Prometheus Group Enterprises, LLC v. Viziya Corp. et al

Filing 8

ORDER denying 2 Motion for Temporary Restraining Order. A hearing will be held on plaintiff's motion for preliminary injunction during the Court's February 2014 term. Signed by US District Judge Terrence W. Boyle on 1/27/2014. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-32-BO

PROMETHEUS GROUP ENTERPRISES,
LLC,
Plaintiff,

)
)
)
)

)
)
v.
)
VIZIYA CORP., GLOBAL PTM, INC. and )
)
TERRY OWENS,
)
)
Defendants.

ORDER

This cause comes before the Court on plaintiffs request for temporary restraining order
(TRO). For the reasons discussed below, plaintiffs request is denied.
BACKGROUND
Plaintiff alleges the following facts in support of its complaint and request for TRO and
preliminary injunction:
Plaintiff is a technology company engaged worldwide in the business of developing,
manufacturing, and marketing enterprise application software. Specifically, plaintiff specializes
in improving the usability and user adoption of SAP's plant maintenance module. Plaintiff hired
defendant Owens in September 2012 and, prior to his resignation in December 2013, Owens
served as the company's Director of Sales for North America and Europe. When he was hired,
Owens entered into an agreement that requires him to refrain from disclosing and using
plaintiffs proprietary information except in connection with his duties while working for
plaintiff. Owens also agreed to refrain from working for a restricted business within a restricted

territory for one year following his departure from plaintiff and to refrain from directly or
indirectly soliciting customers to whom plaintiff sold any product or for whom plaintiff
performed any services for two years following his departure (non-compete and non-solicitation
agreements). A restricted business is defined by the agreement to include, among other things,
any business related to providing services related to manufacturing, selling, or distributing
software applications related to SAP enterprise software installments.
Plaintiff alleges that between November 2013 and January 2014, Owens and several
other employees resigned en-masse in order to work for defendant Viziya Corp. or its
subsidiaries. Plaintiff alleges that Viziya is a direct competitor that also provides enterprise asset
management software to companies. Plaintiff alleges that, in addition to violating his noncompete and non-solicitation agreements, Owens has misappropriated highly sensitive
proprietary information, including reports summarizing global sales activity and 2013 license
sales as well as a pipeline report detailing all pertinent data for every business opportunity that
plaintiff is pursuing, by forwarding them to his personal email account prior to his departure.
Plaintiff contends that Owens has or will inevitably disclose or use on behalf ofViziya plaintiffs
confidential and proprietary information.
DISCUSSION
Whether considering a request for temporary restraining order or a motion for
preliminary injunction, a movant must establish each of four elements before such relief may
issue: 1) he is likely to succeed on the merits, 2) he is likely to suffer irreparable harm in the
absence of preliminary relief, 3) the balance of equities tips in his favor, and 4) an injunction is
in the public interest. Winter v. Natural Res. Def Counsel, Inc., 555 U.S. 7, 20 (2008). A
temporary restraining order is a similar remedy to a preliminary injunction. The difference is

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that "a preliminary injunction preserves the status quo pending a final trial on the merits, [while]
a temporary restraining order is intended to preserve the status quo only until a preliminary
injunction hearing can be held." Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411,
422 (4th Cir. 1999). A temporary restraining order is an "emergency procedure and is
appropriate only when the applicant is in need of immediate relief." 11A Charles Wright, Arthur
Miller & Mary Kane, Federal practice and Procedure § 2951 (2d ed.).
Plaintiff has failed to demonstrate the need for immediate relief to preserve the status
quo at this time and on this record. While plaintiff alleges that Owens and other former
employees, who are not named as defendants in this matter, have sent "proprietary" information
to their personal email accounts, plaintiff contends only that, based its belief that Owens has
breached his non-competition and non-solicitation agreements, "Owens has and will inevitably
continue to disclose to Viziya Companies certain confidential and proprietary information." lves
Decl.

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66. Plaintiff has proffered no evidence that would tend to show that any confidential

information has in fact been disclosed to Viziya nor has plaintiff established that the harm caused
by such disclosure would be irreparable. The record now before the Court simply does not
demonstrate that this is one of the "limited circumstances which demands" the grant of such
extraordinary interim relief. Steakhouse, Inc. v. City of Raleigh, 166 F .3d 634, 63 7 (4th Cir.
1999).
Because plaintiff has not demonstrated that it will suffer irreparable harm at this time, the
Court need not consider the other factors and denies plaintiffs request for temporary restraining
order. Plaintiffs claim for preliminary injunctive relief can be adequately considered at a
hearing on its motion for preliminary injunction and at that time, if necessary, adequate
protections can be fashioned.

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CONCLUSION
Plaintiffs request for temporary restraining order is DENIED. A hearing will be held on
plaintiffs motion for preliminary injunction during the Court's __!_,.~~~~~..A~I~p~:J..-~~---2014, term.

SO ORDERED, this

_1L day of January, 2014.
TERRENCE W. BOYLE
UNITED STATES DISTRI

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