Hand & Nail Harmony, Inc. v. Sims

Filing 8

ORDER denying 4 motion for TRO. Signed on 6/4/14 by Chief District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
HAND & NAIL HARMONY, INC.
Plaintiff,
v.
RICHARD LEE SIMS,
Defendant.

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No. 4:14-CV-455-DGK

ORDER DENYING MOTION FOR A TEMPORARY RESTRAINING ORDER
This case involves the unauthorized downloading of confidential data from a computer.
Plaintiff Hand & Nail Harmony, Incorporated (“Harmony”) contends that Defendant Richard
Lee Sims (“Sims”) surreptitiously accessed and downloaded files from the computer of
Harmony’s Vice President and Sims’ estranged wife Gari-Dawn Tingler (“Tingler”). Harmony
filed suit alleging that Sims’ actions violated the Computer Fraud and Abuse Act (“CFAA”), 18
U.S.C. § 1030, and the Missouri Computer Tampering Act (“MCTA”), Mo. Rev. Stat. §§
537.525, 569.095-569.099.
Now before the Court is Harmony’s motion for an ex parte temporary restraining order
pursuant to Federal Rule of Civil Procedure 65(b) (Doc. 4). Harmony contends that an ex parte
temporary restraining order (“TRO”) is warranted because Sims has already revealed
confidential information recovered from the computer to a third party, and he has threatened to
continue revealing similar information to others. Attached to the motion are two affidavits: one
from Harmony’s counsel in which he avers that he contacted Sims’ attorney a week before filing
the TRO, and another from Tingler in which she avers that Sims told her he revealed confidential
information and he would continue to do so.

After careful consideration of the filings,

Harmony’s motion for an ex parte temporary restraining order is DENIED WITHOUT
PREJUDICE.
An ex parte restraining order is an extraordinary remedy which is only warranted in
narrow circumstances. Zidon v. Pickrell, 338 F. Supp. 2d 1093, 1094-95 (D.N.D. 2004) (“It is
well-established under federal law that a temporary restraining order is an emergency remedy
which should only be issued in exceptional circumstances.”). To demonstrate entitlement to this
emergency remedy, a movant must present:
[S]pecific facts in an affidavit or a verified complaint [which] 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
[A writing by the movant’s attorney that certifies] any efforts made to give notice
and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1)(A)-(B) (emphasis added).
Plaintiff has not carried this heavy burden. First, Tingler’s affidavit does not satisfy the
stringent requirements of Rule 65(b)(1)(A). Rather than clearly showing an immediate risk of
injury, the affidavit from Tingler only states a possibility that injury may occur. Although she
avers that Sims revealed the information to a third party and threatened to continue doing so,
Tingler fails to provide the Court with enough information for it to conclude that immediate
injury will result.

For example, she does not specify who Sims allegedly revealed the

information to, or who he plans to reveal to in the future. Without more specific information, the
Court cannot reasonably conclude that immediate injury will result to Harmony. Moreover, it is
unclear whether the disclosure of the information would even lead to an irreparable injury, given
the possibility that Harmony may be able to recover damages from Sims or any knowing
recipient of the information. See Mo. Rev. Stat. §§ 537.525, 569.055, 569.099. Finally, it is
unclear whether this alleged harm would occur before Sims is given a chance to respond to the

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motion. On the contrary, considering Harmony’s counsel’s prior discussions with Sims’ divorce
attorney, it appears he could also notify him of the TRO prior to Sims disclosing any further
information.
With respect to the second prong of Rule 65(b)(1), Harmony’s counsel has not certified
why notice should not be required in these circumstances.

According to his affidavit,

approximately one week ago he notified Sims’ divorce attorney of the complaint and that he may
file a TRO. Given this prior contact, it is obvious that he could now notify Sims’ attorney of the
actual filing of the TRO. Without proof that notice is impracticable or impossible, Plaintiff has
not satisfied the requirements for an ex parte temporary restraining order. Because Plaintiff has
failed to demonstrate its right to this extraordinary remedy, Plaintiff’s request for an ex parte
temporary restraining order is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.

Date:

June 4, 2014

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/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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