Kelly Services, Inc. v. Calder

Filing 5

ORDER granting 2 Motion for TRO. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KELLY SERVICES, INC.,
a Delaware Corporation,
Plaintiff,
v.

Case No. 14-10836
Hon. Lawrence P. Zatkoff

GLENN A. CALDER, an
Individual,
Defendant.
_____________________________________/
OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on March 3, 2014.
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on Plaintiff’s Motion for Temporary Restraining Order
and Preliminary Injunction [dkt 2].

Defendant filed a response to Plaintiff’s Motion for

Temporary Restraining Order [dkt 3] and Plaintiff filed a reply [dkt 4]. The Court finds that the
facts and legal arguments are adequately presented in the parties’ briefs such that the decision
process would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich.
L.R. 7.1(f)(2), it is hereby ORDERED that the Motion be resolved on the briefs submitted,
without oral argument. For the following reasons, Plaintiff’s request for Temporary Restraining
Order is GRANTED.

II. BACKGROUND
Plaintiff Kelly Services, Inc. (“Plaintiff”) is a staffing services company that specializes
in providing a wide range of employment staffing and consulting services.

Plaintiff is a

Delaware corporation with its principal place of business in Michigan. Plaintiff employed
Defendant Glenn A. Calder (“Defendant”) as a Senior Engineering Recruiter at a branch in
Burlington, Massachusetts.

Upon commencing his employment with Plaintiff, Defendant

executed several Employment Agreements, which prohibited him—for a period of one year after
leaving Defendant’s employment—from:
1) Competing with Plaintiff in the same market;
2) Using Plaintiff’s confidential information; and
3) Soliciting Plaintiff’s customers, potential customers and employees.
Defendant was employed with Plaintiff from March 14, 2011, through his voluntary
resignation on August 22, 2013. During his time with Plaintiff, Defendant was responsible for
developing and expanding customer relationships, developing new accounts, and developing
account management relationships. Plaintiff asserts the market area in which Defendant worked
or had responsibilities included Suffolk, Middlesex, Worcester, Norfolk and Essex Counties
within the state of Massachusetts. Defendant alleges his responsibilities only covered activity in
Middlesex and Worcester counties.
Upon his voluntary resignation, Plaintiff asserts that Defendant informed Plaintiff he
would be working in sales, a job that would not conflict with the recruiting position Defendant
held with Plaintiff. Plaintiff alleges, however, that Defendant is instead working as a recruiter
for Michael Page—a direct competitor of Plaintiff—placing candidates in engineering lines just
as Defendant did for Plaintiff. Further, Defendant continues to work in the Greater Boston Area,

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the same market area that Defendant once had responsibility for while employed with Plaintiff.
Finally, Plaintiff asserts Defendant recently solicited one of Plaintiff’s customers in the Boston
market to source positions for them.
Plaintiff asserts all of Defendant’s actions are in direct conflict with the Employment
Agreements Defendant signed. Further, Plaintiff alleges it stands to lose—as a direct result of
Defendant’s actions—employees, clients and customers, confidential, proprietary and trade
secret information, the goodwill and referral business of its clients and customers, and revenues
in an amount that cannot be readily ascertained. Plaintiff asserts is will suffer irreparable harm
without the issuing of a temporary restraining order (“TRO”) by this Court.
Plaintiff originally filed its complaint and request for temporary restraining order in
Oakland County Circuit Court on February 7, 2014. Defendant removed the matter to this Court
on February 24, 2014.
III. LEGAL STANDARD
The factors to be weighed before issuing a TRO are the same as those considered for
issuing a preliminary injunction. See, e.g., Workman v. Bredesen, 486 F.3d 896, 904–05 (6th Cir.
2007). In determining whether or not to grant a preliminary injunction, a district court considers
four factors: (1) the plaintiff’s likelihood of success on the merits; (2) whether the plaintiff could
suffer irreparable harm without the injunction; (3) whether granting the injunction will cause
substantial harm to others; and (4) the impact of the injunction on the public interest.
Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). See also Hamilton’s
Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007).
A reviewing court generally will balance these factors, and no single factor will
necessarily be determinative of whether or not to grant the injunction. Connection Distributing

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Co., 154 F.3d at 288. Courts, however, may grant a preliminary injunction even where the
plaintiff fails to show a strong or substantial probability of success on the merits, but where he at
least shows serious questions going to the merits and irreparable harm which decidedly
outweighs any potential harm to the defendant if the injunction is issued. Jones v. Caruso, 569
F.3d 258, 277 (6th Cir. 2009) (quoting Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d
100, 104 (6th Cir. 1982)) (emphasis added).
IV. ANALYSIS
Defendant does not object to the entering of a TRO by this Court. Indeed, Defendant
does not dispute the existence of the Employment Agreements he signed while employed with
Plaintiff, or the validity of the terms contained within those agreements. Instead, Defendant
provides a proposed TRO that allows him to continue working in his current position, so long as
he:
1) Does not solicit candidates located within Middlesex and/or Worcester counties;
2) Does not contact any actual or potential candidate or client with whom he had
exposure within his last 12 months with Plaintiff;
3) Does not recruit any of Plaintiff’s employees; and
4) Does not use or disclose any of Plaintiff’s confidential, proprietary, or trade secret
information.
Defendant asserts these restrictions “balance the potential hardships” faced by both parties. In
his five page response to Plaintiff’s motion, Defendant does not address the merit of Plaintiff’s
claims, whether Plaintiff would suffer irreparable harm without the issuing of a TRO, or the
impact issuing a TRO would have on the public interest.

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Considering the evidence provided by Plaintiff—combined with Defendant’s failure to
provide any evidence or arguments to the contrary—the Court finds that Plaintiff’s claim has a
high likelihood of success on the merits and that Plaintiff would suffer irreparable harm without
the issuing of a TRO.
Further, the Court finds Defendant’s attempts to “balance” the hardships of each party
disingenuous: Defendant’s alleged compromise completely ignores the time constraints
contained within the Employment Agreements signed by both parties. Likewise, Defendant fails
to provide any evidence that Plaintiff’s geographic restrictions are excessive, while Plaintiff
provides evidence that Defendant did indeed solicit or perform business within all five counties
contained in the Employment Agreements signed by both parties.
V. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff’s request for a
Temporary Restraining Order is GRANTED.
IT IS FURTHER ORDERED that Plaintiff shall submit to the Court a form of Temporary
Restraining Order consistent with this Opinion.
IT IS SO ORDERED.

Date: March 3, 2014

s/Lawrence P. Zatkoff
HON. LAWRENCE P. ZATKOFF
U.S. DISTRICT COURT

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