NMS, INC. v. Brey & Co. et al

Filing 7

Opinion & Order signed by Judge James S. Gwin on 3/23/16. For the reasons set forth in this order, the Court denies the plaintiff's motion to extend the temporary restraining order to 3/26/16. (Related Doc. 5 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
NMS, INC.,
:
:
Plaintiff,
:
:
vs.
:
:
BREY & Co., et al.,
:
:
Defendants.
:
:
-------------------------------------------------------

CASE NO. 16-CV-00545

OPINION & ORDER
[Resolving Doc. No. 5]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff NMS is an Ohio corporation that provides accounting services to clients in Ohio
and Florida.1 NMS previously employed Defendants Gayla Russell and Amy Diamond under an
Asset Purchase Agreement with Defendant Brey & Co.2 Brey had previously employed Russell
and Diamond.
NMS terminated Defendant Russell’s employment on or about October 1, 2015.3 NMS
terminated Defendant Diamond’s employment in the early part of 2015.4
NMS claims that Russell, Diamond and Brey violated a non-compete provision of the
Asset Purchase Agreement by servicing NMS clients. NMS sues Defendants for
misappropriation of trade secrets, tortious interference with business relationships, breach of
contract, and restitution.5
On March 2, 2016, NMS filed its Verified Complaint and motion for a temporary
restraining order in the Geauga County Common Pleas Court.6 NMS sought to restrain

1

Doc. 1-1 at ¶ 1.
Id. at ¶¶ 6-9.
3
Id. at ¶ 12.
4
Id. at ¶ 13.
5
Id.
6
Doc. 5 at ¶ 8.
2

Case No. 16-CV-545
Gwin, J.
Defendants from servicing clients on the client list and using other proprietary information
belonging to NMS.7 On March 2, 2016, the Geauga County Common Pleas Court issued a
TRO.8 NMS posted the bond on March 7, 2016, and the 14-day TRO became effective.9
Defendants removed the case to this Court on March 7, 2015.10 Plaintiff now moves for
an extension of the TRO to March 26, 2016.11 Plaintiff provides minimal supporting argument,
saying merely that it seeks the extension “[t]o preserve the status quo, and as a further incentive
for both sides to continue talking and minimize legal fees and other expenses.”12 Defendant
opposes the motion for the extension.13
In reviewing a motion for a temporary restraining order, this Court considers the familiar
four-factor test: “(1) whether the movant has shown a strong likelihood of success on the merits;
(2) whether the movant will suffer irreparable harm if the injunction is not issued; (3) whether
the issuance of the injunction would cause substantial harm to others; and (4) whether the public
interest would be served by issuing the injunctions.”14
Defendants raise compelling arguments that Plaintiff will not succeed on the merits.
Although Defendants’ motion to dismiss for lack of jurisdiction is currently unopposed,
Defendants raise colorable arguments that that this Court lacks personal jurisdiction over the
Defendants.15 Moreover, Defendants raise colorable arguments that a separate contract rather
than the Asset Purchase Agreement may control this case.16

7

Id. at ¶ 9.
Id. at ¶ 10.
9
Id. at ¶ 11.
10
Doc. 1.
11
Doc. 5.
12
Id. at ¶ 18.
13
Doc. 6.
14
Farnsworth v. Nationstar Mortg., LLC, 569 Fed. App’x 421, 425-26 (6th Cir. 2014) (quoting
Overstreet v. Lexington-Fayette Urban Co. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002)).
15
Doc. 4; Doc 6 at 3.
16
Doc 6 at 3-4; Doc. 6-1.
-28

Case No. 16-CV-545
Gwin, J.
However, the Court need not decide these issues to conclude that a temporary restraining
order is inappropriate in this instance. Plaintiff has not shown irreparable injury. Plaintiff has
not identified any particular client Defendants have contacted, or identified what confidential
information Defendants could use and how it would injure Plaintiff. Moreover, Plaintiff has not
shown that these alleged injuries cannot be remedied at law.17
For the foregoing reasons, the Court DENIES Plaintiff’s motion to extend the TRO to
March 26, 2016.

IT IS SO ORDERED.

Dated: March 23, 2016

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

Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006) (“To demonstrate irreparable harm, the
plaintiffs must show that . . . they will suffer ‘actual and imminent’ harm rather than harm that is
speculative or unsubstantiated.”).
-317