DermSource, Inc. v. CityMedRx, LLC et al

Filing 11

ORDER TO SHOW CAUSE WITH TEMPORARY RESTRAINING ORDER: Accordingly (Please See Order For Further Details), based on the foregoing, IT IS HEREBY ORDERED that the branch of the Plaintiff's ex parte injunction motion seeking a TRO (ECF No. #4 ) is GRANTED, as stated herein; IT IS FURTHER ORDERED that (Please See Order For Further Details). So Ordered by Judge Joanna Seybert on 1/18/2023. (GO)

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 1 of 23 PageID #: 1658
FILED 
CLERK 

1/18/2023 4:57 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
DERMSOURCE, INC.,
Plaintiff,

ORDER TO SHOW CAUSE
WITH TEMPORARY
RESTRAINING ORDER
23-CV-281(JS)(JMW)

-againstCITYMEDRX, LLC; ROBERT ABAEV; and
DAVID ABAEV,

Defendants.
-----------------------------------X
APPEARANCES
For Plaintiff:
Emanuel Kataev, Esq.
Milman Labuda Law Group PLLP
3000 Marcus Avenue, Suite 3W8
Lake Success, New York 11530
For Defendants:

No appearances.

SEYBERT, District Judge:
Before the Court is an injunction motion 1 by DermSource,
Inc. (“Plaintiff” or “DermSource”) for, inter alia, the ex parte
issuance of a temporary restraining order (“TRO”) and an order of
surrender due to the alleged misappropriation of trade secrets and
confidential and proprietary information by Defendants CityMedRX,
LLC

(“CityMed”),

Robert

Abaev

(“Robert”),

(“David”; collectively, “Defendants”).
Support Memo, ECF No. 5.)

and

David

Abaev

(TRO Motion, ECF No. 4;

Based on Plaintiff’s Complaint (ECF No.

Plaintiff’s injunction motion seeks both a temporary restraining
order (“TRO”) and a preliminary injunction. This Order address
only that portion of the injunction motion seeking the TRO;
therefor, herein, the injunction motion is referred to as the TRO
Motion.
1

1

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 2 of 23 PageID #: 1659

1), TRO Motion, Support Memo, the Supporting Declaration of Yuriy
Davydov (ECF No. 7) and accompanying exhibits (ECF Nos. 7-1 through
7-16), as well as the Supporting Declaration of Emanuel Kataev,
Plaintiff’s Counsel, the Court finds that Plaintiff has met its
burden of establishing its entitlement to a TRO as described
herein; however, at this juncture, Plaintiff has not established
entitlement to an order of surrender.

Accordingly, Plaintiff’s

TRO Motion (ECF No. 4) is GRANTED IN PART and DENIED IN PART.
BACKGROUND
Plaintiff, a New York corporation, is a Group Purchasing
Organization (“GPO”) representing more than eight hundred (800)
independent retail pharmacies.
¶ 10.)
that

Defendant CityMed is a New York limited liability company

is

“a

relationship
2017.

(Compl. ¶¶ 19, 20; Davydov Decl.,

pharmaceutical
with

wholesaler

DermSource

(Compl. ¶¶ 8, 16.)

since

which

has

DermSource’s

had

a

vendor

inception”

in

As a GPO, DermSource obtains independent

retail pharmacies as its customers and utilizes wholesalers to
fulfill the needs of those independent retail pharmacies.

(Compl.

¶¶ 21, 31.)
Robert and David are New York residents, as well as
principals and/or members of CityMed.
a pharmaceutical wholesaler.

(Compl. ¶ 9.)

(Compl. ¶ 21.)

Citymed is

“In or about January

2021, . . . DermSource and CityMed entered into an exclusive
agreement under which DermSource utilized CityMed to fulfill all
2

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 3 of 23 PageID #: 1660

orders

sourced

Agreement”).

by

DermSource”

(Compl. ¶ 34.)

(hereafter,

the

“January

2021

By its terms, the January 2021

Agreement expired on December 31, 2022.

