6, 2017.
Court finds that Plaintiff, in its pleadings and accompanying
Declaration, has sufficiently demonstrated a likelihood of
success on the merits to permit this TRO to issue.
Defendants are unlikely to suffer substantial harm if they
are immediately restrained from using Plaintiff's trade
secrets, documents and confidential information until a
hearing can be held, the Court finds that the balance of
equities in this matter favors Plaintiff and entitles it to
immediate injunctive relief to preserve the status quo
pending hearing on the motion for preliminary injunction.
Order, and its conditions as described in Paragraph 3,
supra, shall expire on the date set below for
hearing on a Motion for Preliminary Injunction, unless
extended for good cause.
matter of any bond shall be reserved until the hearing on a