WOLF, D.J.
After hearings on January 30 and 31, 2019, for the reasons explained in a February 5, 2019 Memorandum and Order (Docket No. 48), the court found that it had the authority before compelling arbitration to decide plaintiffs' Optum, Inc. and Optum Services, Inc.'s ("Optum") motion for a temporary restraining order ("TRO"). If granted, the TRO would prohibit Optum's former employee, defendant David Smith, from working for up to 28 days,
On January 30, 2019, after hearing argument on the issue, the court stated that it had the authority to decide the motion for a TRO before compelling arbitration. Therefore, it then heard argument on the merits of Optum's request for a TRO.
Following the parties' arguments, the court stated that it was considering hearing testimony because it was uncertain how it would decide the motion based on the conflicting affidavits.
However, despite the fact that no order had been entered, on January 30, 2019, Smith filed a notice of appeal of the court's statement that it had the authority to decide the motion for a TRO before compelling arbitration. Later that day. Smith filed a motion to stay pending appeal, arguing that the notice of appeal divested this court of jurisdiction. The parties agreed, however, that it would be appropriate for the court to hear additional testimony on January 31, 2019, as the Chief Operating Officer of ABC, John Stoddard, was on his way to Boston to testify then.
On February 1, 2019, Optum filed its opposition to the motion to stay. It argued that a stay was not required and that it would be irreparably harmed during the pendency of Smith's appeal if the court exercised its discretion to grant a stay.
As indicated earlier, on February 5, 2019, the court issued a Memorandum further explaining why it had the authority to decide the motion for a TRO before compelling arbitration.
On February 7, 2019, Optum filed in this court a Motion for an Injunction Pending Appeal and/or an Indicative Ruling on the Pending Motion for a Temporary Restraining Order. On February 8, 2019, Smith filed his opposition to that motion. At 6:21 p.m. on February 8, 2019, Optum filed a motion for leave to file a reply to Smith's opposition, attaching its Reply to the motion.
Optum in part requests an "indicative ruling" pursuant to Federal Rule of Civil Procedure 62.1(a) and its counterpart. Federal Rule of Appellate Procedure 12.1(a). Rule 62.1(a)(3) states that:
The 2009 Advisory Committee Notes to Rule 62.1 state that it applies to "any motion that the district court cannot grant because of a pending appeal." As the term "may" communicates, the court has the discretion, but not the obligation, to provide an indicative ruling when the Rule applies.
As explained earlier, this court allowed Smith's motion for a stay because it is unclear whether the First Circuit would find that his appeal divested it of jurisdiction to decide Optum's motion for a TRO, and it is most appropriate to permit the First Circuit to decide
Optum's original motion for a TRO raises a substantial issue.
This court has familiarity with the record that the First Circuit would require time to acquire. It also has insights provided by the opportunity to observe the witnesses which it would employ, if it had jurisdiction, in deciding issues of credibility concerning the related issues of whether the stay should be extended or Optum's motion for a TRO should be granted. However, this court has not yet decided whether it would grant the TRO Optum requests.
If the stay is lifted soon, the court will hear oral argument and strive to decide Optum's motion for a TRO promptly. If much time passes before the case is returned to this court for a decision concerning the TRO, it may be necessary to hear additional testimony. As of January 31, 2019, Smith had only been working for ABC for about two weeks. Circumstances may change materially over time because the longer he works for ABC, the greater the possibility that he will, as Optum alleges, improperly use or disclose what Optum claims is its confidential information.
Optum also argues that, pursuant to Federal Rule of Civil Procedure 62(d), this court now has the authority to enter an injunction prohibiting Smith from working for ABC, and from disclosing or using Optum's confidential information pending appeal. Rule 62(d) applies to appeals of an "interlocutory order or final judgment that grants, continues, modifies, refuses, dissolves, or refuses to dissolve or modify an injunction ...." The court has not decided or issued an order concerning Optum's motion for a TRO. Therefore, unless the court otherwise has jurisdiction. Rule 62(d) may not permit it to issue the injunctive relief pending appeal that Optum requests.
In its Reply, Optum cites several cases for the proposition that a denial of a motion to compel arbitration is a form of an injunction for the purpose of Rule 62(d). This argument is, in effect, a request that the court reconsider its decision that it may not have jurisdiction to decide the merits of Optum's TRO pending appeal, and to allow the First Circuit to decide whether the stay should be lifted to permit this court to decide Optum's motion for a TRO.
Moreover, Rule 62(d) states that a district court "may" issue an injunction pending appeal. As explained earlier, the court has not yet decided whether the injunctive relief Optum requests is justified. Therefore, even if Rule 62(d) is applicable, the court would not exercise its discretion to issue an injunction because it has not had the opportunity to hear oral argument.
Finally, Optum contends that the court has the "inherent authority" to issue an injunction pending appeal. For the reasons explained in the February 5, 2019 Stay Decision (Docket No. 49) at 6-9, this contention is not correct.
In view of the foregoing, it is hereby ORDERED that:
1. Optum's unopposed motion to file a reply (Docket No. 66) is ALLOWED.
2. Optum's Motion for an Injunction Pending Appeal (Docket No. 57) is ALLOWED with regard to the request for an indicative ruling and otherwise DENIED.