(Compl. ¶ 40.)

DermSource alleges that the January 2021 Agreement “was
premised on a business concept of consolidating DermSource’s and
CityMed’s collective services in order to present a first-tomarket duo that, together, as a pharmaceutical wholesaler and
dermatology-specialized-GPO,
single enterprise.”

would

be

(Compl. ¶ 37.)

marketed

and

sold

as

a

In that regard, DermSource

and CityMed marketed themselves to a pharmaceutical conglomerate
for approximately $24 million for their combined business, but
that transaction was not consummated. (Compl. ¶ 38.) Nonetheless,
DermSource contends “the foregoing anticipated sale was achieved
in large part due to the parties’ agreement to work exclusively
with each other . . . .”

(Compl. ¶ 39.)

Thus, as the January

2021 Agreement neared expiration, but hoping to find another buyer,
in December 2022, the parties met to negotiate a new agreement
that, DermSource alleges, was undertaken “with the understanding
that . . . the parties would continue to work together, in good
faith, as they [had] for several years.”
However,

negotiations

did

not

proceed

(Compl. ¶¶ 40-41.)
as

DermSource

had

anticipated; rather, CityMed sought significant changes to their
prior, January 2021 Agreement.

(Compl. ¶¶ 42-49; Davydov Decl. ¶

50.)
3

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As negotiations were falling apart between DermSource
and CityMed, on December 20, 2022, DermSource’s key employee (see
--Davydov Decl. ¶¶ 20-21, 26, 53), Bahrum Siddiqui (hereafter, the
“Key Employee”), who was its Chief Operating Officer, gave his
two-week notice of resignation.
¶ 52.)

(Compl. ¶¶ 24-25; Davydov Decl.

As part of his resignation notice, the Key Employee stated

his intention to cooperate with DermSource regarding the transfer
of his responsibilities.
representation,

the

Key

(Davydov Decl. ¶ 53.)
Employee

did

not

provide

Despite this
significant

information about DermSource customers sourced by and through his
employment with DermSource by failing to enter that information
into DermSource’s customer relationship management (“CRM”) sales
system, which documents all communication and documentation with
its customers.

(Davydov Decl. ¶¶ 54, 58.)

For example, the Key

Employee did not enter the following confidential information:
each customer’s personal cell phone number, unlisted telephone
number, email address, and other information not readily available
to the public such as purchasing habits and customer preferences.
(Davydov Decl. ¶¶ 55-57.)

DermSouce alleges:

DermSource’s business model, customer lists,
contact
information
and
preferences,
information related to [its] revenues and
profit
margins,
the
related
information
Plaintiff’s [K]ey [E]mployee obtained during
his
employment
with
DermSource
are
confidential and proprietary, and took great
costs and efforts to create, including years
of developing relationships with customers.
4

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(Compl. ¶ 58.)

DermSource contends it took reasonable measures to

keep its confidential information secret, including: “restricting
access of this information only to [the Key Employee] and requiring
him to enter this information into a secure CRM program protected
by firewalls and related resources;” ensuring its office is secure,
which is under video surveillance and has a keyboard office entry;
providing

the

Key

Employee

with

his

own,

private

office

and

password-protected computer; and maintaining an office computer
network that is firewall-protected.

(Id. ¶¶ 72-73.)

Moreover, despite his initial commitment to cooperate
with DermSource, “on December 28, 2022, . . . [the Key Employee]
stated that he felt ‘uncomfortable’ providing DermSource with its
customer information,” abruptly leaving; thereafter, he ceased
communicating with DermSource.
59-60.)

(Compl. ¶ ¶55; Davydov Decl. ¶¶

Additionally, CityMed stopped filling orders before the

expiration of the January 2021 Agreement.

(Id.; Davydov Decl. ¶¶

60-61.)
DermSource learned that the Key Employee went to work
for CityMed.

(Compl. ¶¶ 56-57.)

