EMS USA, Inc. v. Integrity Services LLC et al

Filing 40

ORDER AND STIPULATED JUDGMENT FOR PERMANENT INJUNCTION granting 38 Motion for Judgment, by Judge Christine M. Arguello on 12/21/11.(jjpsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 11-cv-02832-CMA-BNB
EMS USA, INC.,
Plaintiff,
v.
INTEGRITY SPECIALISTS LLC, and
THOMAS R. RIPPER, an individual,
Defendants.

ORDER AND STIPULATED JUDGMENT FOR PERMANENT INJUNCTION

Upon the Joint Motion for Entry of Stipulated Judgment (Doc. # 38), filed by Plaintiff
EMS USA, Inc. (“EMS”) and Defendants Integrity Specialists LLC (“Integrity”) and Thomas R.
Ripper (“Ripper”) (collectively, “Defendants”), the Court, having considered same and the
pleadings filed in this case, the Court hereby GRANTS the motion and
FINDS AS FOLLOWS:
1.

EMS and Integrity are competitors in providing certain non-destructive testing

services to customers in the oil and gas industry. Integrity used to be a subcontractor to EMS,
starting in June 2011, pursuant to a certain Contractor Agreement (the “Contractor Agreement”).
EMS employed Mr. Ripper, as a non-destructive testing technician, beginning in approximately
June 2011. As a condition of his employment with EMS, Mr. Ripper signed a certain EMS
Confidentiality and Intellectual Property Rights Assignment Agreement (the “Confidentiality
Agreement”). On or about October 14, 2011, Ripper resigned to work for Integrity in the same
capacity in which he had previously been employed by EMS.

2.

On October 31, 2011, EMS filed the above-captioned lawsuit against Integrity

and Ripper, alleging that Integrity improperly solicited Ripper for hire, that Integrity and Ripper
improperly solicited other EMS employees for hire by Integrity, that Integrity and Ripper
improperly solicited one or more EMS customers, alone or in conspiracy with each another,
using EMS trade secrets and confidential information (as defined in their respective agreements
with EMS). EMS asserted claims that Integrity and Ripper breached their respective agreements
with EMS, tortiously interfered with EMS’s contractual relationships, misappropriated EMS
trade secrets in violation of the Colorado Uniform Trade Secrets Act, engaged in a civil
conspiracy, and that Mr. Ripper breached his duty of loyalty to EMS.
3.

On November 3, 2011, upon the joint motion of EMS and Integrity, the Court

entered a Stipulated Temporary Restraining Order and Order for Limited Expedited Discovery
(Doc. # 9). In addition, the Court entered a Stipulated Protective Order (Doc. # 17), and an
Amended Protective Order (Doc. # 28) (the “Protective Order”) (both upon the joint motions
of EMS and Integrity).
4.

EMS's Complaint (Doc. # 1) and Motion for Temporary Restraining Order (Doc.

# 2) sets forth the elements and facts in support of permanent injunctive relief to prevent claimed
irreparable harm to EMS that would result from disruption of its customer relationships and
employee relationships and misappropriation of its claimed trade secrets and misuse of its
claimed confidential information.
5.

In the interest of avoiding the expense and uncertainty of contesting EMS’s

claims – but without admitting the liability for same – Integrity and Ripper each stipulate to the
entry of this judgment for permanent injunctive relief.
IT IS THEREFORE ORDERED that JUDGMENT shall ENTER as follows:

2

INJUNCTION
1.

For an 18-month period, which began November 3, 2011 (the “Restricted

Period”), Defendant Integrity (and its owners, agents, employees, and successors, if any):
A.

Shall not solicit any EMS employees in violation of the Contractor Agreement;
and shall notify EMS if it hires an EMS employee;

B.

Shall not directly or indirectly solicit the business of or contact EMS customers
about whom Integrity or Ripper learned, respectively, as subcontractor and
employee of EMS. To provide clarity regarding such restrictions, such customers
include the list of nine customers provided by EMS’s counsel to Integrity's
counsel on or about November 3, 2011 (the “Customers”); provided, however,
that the Restricted Period shall be only through and including November 2, 2012,
with respect to the Western Slope Customer referenced in the Complaint;

C.

Shall adhere to its contractual confidentiality promises to EMS in its Contractor
Agreement not to otherwise disclose or use any EMS confidential information or
trade secrets, and abide by the other executory provisions in its Contractor
Agreement; and

2.

For the Restricted Period, Defendant Ripper:

A.

Shall not directly or indirectly solicit the business of or contact the Customers
referenced above in paragraph 1.B. The shortened restricted period shall also
apply to Ripper with respect to the Western Slope Customer; and

B.

Shall adhere to his contractual confidentiality promises to EMS in his
Confidentiality Agreement not to otherwise disclose or use any EMS confidential
information or trade secrets, and abide by the other executory provisions in his
Confidentiality Agreement; and

3

3.

The Court shall award reasonable attorney fees to the prevailing party in any

action arising out of a claimed violation of this Injunction; and
4.

The Clerk of the Court shall enter final judgment in accordance with this Order

and Stipulated Judgment for Permanent Injunction, with each party to bear his or its own costs
and fees incurred to date.
SO ORDERED this 21st day of December, 2011.
BY THE COURT:

___________________________________
CHRISTINE M. ARGUELLO
United States District Court Judge
And stipulated to by the parties this 16th day of December, 2011.
/s/ Patrick M. Groom
Patrick M. Groom
Witwer, Oldenburg, Barry & Johnson, LLP
822 7th St., Ste. 760
Greeley, CO 80631
Phone: [phone]
Email: [e-mail]

/s/ Sven Collins
Sven Collins
Patton Boggs LLP
1801 California Street, Suite 4900
Denver, CO 80202
Phone: [phone]
Fax: [phone]
E-mail: [e-mail]

COUNSEL FOR DEFENDANT

COUNSEL FOR PLAINTIFF

4