The opinion of the court was delivered by: Lucy H. Koh United States District Judge
For the Northern District of California United States District Court
ORDER DENYING EX PARTE MOTION FOR TRO WITHOUT PREJUDICE
On May 20, 2011, Plaintiff Richmond Technologies, Inc., doing business as ePayware,*fn1 filed the instant action against Defendants Aumtech Business Solutions ("Aumtech America"), Aumtech i-Solutions Pvt. Ltd. ("Aumtech India"), Damien Joseph Polito, Jennifer Polito, Shankar Bose, and Ila Bose. Shortly thereafter, on May 23, 2011, Plaintiff filed an ex parte motion for a 23 temporary restraining order ("TRO"). There is no indication that Defendants have been served 24 with the summons and complaint or given notice of Plaintiff's motion for a TRO. Having 25 considered the arguments and declarations provided by Plaintiff, the Court finds that Plaintiff has not satisfied the requirements of Federal Rule 65(b) for issuance of a TRO without notice to the 2 adverse party. Accordingly, the Court DENIES Plaintiff's ex parte motion for a TRO without 3 prejudice. After Plaintiff serves Defendants with the summons, complaint, and all other filings in 4 this action, and files proof of service with the Court, Plaintiff may renew its motion for a TRO or 5 seek an expedited hearing on a motion for preliminary injunction Plaintiff ePayware is a company that provides enterprise resource planning ("ERP") software for financial service companies who provide credit card terminals to merchants. Compl. ¶
1. In 2007, ePayware hired Defendant Aumtech India to develop software and conduct 10 maintenance of its ERP modules. Compl. ¶ 23; Decl. of Sandeep Menon in Supp. of Pl's Mot. for 12 entered into a Confidentiality and Non-Disclosure Agreement that included a non-compete clause, 13 as well as restrictions on interference with ePayware's customers and solicitation of its employees.
In its Complaint, Plaintiff ePayware alleges that, in 2010, Defendant Aumtech India "hatched a plan" with former ePayware employee Jennifer Polito and her husband Joseph Damien Plaintiff claims, among other things, that this venture violates the Confidentiality and Non- Disclosure Agreement because it offers the same services provided by ePayware and directly 20 competes with ePayware. Compl. ¶ 4, 7, 40. Plaintiff claims, further, that Aumtech America has 21 been actively soliciting ePayware's clients and marketing its competing services at industry trade 22 shows, in violation of the Confidentiality and Non-Disclosure Agreement. Compl. ¶¶ 7-8, 32-33. 23
After learning of these alleged breaches, ePayware terminated its software development and 24 maintenance agreement with Aumtech India. Menon Decl. ¶ 7. ePayware then demanded that Aumtech India release the software source code to ePayware so that ePayware could transition its 26 software support and development to another vendor. Compl. ¶ 36. ePayware claims that it has 27 paid for the software development and maintenance provided by Aumtech India and that it needs 28 the source code in order to fulfill its obligations to its customers. Compl. ¶ 37; Menon Decl. ¶ 11. TRO ("Menon Decl.") ¶¶ 4-5 & Ex. A. On Sept ember 15, 2009, ePayware and Aumtech India also Menon Decl. Ex. B. ¶¶ 4-6. 15 Polito to create a venture called Aumtech Business Solutions ("Aumtech America"). Compl. ¶ 4.
According to ePayware, Aumtech India has refused to release the source code unless ePayware 2 first provides a payment of $20,000. Compl. ¶ 36; Menon Decl. ¶ 9. ePayware now seeks a 3 temporary restraining order that would (1) compel Defendant Aumtech India and its principals to 4 release the source code to ePayware, and (2) enjoin Defendants from competing with ePayware in 5 violation of the Confidentiality and Non-Disclosure Agreement.
Because Plaintiff seeks issuance of a TRO without notice to the
adverse parties, Plaintiff
must satisfy both the general standard for temporary restraining
orders and the requirements for ex 9 parte orders set forth in Federal
Rule of Civil Procedure 65(b). The standard for issuing a TRO is 10
identical to the standard for issuing a preliminary injunction. Brown
Jordan Int'l, Inc. v. Mind's
Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D. Haw. 2002);
Lockheed Missile & Space Co.,
Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995).
A plaintiff seeking a 13 preliminary injunction must make a four-fold
showing: (1) that he is likely to succeed on the 14 merits; (2) that
he is likely to suffer irreparable harm in the absence of preliminary
relief; (3) that 15 the balance of equities tips in his favor; and (4)
that an injunction is in the public interest. Winter v. 16
Natural Resources Defense Council, Inc., 129 S.Ct. 365, 374 (2008);
Amer. Trucking Assocs., Inc.
In addition, a plaintiff seeking issuance of a TRO without notice to
the defendant must
satisfy two further requirements: (1) "specific facts in an
affidavit or a verified complaint [must] 20 clearly show that
immediate and irreparable injury, loss, or damage will result to the
movant before 21 the adverse party can be heard in opposition," and
(2) the applicant's attorney must certify in 22 writing the reasons
why notice should not be required. Fed. R. Civ. Pro. 65(b)(1)
(emphasis 23 added). The Ninth Circuit has cautioned that there are
very few circumstances justifying the 24 issuance of an ex parte TRO.
Reno Air Racing Assoc., Inc. v. McCord, 452 F.3d 1126, 1131 (9th 25
Cir. 2006). Such circumstances include "a very narrow band of cases in
which ex parte orders are 26 proper because notice to the defendant
would render fruitless the further prosecution of the action." 27
Id. (quoting Amer. Can Co. v. Mansukhani, 742 F.2d 314, 322 (7th Cir. 1984)).
irreparable injury if Aumtech India withholds the source code and continues to violate the non-4 compete agreement until this action is resolved. Plaintiff states that without the source code, it will 5 be unable to fulfill its obligations to its customers and thus could permanently lose both its 6 customers ...