It further alleges that, after

the Key Employee’s departure, “DermSource discovered that its
camera system, which records audio and video, had been hacked into
by [the] [K]ey [E]mployee at the behest of the Defendants to
illegally

record

and

intercept

5

DermSource’s

internal

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 6 of 23 PageID #: 1663

communications.” (Compl. ¶ 62; Davydov Decl. ¶¶ 77-80.) Plaintiff
contends that the Key Employee illegally accessed DermSource’s
camera system: while still employed at DermSource; even after his
resignation, to wit, until January 2, 2021; and for the benefit of
CityMed and detriment of DermSource.
Compl. ¶¶ 76-78.)

(Davydov Decl. ¶¶ 81-82;

It alleges that “[a] significant number of

Plaintiff’s customers have been solicited directly by Defendants
using Plaintiff’s trade secrets and confidential information.”
(Compl. ¶ 84.)
Based on the foregoing allegations, on January 16, 2023,
DermSource filed its Complaint asserting federal claims under: (1)
the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836 (“DTSA”);
(2) the Wiretap Act, 18 U.S.C. § 2520; (3) the Computer Fraud &
Abuse Act (“CFAA”), 18 U.S.C. § 1030; it also brings New York State
law claims for (4) misappropriation of trade secrets; (5) unfair
competition; (6) tortious interference with contractual relations,
business relations, and prospective economic advantage; (7) unjust
enrichment; (8) breach of contract; (9) conversion; (10) civil
conspiracy; and (11) breach of implied covenant of good faith and
fair

dealing.

The

instant

ex

Plaintiff’s Complaint.

6

parte

TRO

Motion

accompanied

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 7 of 23 PageID #: 1664

TEMPORARY RESTRAINING ORDER
I.

Applicable Law
In this Circuit the standard for issuing a TRO and a

preliminary injunction are the same, although a TRO is often
granted ex parte and has, at most, a limited 14-day lifespan.
Omnistone Corp. v. Cuomo, 485 F. Supp. 3d 365, 367 (E.D.N.Y. 2020);
see also Pan Am. World Airways, Inc. v. Flight Engineers’ Int’l
Ass’n, PAA Chapter, AFL-CIO, 306 F.2d 840, 842 (2d Cir. 1962) (“The
purpose of a temporary restraining order is to preserve an existing
situation in status quo until the court has an opportunity to pass
upon the merits of the demand for a preliminary injunction.”).

“A

plaintiff seeking a preliminary injunction must establish [1] that
he is likely to succeed on the merits, [2] that he is likely to
suffer irreparable harm in the absence of preliminary relief, [3]
that the balance of equities tips in his favor, and [4] that an
injunction is in the public interest.”

Winter v. Nat’l Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008); Louis Vuitton Malletier v.
Dooney & Bourke, Inc., 454 F.3d 108, 114 (2d Cir. 2006).
II.

Application
Plaintiff seeks a TRO enjoining Defendants from: (1)

“using in any manner whatsoever DermSource’s trade secrets and
confidential and propriety information”; (2) having any contact
with any of DermSource’s employees; (3) contacting or serving any
DermSource’s

customers

or

clients;
7

and

(4)

operating

their

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 8 of 23 PageID #: 1665

business until such time that they return DermSource’s trade
secrets and confidential information.

(See TRO Motion at 3-4.)

Having reviewed the Complaint, TRO Motion, Support Memo,
Yuriy Davydov’s Supporting Declaration and accompanying exhibits,
as well as Attorney Kataev’s Supporting Declaration, the Court
finds:
1)

At this stage, venue is proper in this District and
Plaintiff has established a sufficient basis for the
Court to exercise personal jurisdiction over Defendants;

2)

Plaintiff has shown a likelihood of success on its claims
against Defendants on its federal claims; 2

3)

Plaintiff will suffer immediate irreparable harm unless
Defendants are enjoined.

