ROYCE C. LAMBERTH, District Judge.
Plaintiff Document Technologies, LLC ("DTI") has filed an application with this Court for a Temporary Restraining Order ("TRO") against defendant David Hess. ECF No. 7. Mr. Hess opposes the TRO application. ECF No. 10. For the reasons set forth below, the Court will deny DTI's request for a TRO.
DTI is a company that provides on-site services to law firms. These services include procurement of personnel, procurement of equipment, technology solutions, scanning/printing/copying, mailing/shipping/faxing, supply management, facilities management, etc. Mr. Hess began working for DTI in June of 2015 as a Site Manager and was promoted to Senior Operations Manager in October of 2017. His promotion made him second-in-command for DTI's Mid-Atlantic Region, which includes operations in the D.C., Baltimore, and Northern Virginia areas ("DMV area"). His responsibilities included servicing and growing client accounts, fostering relationships with potential new clients, managing approximately 115 DTI employees, training DTI employees, and assisting James Ferguson (DTI's Regional Director of Operations for the Mid-Atlantic Region) with all aspects of regional operations. All of the accounts that Mr. Hess oversaw were law firms or other entities in the legal industry in the DMV area. During his employment with DTI, he had access to DTI's confidential and proprietary information.
On April 25, 2018, Mr. Hess signed an Employment, Confidential Information, Invention Assignment, and Arbitration Agreement ("Agreement"). This Agreement included a non-compete clause, which states:
The Agreement also contained a non-solicitation clause, which states:
The Agreement also contained a confidential information clause, which states:
Mr. Hess claims that he expressed concern to Mr. Ferguson about suddenly being asked to sign the Agreement three years into his employment with DTI. Mr. Ferguson told Mr. Hess that he would have to sign the Agreement if he wanted to continue working at DTI. Mr. Hess claims that Mr. Ferguson assured him that DTI would not actually enforce the Agreement against him, at which point Mr. Hess agreed to sign the document.
On September 16, 2019, Mr. Hess submitted his letter of resignation (effective September 27, 2019) to Mr. Ferguson. He indicated that he would be taking a new job at Forrest Solutions, which is a competitor of DTI. Mr. Hess told Mr. Ferguson that Forrest Solutions has a focus outside the legal community and said that he would be taking over the southeast region down to Florida. The parties dispute whether Mr. Hess misled or intended to mislead Mr. Ferguson about the nature of his new job during this conversation.
In his new position at Forrest Solutions, Mr. Hess has worked with Ogletree, Deakins, Nash, Smoak & Stewart, P.C.'s Washington, D.C. office ("Ogletree"). DTI claims that it has previously made efforts to perform staffing for copy room services as well as front desk services for Ogletree, but it does not appear that Ogletree was ever DTI's customer.
On October 29, 2019 DTI filed a Complaint against Mr. Hess. ECF No. 1. On November 26, 2019, DTI filed its TRO application.
Injunctive relief is an "extraordinary remedy." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). The movant bears the burden of demonstrating that: (1) it has a substantial likelihood of succeeding on the merits; (2) it will suffer irreparable harm if the injunction is not granted; (3) other interested parties will not suffer substantial harm if the injunction is granted; and (4) the public interest would be furthered by the injunction. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). The Court considers the same factors in deciding whether to issue a TRO as it does when deciding whether to issue a preliminary injunction. Baker DC, LLC v. National Labor Relations Board, 102 F.Supp.3d 194, 198-99 (D.D.C. 2015).
Upon consideration of the four factors listed above, the Court finds that DTI has not met its heavy burden to show that a TRO is necessary. The Court will therefore deny the TRO request. DTI has indicated that if its TRO application is denied, it will "promptly file a separate motion to request leave of Court to pursue limited, expedited discovery which would be used in support of Plaintiff's expected Motion for Preliminary Injunction." ECF No. 9 at 5. Specifically, DTI plans to ask this Court for leave "to issue a subpoena duces tecum to Forrest Solutions for documents relating to Mr. Hess' employment with them, whether he has entered into a noncompetition agreement with them, and the extent to which he has engaged in conduct while working for Forrest Solutions which violated his continuing contractual obligations to DTI." ECF No. 14 at 9. DTI also plans to request "leave to depose Defendant Hess within seven (7) calendar days after it receives documents in response to the subpoena duces tecum to Forrest Solutions." Id. If DTI decides to pursue that course of action, the Court will thoroughly consider DTI's motion as well as any opposition thereto.
