United States District Court, D. Colorado
TEMPORARY RESTRAINING ORDER
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Bankers Life and
Casualty Company's Motion for Temporary Restraining
Order, with supporting documentation (collectively, the
“Motion”) (ECF No. 7), seeking an ex
parte restraining order against Defendants, all of whom
are Plaintiff's former employees or agents
(i.e., independent contractors). After being fully
advised, the Motion is GRANTED in part and DENIED in part as
stated herein, for the reasons stated herein.
following is gleaned from the Verified Complaint and Motion.
Plaintiff allegedly provides seniors with various insurance
and financial products, such as long-term care insurance,
life annuities, and Medicare Supplement Insurance. Plaintiff
uses both employees and agents (collectively,
“employees”) to provide its products to
customers/policyholders. Plaintiff's Complaint, and
request for temporary injunctive relief, are against seven
asserts Defendants Laycock, Hall, Jansen, Ascione,
Rennerfeldt, and Lester-Garcia (collectively, “Laycock
Defendants”) recently (between October 3, 2017 and
January 9, 2018) terminated their employment
relationship with Plaintiff to work for a competitor.
But, before they did so, the Laycock Defendants allegedly
copied and/or removed policyholder information which contains
confidential information and trade secrets belonging to
Plaintiff. In addition, after they terminated their
employment, Defendants Jansen and Ascione allegedly
represented that they were still agents for Plaintiff when
they were not. This is also the case as to Defendant Rex
Young. Although Defendant Young's employment relationship
with Plaintiff terminated in May 2013, he allegedly
recently represented he was still Plaintiff's
agent to one of Plaintiff's customers.
on Defendants' alleged conduct, Plaintiff asserts the
following claims for relief:
Breach of Contract - First, Second, Third, Fourth, Fifth, and
Sixth Claims for Relief against Defendants Laycock, Hall,
Jansen, Ascione, Rennerfeldt, and Lester-Garcia,
Misappropriation of Trade Secrets under the Defend Trade
Secrets Act of 2016 (“DTSA”) - Seventh Claim for
Relief against Laycock Defendants;
Misappropriation of Trade Secrets under the Colorado Uniform
Trade Secrets Act (“CUTSA”) - Eighth Claim for
Relief against Laycock Defendants;
Conversion - Ninth Claim for Relief against Defendants Hall
and Jansen; and
Violation of Colorado Consumer Protection Act
(“CCPA”) - Tenth Claim for Relief against
Defendants Jansen, Ascione, and Young.
Complaint asserts various forms of relief is warranted,
including the issuance of a temporary restraining order;
preliminary injunctive relief; permanent injunctive relief
(against Defendant Young only); the return of all information
taken/copied; the identification of all persons to whom such
information was shared; the submission of electronic devices
for forensic inspection; and the award of attorney's fees
(except as to Defendant Young).
to Fed.R.Civ.P. 65(b)(1), “the 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 be required.” In addition, Local Rule
65.1 also requires a certificate of counsel or an
unrepresented party which addresses providing notice, and the
provision of copies of filings, to opposing counsel and any
unrepresented adverse party. D.C.COLO.LCivR 65.1.
law also sets forth certain requirements which must be met
before injunctive relief may be had. Specifically, in order
to obtain relief, the plaintiff must establish:
“‘(1) a substantial likelihood of prevailing on
the merits; (2) irreparable harm unless the injunction is
issued; (3) that the threatened injury outweighs the harm
that the preliminary injunction may cause the opposing party;
and (4) that the injunction, if issued, will not adversely
affect the public interest.'” Diné
Citizens Against Ruining our Environment v. Jewell, 839
F.3d 1276, 1281 (10th Cir. 2016) (quoting Davis v.
Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002)); Watts
v. Karmichael Family, LLC, No.
07-cv-00638-MSK-MJW, 2007 WL 1059051, at *1 (D. Colo. Apr. 4,
2007) (unpublished) (motion for temporary restraining order
is examined under same standards applicable to requests for
preliminary injunction). The Tenth Circuit no longer applies
a “modified test” for determining temporary or
preliminary injunctive relief, finding it inconsistent with
the Supreme Court's decision in Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7 (2008).
Diné Citizens, 839 F.3d at 1282 (deciding
preliminary injunction). “Because a preliminary
injunction is an extraordinary remedy, the movant's right
to relief must be clear and unequivocal.”
Diné Citizens, 839 F.3d at 1281 (citation and
quotation marks omitted).
addition, as to the evidence which the courts consider on a
motion for injunctive relief, the Tenth Circuit has stated:
We [the Tenth Circuit] must be mindful…, as the
Supreme Court has cautioned, that “a preliminary
injunction is customarily granted on the basis of procedures
that are less formal and evidence that is less complete than
in a trial on the merits.” University of Texas v.
Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d
175 (1981). A hearing for preliminary injunction is generally
a restricted proceeding, often conducted under pressured time
constraints, on limited evidence and expedited briefing
schedules. The Federal Rules of Evidence do not apply to
preliminary injunction hearings.
Heideman v. South Salt Lake City, 348 F.3d 1182,
1188 (10th Cir. 2003).
Requirements of Rule 65(b)(1)(B) and Local Rule 65.1
stated, Plaintiff's Complaint is verified and its Motion
is supported by affidavits and other materials. In addition,
Plaintiff submitted a proposed order, and certified that
service, or attempted service, of the Complaint and Motion
has been made on Defendants. Thus, Plaintiff has shown the
requirements of Rule 65(b)(1)(B) and the Local Rule 65.1 have
been met. The issue ...