See N. Atl. Instruments, Inc.

v. Haber, 188 F.3d 38, 49 (2d Cir. 1999) (holding “loss
of trade secrets cannot be measured in money damages”
because “[a] trade secret once lost is, of course, lost

The Court focuses upon Plaintiff’s federal claims herein;
because it finds that Plaintiff is entitled to injunctive relief
on those claims, the Court need not reach Plaintiff’s remaining
state law claims, as “[t]he scope of appropriate injunctive relief
would not vary based on the merits of [those] remaining . . .
claims.” Am. Auto. Ass’n, Inc. v. Limage, No. 15-CV-7386, 2016 WL
4508337, at *2 (E.D.N.Y. Aug. 26, 2016) (citing Pretty Girl, Inc.
v. Pretty Girl Fashions, Inc., 778 F. Supp. 2d 261, 269 (E.D.N.Y.
2011) (finding for the plaintiff on a Lanham Act claim, and
declining to reach additional claims because the “scope of the
[injunctive] relief sought at this stage . . . is identical
regardless of whether the Plaintiff would be likely to succeed on
any of its additional claims”)).
2

8

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forever.” (quoting FMC Corp. v. Taiwan Tainan Giant
Indus. Co., 730 F.2d 61, 63 (2d Cir. 1984)));
4)

Defendants, or others acting in concert with Defendants,
would

likely

destroy,

move,

hide

or

otherwise

make

assets inaccessible to the Court if Plaintiff proceeded
on notice to Defendants, thus frustrating the ultimate
relief that Plaintiff seeks.
5)

The

balance

of

the

See FED. R. CIV. P. 65(b);

parties’

prospective

harms,

the

equities, and the interests of justice and the public
support

granting

such

relief,

because

the

harm

to

Plaintiff from the denial of the requested ex parte order
outweighs

the

harm

to

Defendants’

interests

against

granting such an order;
6)

The TRO will not harm the public interest; and

7)

Pursuant to Rule 65(c), Plaintiff is directed to post
security

with

the

Clerk

of

Court

in

the

amount

of

$10,000.00, as further detailed, infra.
Accordingly,

for

the

foregoing

reasons,

Plaintiff’s

motion for a TRO is GRANTED as described infra.
EX PARTE SURRENDER ORDER
Second, Plaintiff seeks an order directing Defendants:
(1) return all of DermSources trade secrets and confidential and
proprietary

information,

without

limitations

and

in

whatever

formats Defendants have them; as well as (2) make all electronic
9

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 10 of 23 PageID #: 1667

accounts in Defendants’ custody or control and on which they stored
information regarding DermSource’s trade secrets and confidential
and proprietary information available and accessible to Plaintiff
– including providing relevant passwords – for inspection to ensure
said

secrets

and

information

are

improperly copied or distributed.

secure

and

have

not

(See TRO Motion at 3-4.)

been
Thus,

in addition to arguing its entitlement to a TRO because it has
shown irreparable harm, a likelihood of success on the merits of
its claims, that granting the TRO is in the public interest, and
equities of granting the TRO tip in DermSource’s favor, Plaintiff
summarily asserts its entitlement to an order of surrender pursuant
to the DTSA, the Wiretap Act, and the CFAA (see Support Memo at 8;
see also id. at 9 (re: Wiretap Act).)
In

that

regard,

in

a

conclusory

manner,

DermSource

contends “the Court should grant a TRO . . . to prevent Defendants
from continuing to possess and cause further damage to DermSource
as a result of their unauthorized possession of DermSource’s
[confidential
DermSource’s

and

proprietary

customers

and

information],

employees.”

and
(Id.)

its

theft

of

Similarly,

Plaintiff argues “[i]njunctive relief is also warranted under the
Wiretap Act to . . . prevent [the] use and require the surrender
of Defendants’ electronic devices . . . .”
added) (citing 18 U.S.C. § 2520(b)).)

10

(Id. at 9 (emphasis

Moreover, other than naming

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 11 of 23 PageID #: 1668

the CFAA, Plaintiff does not advance any argument relying upon
that statute.
I.

(See id. at 8-9.)

Applicable Law
A.