The first factor to consider is whether the movant has a substantial likelihood of success on the merits. Although DTI very well could succeed on the merits, it has failed to prove that such success is substantially likely. The Court firmly disagrees with Mr. Hess's assertion that "DTI has no chance of succeeding on the merits," (ECF No. 10 at 9) but DTI's ultimate success does hinge in part on the validity of the Agreement. The Agreement is governed by Georgia law, meaning that the parties will be making arguments regarding both Georgia contract law and the Restrictive Covenant Act (GA. CODE ANN. §§ 13-8-50) as well as any other statutes that may apply. The Court cannot declare that DTI has a substantial likelihood of success on the merits without first providing the parties an opportunity to brief those legal issues affecting the enforceability of the Agreement. Additionally, Mr. Hess's opposition to the TRO application raises potentially troubling circumstances surrounding Mr. Hess's consent to the Agreement. The Court cannot speculate as to the validity of the agreement without a full understanding of the facts that led him to sign the Agreement and without providing the parties an opportunity to explain why those circumstances are or are not relevant to the Agreement's enforceability. Essentially, although DTI has certainly raised a facially valid claim against Mr. Hess, its ultimate success remains an open question. Furthermore, even if this factor did weigh in DTI's favor, as explained below, the second factor would still lead the Court to deny the TRO application.
DTI has not met its heavy burden under the second factor to show that it will suffer imminent and irreparable harm absent a TRO. Issuance of a TRO may not be based on a mere "possibility of irreparable harm." Winter, 555 U.S. at 22. Rather, it "requires a clear showing" of irreparable harm entitling the movant to this "extraordinary remedy." Id. Although there is a chance that Mr. Hess's employment with Forrest Solutions could lead to some harm, DTI has not yet suffered irreparable damage, nor has it alleged with the requisite specificity what such damage would look like if it were to occur in the near future.
DTI has alleged six different types of harm that it believes warrant a TRO:
ECF No. 14 at 5-6. After analyzing each of the six harms, however, the Court finds insufficient grounds to issue a TRO.
Issue No. 1 asserts that Mr. Hess could harm DTI by working for its direct competitor in the DMV area. Although theoretically this could be true, DTI has failed to state with any specificity what that harm looks like. It has not alleged any precise facts about what Mr. Hess has done to take business away from DTI. Although working for a direct competitor may be in violation of the Agreement (which will be determined during the merits stage of the litigation), a violation of the Agreement on its own is not sufficiently harmful to warrant the issuance of a TRO.
Issue No. 2 discusses accounts that are coming up for rebid in the near future and with which DTI is concerned that Mr. Hess may interfere. Mr. Hess, however, has stated that he does not even know what accounts DTI is referring to, and DTI has not disclosed those names. Even if DTI were to disclose those names, DTI would need to establish that Mr. Hess is currently trying to foster a relationship with those customers on Forrest Solutions' behalf or is otherwise acting in a manner that harms DTI's chances of securing a rebid. Issue No. 2 is simply too vague to constitute irreparable harm worthy of a TRO.
Issue No. 3 raises concerns that Mr. Hess had access to DTI's proprietary and confidential information. DTI, however, has failed to establish that Mr. Hess has used or is planning to use that information to benefit Forrest Solutions or to harm DTI. DTI cited Robert Half Int'l Inc. v. Billingham in arguing that this Court should grant its TRO application, 315 F.Supp.3d 419, 432-34 (D.D.C. 2018). In Billingham, the plaintiff established that the defendant had actually disclosed confidential information, which constitutes irreparable harm "because such information, once disclosed, loses its confidential nature." Id. at 433 (quoting Hospitality Staffing Sols., LLC v. Reyes, 736 F.Supp.2d 192, 200 (D.D.C. 2010). In contrast, DTI has made no such showing of actual disclosure in this case. The mere fact that Mr. Hess knows the information may make DTI uneasy or apprehensive, but uneasiness and apprehension are not the types of concrete harm with which TROs are concerned.
