DariTech, Inc. v. Ward

Filing 11

ORDER: Granting Plaintiff's Motion for a Temporary Restraining Order 3 .Defendant Andy Ward, shall appear before this Court on June 6, 2011, at 1:30PM to Show Cause, if any thereby why this temporary order of restraint should not continue during the pendency of the action. Signed on 5/26/11 by Judge Anna J. Brown. (See formal 6 page Order). (mkk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

DARITECH, INC., a Washington
cor,
Plaintiff,

ll-CV-570-BR

TEMPORARY RESTRAINING
ORDER

v.

ANDY WARD, an individual,
Defendant.

JOHN M. KREUTZER
Smith Freed & Eberhard P.C.
111 SW Fifth Avenue, Suite 4300
Portland, OR 97204
[phone]
Attorneys for Plaintiff

BROWN, Judge.
This matter comes before the Court on Plaintiff Daritech,
Inc.'s Motion (#3) for Temporary Restraining Order.

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For the

reasons that follow, the Court GRANTS Plaintiff's Motion as
herein specified.

STANDARDS

A party seeking a temporary restraining order or preliminary
injunction must demonstrate (1) it is likely to succeed on the
meri ts,

(2)

it is likely to suffer irreparable harm in the

absence of preliminary relief,

(3) the balance of equities tips

in its favor, and (4) an injunction is in the public interest.
Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 374

(2008).

"The elements of [this) test are balanced, so that a stronger
showing of one element may offset a weaker showing of another.
For example, a stronger showing of irreparable harm to plaintiff
might offset a lesser showing of likelihood of success on the
merits."

Alliance For The Wild Rockies v. Cottrell, No.

09-35756, 2011 WL 208360, at *4
Winter,

129 S. Ct. at 392).

(9 th Cir. Jan. 25, 2011) (citing

Accordingly, the Ninth Circuit has

held "'serious questions going to the merits' and a balance of
hardships that tips sharply towards the plaintiff can support
issuance of a preliminary injunction, so long as the plaintiff
also shows that there is a likelihood of irreparable injury and
that the injunction is in the public interest."

Id., at *7.

"An injunction is a matter of equitable discretion"

and is

"an extraordinary remedy that may only be awarded upon a clear
2 - TEMPORARY RESTRAINING ORDER

showing that the plaintiff is entitled to such relief."

Winter,

129 S. Ct. at 376, 381.

PRELIMINARY FINDINGS OF FACT
For purposes of this Motion, the presently uncontested
record establishes the following:
Defendant Andy Ward worked for Plaintiff in Rickreall,
Oregon, from July 14, 2006, to September 24, 2010, when he
resigned.

When Defendant was promoted to Oregon Branch Manager

in January 2009, he entered into a Noncompetition and
Nonsolicitation Agreement which provided in pertinent part:
During his employment with DariTech and for a
period of two (2) years after termination of
Employee's employment for any reason, Employee
will not, in any manner, whether with or without
cause, directly or indirectly, either as owner,
officer, employee, independent contractor,
stockholder, agent, principal, manager,
consultant, partner or otherwise, (i) engage in
any business that is considered a competitor of
DariTech, the term "competitor" including, but not
limited to, persons or entities who sell,
distribute, manufacture, or repair dairy equipment
and/or related equipment or machinery within the
Oregon sales territory; (ii) hire or induce any
employee of DariTech to leave its employ or breach
an employment agreement with DariTech in order to
accept employment in a business or enterprise to
which Employee has directly or indirectly become
affiliated; or (iii) solicit DariTech's customers,
prospects, or vendors during such 2-year period.
Defendant currently works for Standley & Company whose
operations are in Idaho and Montana.
competitor of Plaintiff.

Standley is a direct

In his work for Standley, Defendant has

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been soliciting the Hutterite community in Montana.

The

Hutterites have been clients of Plaintiff since at least 2004.

DISCUSSION
If the Hutterite community in Montana is within the "Oregon
sales territory"

then it appears Defendant is in violation of

both the noncompetition and the nonsolicitation provisions of the
Agreement.

The term "Oregon sales territory" is not defined in

the Agreement.

Plaintiff has offered extrinsic evidence that its

Oregon Operations Manager was responsible for Montana sales and
service obligations.

Because Defendant was the Oregon Operations

Manager, this record supports the inference for purposes of this
Motion only that the "Oregon sales territory"

includes servicing

the Hutterite community in Montana.
Based on the uncontested record, the Court concludes
Plaintiff has made an adequate showing it will suffer immediate
and irreparable injury, loss or damage in the form of lost or
damaged goodwill, lost business, lost business opportunity, and
lost economic value of protected previously confidential and
proprietary information if Defendant is not immediately
restrained from competing against Plaintiff in Oregon and Montana
and from soliciting Plaintiff's customers and prospective
customers in Oregon and Montana.
In addition, the Court concludes Plaintiff has made a

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showing of likelihood of success on the merits sufficient to
warrant the issuance of a temporary restraining order.
The Court notes Defendant has not formally appeared in the
action and presently does not have counsel to assist him.
Nonetheless, Defendant has participated by telephone on May 25,
2011, and May 26, 2011, when the Court conducted its hearings on
this Motion.
Although the Noncompetition and Nonsolicitation Agreement
provides that a temporary restraining order may issue to enforce
its terms without the need for Plaintiff to post security, the
Court nonetheless concludes security in the amount of $3,500 is
sufficient to protect Defendant's interests during the pendency
of this temporary Order.
Accordingly,
1.

IT IS HEREBY ORDERED THAT:

Defendant is temporarily restrained and enjoined from
competing against Plaintiff in Oregon and Montana and
from soliciting Plaintiff's clients and prospective
customers in Oregon and Montana, including any work for
Standley & Company in Oregon and Montana pending
further order of the Court.

2.

Defendant shall appear before this Court

\ '. -'0(f mto show cause, if any thereby why this temporary
order of restraint should not continue during the
pendency of the action.

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3.

This Order will expire at the date and time stated in
paragraph 2 unless extended by further order or written
stipulation of the parties.

4.

This Order is effective upon Plaintiff's posting of
security in the amount of $3,500.

IT IS SO ORDERED.
DATED this 26 th day of May, 2011.

United States District Judge

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