United States District Court, D. Colorado
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR
TEMPORARY RESTRAINING ORDER
William J. Martinez United States District Judge.
action, Plaintiff Complete Fire Protection, Inc.
("CFP"), sues its former employee, Defendant
Raymond Kolman ("Kolman"), for misappropriation of
trade secrets in violation of the federal Defend Trade
Secrets Act, 18 U.S.C. § 1836, and the Colorado Uniform
Trade Secrets Act, Colo. Rev. Stat. §§ 7-74-101
etseq., breach of contract, unjust enrichment,
conversion, and civil theft. (ECF No. 1 ¶¶ 50-84.)
Currently before the Court is CFP's Emergency Motion for
Temporary Restraining Order (the "Motion") (ECF No.
4) and Memorandum in Support (the "Memorandum")
(ECF No. 5). For the reasons discussed below, the Motion is
granted in part and denied in part.
Rule 65 Requirements for a Temporary Restraining
obtain a temporary restraining order ("TRO") before
the party to be restrained has an opportunity to appear and
respond, a plaintiff must present
(A) specific facts in an affidavit or a verified complaint
clearly show[ing] 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['s] certification] in
writing [regarding] any efforts made to give notice and the
reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1). As for requirement "A,"
CFP has provided a verified complaint that sets forth in
detail the immediate and irreparable injury that would result
if Kolman's actions are not enjoined. (ECF No. 1
requirement "B," CFP's attorney certifies that
on April 18, 2019, around 12:23 p.m., he e-mailed a copy of
the Complaint, Motion, Memorandum, and Motion for a
Preliminary Injunction to Kolman at his last known personal
e-mail address and asked him if he opposed the motions. (ECF
No. 3 at 2.) Approximately ten minutes later, counsel filed
the Motion. Counsel had not yet received a response from
Kolman at the time of filing. (Id.) The Motion
suggests that notice should not be required because of the
imminence of irreparable harm absent an injunction.
(Id.; ECF No. 5 at 19-20.) The Court finds that CFP
has made a sufficient showing that a temporary restraining
order should issue without notice.
CFP Satisfies the Four Part Test for Obtaining a TRO
party seeking a temporary restraining order or preliminary
injunction must show (1) a substantial likelihood that the
movant eventually will prevail on the merits; (2) that the
movant will suffer irreparable injury unless the injunction
issues; (3) that the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause
the opposing party; and (4) that the injunction, if issued,
would not be adverse to the public interest." NRC
Broad. Inc. v. Cool Radio, LLC, 2009 WL 2965279, at *1
(D. Colo. Sept. 14, 2009). The purpose of a temporary
restraining order is to "preserv[e] the status quo and
prevent irreparable harm just so long as is necessary to
hold a [preliminary injunction] hearing, and no longer."
Granny Goose Foods, Inc. v. Bhd. of Teamsters &Auto
Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S.
admittedly limited record before it, the Court finds that CFP
has shown a substantial likelihood of success on the merits.
With regard to its misappropriation claims under state and
federal law, courts have held that client and contact lists,
pricing data, and other client information, which are the
types of information at issue here, can constitute a trade
secret. Executive Consulting Group, LLC v. Baggot,
2018 WL 1942762 at *7 (D. Colo. Apr. 25, 2018); Arctic
Energy Servs., LLC v. Neal, 2018 WL 1010939, at *2 (D.
Colo. Feb. 22, 2018). (See ECF No. 5 at 14-15.)
addition, CFP has presented evidence, in the form of
plausible allegations in its verified complaint, describing
the reasonable steps it undertook to prevent the secrets from
becoming available to others. (ECF No. 5 at 15-16.)
See 18 U.S.C. § I839(3)(A); Colo. Rev. Stat.
§ 7-74-102(4). Finally, the facts suggest that Kolman
acquired the trade secrets by improper means, i.e.,
e-mailing to his personal (rather than work) e-mail address
screenshots of secured company data shortly before his
departure from the company and commencing employment at one
of CFP's competitors. (ECF No. 5 at 16.) See 18
U.S.C. § 1839(5); Colo. Rev. Stat. § 7-74-102(2).
CFP's breach of contract claim, the contract appears to
be enforceable, and the facts as presented also suggest that
Kolman breached his contract with CFP. The contract between
CFP and Kolman submitted as an attachment to the Complaint
appears to be enforceable under Colorado law. While Colorado
generally prohibits covenants not to compete, the
circumstances of the case appear to meet two exceptions to
that general rule: covenants governing trade secrets and
non-compete contracts for executive or management personnel.
Colo. Rev. Stat. § 8-2-113(2)(b) & (d). (ECF No. 5
at 10-13.) As discussed above, the type of information
allegedly captured by Kolman is frequently considered trade
secret information. In addition, and while not as clear as
the Court would prefer, the factual allegations ...