Issue No. 4 asks for a TRO based on the "blatant, willful nature" of Mr. Hess's wrongful conduct. This assertion is exceedingly vague, but the Court takes it to mean that a TRO is necessary because Mr. Hess intentionally violated the Agreement. If this interpretation is correct, DTI is asking the Court to issue a TRO simply because Mr. Hess allegedly violated the Agreement. The alleged violation of the Agreement is undoubtedly upsetting and concerning to DTI, but it is a far cry from irreparable harm necessitating a TRO.
Issue No. 5 explains that DTI believes a TRO is necessary because monetary damages could not be readily quantified and would not be an adequate remedy. This assertion, however, does not constitute a harm in and of itself; rather, it presupposes the existence of concrete harm. Because DTI has failed to prove that it would be irreparably harmed by any specific conduct of Mr. Hess, monetary damages would be an adequate remedy if DTI ultimately succeeds on the merits. DTI would undoubtedly prefer to preempt these theoretical harms through a TRO, but that does not change the fact that DTI has not shown how irreparable injury would result absent that TRO.
Issue No. 6 deals specifically with Mr. Hess's work with Ogletree. Based on Mr. Hess's agreement not to have contact with Ogletree during the pendency of this litigation and the Court's Minute Order of November 27, 2019, Issue No. 6 is clearly moot. Mr. Hess cannot pose any "significant risks to the integrity of the litigation process" if he has no further contact with Ogletree. Therefore, Mr. Hess's past involvement with Ogletree is insufficient to warrant a TRO.
The second factor is of vital importance to the TRO analysis. Even if all three additional TRO factors indicate that a TRO is warranted, failure to show specific, concrete, irreparable harm is still "grounds for refusing to issue a preliminary injunction." England, 454 F.3d at 297. Therefore, even if the other three factors weighed in DTI's favor, the Court would still refuse to issue a TRO in this case.
A TRO would injure Mr. Hess, as it would effectively prevent him from continuing with his job at Forrest Solutions. Of course, if his actions leading up to this litigation truly violated a valid and enforceable employment contract, then such injury would be irrelevant. If, however, there is some legal or factual reason why Mr. Hess is not in breach of the Agreement, issuing a TRO would be a significant burden. Therefore, in this case, the analysis of the first factor is directly tied to the analysis of this third factor.
DTI also raises the argument that the Court should issue a TRO because Mr. Hess consented to it by signing the Agreement. Not only does this argument presume that the Agreement is enforceable, but it ignores the fact that DTI has failed to allege any irreparable injury under the second factor. Although Mr. Hess may have acknowledged that DTI would be entitled to injunctive relief if he violated the Agreement, such acknowledgement does not meet the legal standard for this Court to issue a TRO. DTI even concedes that a defendant's consent to the issuance of equitable relief is merely one issue to be considered. Billingham, 315 F. Supp. 3d at 433. In light of DTI's inability to show irreparable harm under the second factor, Mr. Hess's supposed consent is not a sufficient reason to grant the TRO application. Furthermore, even if the third factor did weigh in DTI's favor, the second factor alone would still lead the Court to deny the TRO application.
If Mr. Hess did violate a binding employment contract, then issuing a TRO would further the public interest by ensuring that people are bound by their agreements. It would also send a message that employment contracts are enforceable. As explained in the analysis of the first factor, however, it is not entirely clear what happened in this case. Not only would DTI need more facts to prove all of its allegations against Mr. Hess, but there are legal issues regarding the enforceability of the Agreement that the Court has not yet had the opportunity to consider fully. Therefore, in this case, the analysis of the first factor is directly tied to the analysis of this fourth factor. Although a TRO that protects a party to a contract can in some circumstances further the public interest, that is not necessarily what would be happening here. Furthermore, even if this factor did clearly weigh in DTI's favor, the second factor would still lead the Court to deny the TRO application.
Based on the foregoing, the Court will
A separate Order accompanies this Memorandum Opinion.