The DTSA

The

DTSA

permits

a

court

to,

in

“extraordinary

circumstances, issue an order providing for the seizure of property
necessary to prevent the propagation or dissemination of the trade
secret

that

is

1836(b)(2)(A)(i).

the

subject

of

the

action.”

18

U.S.C.

§

Prior to issuing an ex parte seizure order, the

Court must find “that it clearly appears from specific facts” that:
1)

an order issued pursuant to Rule 65 of the Federal Rules
of Civil Procedure or another form of equitable relief
would be inadequate because the party to which the order
would be issued would evade, avoid, or otherwise not
comply with such an order;

2)

an immediate and irreparable injury will occur if such
seizure is not ordered;

3)

the harm to the applicant of denying the application
outweighs the harm to the legitimate interests of the
person against whom seizure would be ordered of granting
the application and substantially outweighs the harm to
any third parties who may be harmed by such seizure;

4)

the applicant is likely to succeed in showing that the
information at issue is a trade secret and the defendant
11

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 12 of 23 PageID #: 1669

misappropriated the trade secret by inappropriate means
or conspired to do so;
5)

the person against whom seizure would be ordered has
actual possession of the trade secret, and any property
to be seized;

6)

the application describes with reasonable particularity
the matter to be seized and, to the extent reasonable
under the circumstances, the location where the matter
is to be seized;

7)

if the applicant were to provide notice, the person
against whom seizure would be ordered would destroy,
move, hide, or otherwise make such matter inaccessible
to the court; and

8)

the applicant has not publicized the requested seizure.

18 U.S.C. § 1836(b)(2)(A)(ii); see also Vice Cap., LLC v. CBD
World, LLC, No. 18-CV-0566, 2018 WL 8786293, at *2 (W.D. Okla.
June 20, 2018); Solar Connect, LLC v. Endicott, No. 17-CV-1235,
2018 WL 2386066, at *1 (D. Utah Apr. 6, 2018); The Ruby Slipper
Café, LLC v. Belou, No. 18-1548, slip op. (E.D. La. Sept. 30,
2019).
Further, if the Court issues a seizure order it must
(1) set forth findings of fact and conclusions of law; (2) provide
for the narrowest seizure of property necessary and direct that
the seizure be conducted in a manner that minimizes any legitimate
12

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business operations; (3) be accompanied by an order prohibiting
access by the applicant or the defendant, and prohibiting any
copies of the seized property; (4) provide that if access is
granted by the court to the applicant or the defendant, such access
shall be consistent with 18 U.S.C. § 1836(D); (5) provide guidance
to the law enforcement officials executing the seizure that clearly
delineates the scope of the authority of the officials; (6) set a
date for a hearing at the earliest possible time, but that is not
later than seven days after the order has issued; and (7) require
the person obtaining the order to provide a security determined by
the court for the payment of any damages as a result of a wrongful
or excessive seizure.

See 18 U.S.C. § 1836(b)(2)(B); Vice Cap.,

LLC, 2018 WL 8786293, at *2 (summarizing elements of seizure
order).
B.

The Wiretap Act

Pursuant to Section 2520 of Title 18 of the United States
Code, in certain instances one is entitled to recover civil damages
for illegal wiretapping, i.e.:
[A]ny person whose wire, oral, or electronic
communication is intercepted, disclosed, or
intentionally used in violation of this
chapter may in a civil action recover from the
person or entity, other than the United
States, which engages in that violation such
relief as may be appropriate.
18 U.S.C. § 2520(a).

Among other appropriate relief authorized by

Section 2520 of the Wiretap Act is “such preliminary and other
13

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 14 of 23 PageID #: 1671

equitable or declaratory relief as may be appropriate.”

18 U.S.C.

§ 2520(b)(1).
II.

