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Bankers Life and Casualty Co. v. Laycock

United States District Court, D. Colorado

February 26, 2018




         This 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.

         I. BACKGROUND

         The 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 former employees.

         Plaintiff 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[1] 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[2] represented he was still Plaintiff's agent to one of Plaintiff's customers.

         Based on Defendants' alleged conduct, Plaintiff asserts the following claims for relief:

         (1) Breach of Contract - First, Second, Third, Fourth, Fifth, and Sixth Claims for Relief against Defendants Laycock, Hall, Jansen, Ascione, Rennerfeldt, and Lester-Garcia, respectively;

         (2) Misappropriation of Trade Secrets under the Defend Trade Secrets Act of 2016 (“DTSA”) - Seventh Claim for Relief against Laycock Defendants;

         (3) Misappropriation of Trade Secrets under the Colorado Uniform Trade Secrets Act (“CUTSA”) - Eighth Claim for Relief against Laycock Defendants;

         (4) Conversion - Ninth Claim for Relief against Defendants Hall and Jansen; and

         (5) Violation of Colorado Consumer Protection Act (“CCPA”) - Tenth Claim for Relief against Defendants Jansen, Ascione, and Young.

         Plaintiff's 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).


         Pursuant 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.

         Case 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”[3] 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).[4]

         In 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).

         III. ANALYSIS

         A. Requirements of Rule 65(b)(1)(B) and Local Rule 65.1

         As 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 ...

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