EVERETT J. PRESCOTT, INC. Plaintiff
ROBERT W. LEAHY Defendant
Plaintiff EVERETT J PRESCOTT INC represented by DANIEL J. MURPHY BERNSTEIN SHUR SAWYER & NELSON LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL A. HODGINS BERNSTEIN, SHUR LEAD ATTORNEY ATTORNEY TO BE NOTICED
Defendant ROBERT W LEAHY
ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER
JOHN A. WOODCOCK, JR. CHIEF UNITED STATES DISTRICT JUDGE
On May 13, 2014, Everett J. Prescott, Inc. (EJP) filed a complaint and motion for temporary restraining order (TRO) against Robert W. Leahy. EJP alleges that Mr. Leahy recently concluded his employment with Prescott and is now breaching an Employee Non-Disclosure and Non-Competition Agreement by obtaining employment with a competitor, HD Supply, Inc., and soliciting EJP customers using confidential EJP information. Compl. (ECF No. 1); Mot. for TRO (ECF No. 7). Mr. Leahy has not yet been served. Rather than wait for Mr. Leahy to be served and give him an opportunity to be heard, EJP demands judicial action today on its motion for TRO.
The Court DENIES EJP’s Motion for TRO. Under Federal Rule of Civil Procedure 65(b)(1)(A), a court may issue a TRO without written or oral notice to the adverse party only if
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.
Fed. R. Civ. P. 65(b)(1)(A). In addition, Rule 65 requires that the movant’s attorney:
certif[y] in writing any efforts made to give notice and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1)(B). In addition, the Court evaluates a motion for TRO using the same familiar four-factor analysis used to evaluate a motion for preliminary injunction:
(1) the likelihood of success on the merits;
(2) the potential for irreparable harm [to the movant] if the injunction is denied;
(3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the ...