Application
Upon the record presented, the Court is unable to find

that Plaintiff has met its burden to show that extraordinary
circumstances

warrant

issuance

pursuant to the DTSA.

of

an

ex

parte

seizure

order

Indeed, Plaintiff has not presented any

meaningful argument that the Court-issued TRO is inadequate to
prevent

Defendants

from

disseminating

confidential and proprietary information.
argument

in

support

of

an

order

trade

secrets

and/or

At best, Plaintiff’s

directing

Defendants’ electronic devises is conclusory.

the

surrender

of

Even if the Court

were to interpret DermSource’s surrender request as an argument
that Defendants may ignore the TRO order, that does not constitute
a clear showing from specific facts necessary to demonstrate that
Rule 65’s protections are inadequate.

See, e.g., ARB Labs Inc. v.

Woodard, No. 19-CV-0116, 2019 WL 332404, at *3–4 (D. Nev. Jan. 25,
2019) (“Though these facts raise the possibility that Woodard would
ignore an order under Rule 65, it doesn’t clearly appear from them
that he ‘would.’

As I am not persuaded that an order under FRCP

65 would be ‘inadequate,’ I deny plaintiffs’ motion for a civil
seizure order.”).

Rather, upon the record presented, there is an

absence of specific facts warranting the issuance of a seizure
order, which is primarily reserved for extraordinary circumstances
14

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in which Rule 65’s protections have failed.

Cf. Solar Connect,

2018 WL 2386066, at *2 (finding equitable and injunctive relief
inadequate based upon defendants’ “high level of computer and
technical

proficiency,”

past

attempts

to

delete

data

and

information from computers, “willingness to provide false and
misleading information,” and “willingness to hide information and
move computer files rather than comply with requests to cease use
of plaintiff’s proprietary materials”); The Ruby Slipper Café,
LLC, No. 18-1548, slip op. at

3 (issuing ex parte seizure order

where

the

defendants

disregarded

Court’s

Rule

65

Orders

and

destroyed or hid relevant evidence); Vice Cap., LLC, 2018 WL
8786293,

at

*2-3

(same,

where

defendants

improperly

retained

plaintiffs’ customer list and showed “a willingness to provide
false and misleading information to said customers,” including
that plaintiffs’ products “were tainted” and would make customers
sick); AVX Corp. v. Kim, No. 17-CV-0624, 2017 WL 11316598, at *2
(D.S.C. Mar. 13, 2017) (same, where defendant demonstrated his
likelihood to evade, avoid, or otherwise not comply with a Rule 65
order

by

“his

deceptive

actions

when

he

repeatedly

lied

and

attempted to conceal the fact that he surreptitiously accessed and
downloaded the Stolen Computer files”).

For substantially the

same reasons, issuing the requested surrender order within the

15

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context of the Court’s TRO order and pursuant to the Wiretap Act
is not warranted. 3
Hence, at this juncture, the Court declines to issue the
requested

ex

parte

surrender

order.

However,

in

the

event

Plaintiff becomes aware of additional facts to support issuance of
such

an

order,

Plaintiff

is

permitted

to

renew

its

request.

Accordingly, Plaintiff’s motion for a seizure order is DENIED
without prejudice.
CONCLUSION
Accordingly,

based

on

the

foregoing,

IT

IS

HEREBY

ORDERED that the branch of the Plaintiff’s ex parte injunction
motion seeking a TRO (ECF No. 4) is GRANTED, as stated herein;
IT IS FURTHER ORDERED that Defendants are to show cause
at an IN-PERSON HEARING before this Court in Courtroom 1030 of the

Nevertheless and to be clear, Defendants are under a duty to
preserve evidence. Indeed, “anyone who anticipates being a party
or is a party to a lawsuit must not destroy unique, relevant
evidence that might be useful to an adversary.” Zubulake v. UBS
Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (citing Turner v.
Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y. 1991)).
“While a litigant is under no duty to keep or retain every document
in its possession . . . it is under a duty to preserve what it
knows, or reasonably should know, is relevant in the action, is
reasonably calculated to lead to the discovery of admissible
evidence, is reasonably likely to be requested during discovery
and/or is the subject of a pending discovery request.” Id. Here,
Plaintiff has pled claims regarding, inter alia, improper
misappropriation of its trade secrets and confidential and
proprietary information (see Compl); thus, Defendants have an
affirmative obligation to ensure that any relevant evidence is not
destroyed, independent of a TRO order.
3

