Renewal By Andersen LLC v. Fillar

Filing 7

Opinion and Order signed by Judge James S. Gwin on 6/3/15. The Court denies plaintiff's motion for temporary restraining order and grants the motion for expedited discovery. The Court will conduct a status conference on 6/11/15 at 9:00 a.m., Courtroom 18A (Cleveland) to schedule the preliminary injunction briefing and hearing. Plaintiff shall ensure that Defendant Fillar receives a copy of this Opinion and Order. (Related Docs. 3 , 5 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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RENEWAL BY ANDERSEN, LLC,
:
:
Plaintiff,
:
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v.
:
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GREGORY J. FILLAR,
:
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Defendant.
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:
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CASE NO. 1:15-CV-01117

OPINION & ORDER
[Resolving Doc. 5]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On June 2, 2015, Plaintiff Renewal by Andersen, LLC (“Renewal”) filed a complaint and a
motion for a temporary restraining order, expedited discovery, and preliminary injunction against its
former employee, Defendant Gregory Fillar.1/ Plaintiff Renewal seeks to restrain Fillar from disclosing
Renewal information and seeks to stop Fillar from working for a Renewal competitor. For the reasons
below, the Court DENIES the motion for a temporary restraining order, GRANTS the motion for
expedited discovery, and schedules a status conference for June 11, 2015, at 9:00 a.m. in Courtroom
18A (Cleveland) to set the timing for a preliminary injunction hearing.
I. Background
Plaintiff Renewal is “a business engaged in the sale and installation of replacement windows
and doors for the home.”2/ Renewal employed Defendant Fillar in a sales position from August 2013

1/

Docs. 1, 3, 5.

2/

Doc. 1 at 2.

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Case No. 1:15-CV-01117
Gwin, J.
to April 26, 2015.3/ Defendant Fillar’s employment contract contained provisions prohibiting the
disclosure of confidential information and barring Fillar from competing with Renewal for two years
after leaving Renewal.4/
Plaintiff Renewal says that on April 26, 2015, Fillar resigned, saying he needed to attend to
childcare responsibilities. Plaintiff Renewal says, however, that in reality Defendant Fillar began
working on April 19, 2015, for Unique Home Solutions (“Unique”), a competitor of Plaintiff Renewal.
Renewal alleges that Fillar does the same work for Unique in the same geographic area as Fillar had
with Renewal.
Plaintiff Renewal says that its sales methodology, pricing system, and other information are
trade secrets or otherwise confidential information protected by Fillar’s employee agreement. Plaintiff
Renewal further says that it will be irreparably harmed by disclosure of confidential information and by
lost good will if Unique continues Fillar’s employment.
II. Legal Standards
The Court applies the traditional four-part test to determine whether a temporary restraining
order is appropriate. The Court must consider whether: (1) there is a substantial likelihood of success
on the merits, (2) the temporary restraining order is necessary to prevent irreparable injury, (3) the
injury to the plaintiff outweighs any harm to the nonmovant, and (4) the temporary restraining order
would serve the public interest.5/
III. Analysis

3/

Id. at 1.
Doc. 1-1.
5/
See, e.g., Summit Cnty. Democratic Cent. & Exec. Comm. v. Blackwell, 388 F.3d 547, 550–51 (6th Cir. 2004); see
also Fed. R. Civ. P. 65(b).
4/

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Case No. 1:15-CV-01117
Gwin, J.
The Court concludes that Plaintiff Renewal has not adequately shown a risk of irreparable harm
to justify granting a temporary restraining order.
First, as to the alleged disclosure of trade secrets or otherwise confidential information, the
Court notes that although Plaintiff Renewal makes a number of generalized assertions that various
pieces of information provided it a competitive advantage, the only specific information centers on the
sales methodology and the proprietary pricing system.6/
It appears that since returning the laptop containing the proprietary pricing system on April 26,
2015, Defendant Fillar no longer has access to the pricing system. Even if Plaintiff Renewal prevails
on a claim that Defendant Fillar wrongfully used this system during the week of April 19, 2015,
Renewal has given no reason to think that money damages would be inadequate to remedy this discrete
harm. Likewise, Plaintiff Renewal has not explained how Defendant Fillar would use the proprietary
sales methodology, which includes “us[ing] Renewal’s proprietary pricing program to arrive at a precise
estimate,” now that he has returned the pricing program.7/
As to the more generalized allegations that Defendant Fillar is misusing confidential information,
Renewal has not adequately shown what information Defendant Fillar had access to that would be
protectable. For example, while working at Plaintiff Renewal, Defendant Fillar would “make calls on
potential clients provided to him by his sales manager,”8/ which suggests that Fillar did not have an
independent base of customers or a compiled customer list to disclose.
Second, as to the breach of the non-compete clause, Plaintiff Renewal rests its argument for

6/

Doc. 3-1 at 2.
Doc. 1 at 3.
8/
Id. at 3.
7/

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Case No. 1:15-CV-01117
Gwin, J.
irreparable injury on the loss of good will. Loss of good will can constitute irreparable injury in some
circumstances due to the difficulty of quantifying the loss.9/ But in this case, it seems likely that each
customer constitutes a relatively small portion of each company’s revenue and that repeat business is
relatively infrequent. Thus, even if Plaintiff Renewal ultimately wins on the merits, damages from the
loss of good will should not be so difficult to quantify that the loss would be irreparable.
IV. Conclusion
For the foregoing reasons, the Court DENIES Plaintiff Renewal’s motion for a temporary
restraining order. On June 11, 2015, at 9:00 a.m. in Courtroom 18A (Cleveland), the Court will hold a
status conference to set a schedule for preliminary injunction briefing and a hearing. Plaintiff
Renewal’s motion for expedited discovery is GRANTED. Plaintiff Renewal is responsible for
ensuring that Defendant Fillar receives a copy of this order.
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: June 3, 2015

9/

Langley v. Prudential Mortg. Capital Co., 554 F.3d 647, 649 (6th Cir. 2009) (citing Basicomputer Corp. v. Scott,
973 F.2d 507, 511 (6th Cir. 1992)).

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