16

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 17 of 23 PageID #: 1674

Central Islip Federal Courthouse located at 100 Federal Plaza in
Central Islip, New York, on Monday, January 30, 2023, at 9:30 a.m.,
or as soon thereafter as counsel may be heard, why an order should
not be issued pursuant to Rule 65 of the Federal Rules of Civil
Procedure:
1)

Preliminarily enjoining Defendants from:
(a)

using in any manner whatsoever DermSource’s trade
secrets

and

confidential

information

including,

DermSource’s

customer

and

proprietary

without

limitation,

database,

including

the

identity and contact information of DermSource’s
customers,

or

DermSource’s
financial

any

other

customers,

information,

information
clients,

pricing

regarding

transactions,

information,

or

other matters involving DermSource;
(b)

directly or indirectly having any contact with any
of Plaintiff’s current and/or former employees;

(c)

continuing to serve DermSource’s customers until
such

time

secrets

that
and

DermSource

recovers

confidential

and

its

trade

proprietary

information from Defendants;
(d)

operating their business until such time that they
return DermSource’s trade secrets and confidential
and proprietary information;
17

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(e)

directly or indirectly further violate the Defend
Trade Secrets Act, the Wiretap Act, and/or the
Computer Fraud & Abuse Act, including the use of
DermSource’s trade secrets and confidential and
proprietary information, the use of any device to
intercept oral communications made by principals of
Plaintiff, and the use of any device to hack into
Plaintiff’s

computer

systems,

and

unfairly

competing with Plaintiff in any manner; and
2)

Directing Defendants:
(a)

return to DermSource all originals and copies of
documents, records, and information, whether in
hard

copy

and/or

computerized

and/or

other

electronic media form, that contain DermSource’s
trade

secrets

and

confidential

information

including,

DermSource’s

customer

and

without

database,

proprietary
limitation,

including

the

identity and contact information of DermSource’s
customers, and for each customer of DermSource, the
services

offered

DermSource’s

and

payments

customers,

and/or

received
other

from

matters

involving DermSource and which Defendants obtained
or

accessed,

information

including,

regarding
18

without

DermSource’s

limitation,
customers,

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 19 of 23 PageID #: 1676

clients,

transactions,

financial

information,

pricing information, or other sensitive information
involving DermSource; and
(b)

make all electronic accounts that are in their
custody

or

control

and

on

which

they

stored

information regarding DermSource’s trade secrets
and

confidential

and

proprietary

information

available and accessible to DermSource (including
providing relevant passwords) to inspect to ensure
DermSource’s trade secrets and confidential and
proprietary information is secure and has not been
improperly copied or distributed.
(See
Proposed Order to Show Cause, ECF No. 4, at 1-3.)
--IT IS FURTHER ORDERED that, sufficient reason having
been shown, pending the hearing of Plaintiff’s injunction motion
seeking a preliminary injunction pursuant to Rule 65 of the Federal
Rules of Civil Procedure:
1)

Defendants

are

hereby

TEMPORARILY

RESTRAINED

AND

ENJOINED from:
(a)

USING IN ANY MANNER WHATSOEVER DermSource’s trade
secrets

and

confidential

information

including,

DermSource’s

customer

and

proprietary

without

limitation,

database,

including

the

identity and contact information of DermSource’s
19

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 20 of 23 PageID #: 1677

customers,

or

DermSource’s
financial

any

other

customers,

information,

information
clients,

pricing

regarding

transactions,

information,

or

other matters involving DermSource;
(b)

directly or indirectly having any contact with any
of Plaintiff’s current and/or former employees;

(c)

continuing to serve DermSource’s customers until
such

time

secrets

that
and

DermSource

recovers

confidential

and

its

trade

proprietary

information from Defendants;
(d)

contacting any of DermSource’s clients or customers
and/or individuals currently performing services
for DermSource;

(e)

directly or indirectly further violating the Defend
Trade Secrets Act, the Wiretap Act, and/or the
Computer Fraud & Abuse Act, including the use of
DermSource’s trade secrets and confidential and
proprietary information, the use of any device to
intercept oral communications made by principals of
Plaintiff, and the use of any device to hack into
Plaintiff’s

computer

systems,

and

unfairly

competing with Plaintiff in any manner; and
2)

Defendants are DIRECTED TO MAINTAIN AND PRESERVE all
originals

and

copies
20

of

documents,

records,

and

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 21 of 23 PageID #: 1678

information that contain DermSource’s trade secrets and
confidential and proprietary information -- regardless
of

the

fashion

or

manner

in

which

they

are

held,

possessed or stored -- including, without limitation,
DermSource’s customer database, including the identity
and contact information of DermSource’s customers, and
for each customer of DermSource, the services offered
and

payments

and/or

other

Defendants

received
matters

from

obtained

DermSource’s

involving
or

DermSource

accessed,

limitation,

information

customers,

clients,

customers,
and

including,

regarding
transactions,

which

without

DermSource’s
financial

information, pricing information, or other sensitive
information involving DermSource.
IT IS FURTHER ORDERED that this Temporary Restraining
Order will expire fourteen (14) days from its entry in accordance
with Federal Rule of Civil Procedure 65(b)(2) unless, for good
cause shown, this Order is extended or Defendants consent to an
extension.
IT IS FURTHER ORDERED that, pursuant to Federal Rule of
Civil Procedure 65(c), Plaintiff is required to give security in
the amount of $10,000 (in the form of a bond, cashier’s check or
certified bank check) by no later than Friday, January 20, 2022;
said security it to be submitted to the Clerk of Court.
21

(Note:

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 22 of 23 PageID #: 1679

The Clerk’s Office in the Central Islip Federal Courthouse is
opened from 10:00 a.m. to 3:00 p.m.)
IT

IS

FURTHER

ORDERED

that

Plaintiff

shall

serve

Defendants with a copy of this Order, together will all of the
papers and materials that Plaintiff filed with the Court, by no
later than 5:00 p.m. on Thursday, January 19, 2023.

Service shall

be made upon Defendants via email to their counsel, Gary M. Kushner
and Howard M. Rubin, Esqs., of Geotz Fitzpatrick, LLP, via email4
to

[e-mail]

and

[e-mail],

and

such

service shall be deemed good and sufficient.
IT IS FURTHER ORDERED that Plaintiff shall file proof of
service of this Order and its TRO submissions to the docket by no
later than Friday, January 20, 2023;
IT IS FURTHER ORDERED that responsive papers, if any,
must be filed and served to Plaintiff’s attorney, via email to
[e-mail], by no later than 5:00 p.m. on Tuesday,
January 24, 2023, and reply papers, if any, must be filed and
served upon Defendants, via the emails designated above, by no
later than 12:00 noon on Wednesday, January 26, 2023.
are ON NOTICE:

Defendants

Failure to timely serve and file answering papers,

or the failure to appear at the hearing, may result in the

Plaintiff represents that Defendants’ attorneys have agreed to
accept service on behalf of Defendants. (See TRO Motion at 5.)
4

22

Case 2:23-cv-00281-JS-JMW Document 11 Filed 01/18/23 Page 23 of 23 PageID #: 1680

imposition of a preliminary injunction against them pursuant to
Federal Rule of Civil Procedure 65.
IT IS FURTHER ORDERED that, by no later than 12:00 noon
on Friday, January 27, 2023, the parties shall file a joint letter
advising the Court whether they intend to call witnesses at the
show

cause

hearing

on

Plaintiff’s

motion

for

a

preliminary

injunction, and, if so, provide the names of said witnesses.
IT

IS

FURTHER

ORDERED

that

Plaintiff’s

request

for

issuance of an ex parte surrender order is DENIED without prejudice
to renew consistent with this Order.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: January 18, 2023
Central Islip, New York
Time:

4:50 p.m.

23