Sears Authorized Hometown Stores, LLC v. Six and Two LLC et al

Filing 35

Temporary Restraining Order, Order to Show Cause, and Order for Provisional Process. Signed on 7/12/2018 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

SEARS AUTHORIZED HOMETOWN
STORES, LLC, a Delaware limited liability
company,
Plaintiff,

Case No. 3:18-cv-1142-SI
TEMPORARY RESTRAINING ORDER,
ORDER TO SHOW CAUSE, AND
ORDER FOR PROVISIONAL
PROCESS

v.
SIX AND TWO LLC, an Oregon limited
liability company; C.O. Sears Hometown
Stores LLC, an Oregon limited liability
company; and HEIDI LEE WOOD,
Defendants.
Michael H. Simon, District Judge.
This matter came before the Court on Plaintiff Sears Authorized Hometown Stores,
LLC’s (“Sears Hometown”) Motion for Temporary Restraining Order and Order to Show Cause
Why a Preliminary Injunction Should Not Issue Against Defendants, and Motion for an Order
for Provisional Process—Replevin and Claim and Delivery (the “Motions”).
Based upon the record in this case, including the Declarations of Robert Sanstra, Mike
Jordison, Molly Hill-Woodworth, Richard Jaschke, Lisa Lizotte, David Albertson, Susan S. Ford
and supporting exhibits, the Court finds that Sears Hometown is likely to succeed on the merits

PAGE 1 – TEMPORARY RESTRAINING ORDER

of its breach of contract conversion and replevin claims, and if Defendants are not immediately
restrained as set forth in this Order, Sears Hometown will be irreparably harmed as follows:
(1) lost goodwill and benefits of the relationships established with customers and prospective
customers; (2) damaged reputation; and (3) substantial diminishment or destruction or
dissemination of confidential and proprietary business information. Damages to goodwill,
reputation, and confidential and proprietary business information are harms that are difficult to
quantify, not easily compensable, and therefore constitute irreparable harm. In addition, there is a
serious risk of irreparable harm to the public, namely Sears Hometown’s customers, if
Defendants are not immediately restrained as set forth in this Order.
The Court further finds that the balance of the equities favors Sears Hometown in this
case because the property and information at issue is likely owned entirely by Sears Hometown
and Defendants do not appear to have any ownership interest in the property. A temporary
restraining order also is in the public interest because the public interest favors protecting
property and confidential information and ensuring that property is returned to its rightful owner.
Therefore, an immediate temporary restraining order is warranted.
An order of provisional process granting replevin and claim and delivery against
Defendants of all Merchandise (as defined in Plaintiff’s Motions), including all snow-throwers,
and all cash proceeds of all sales of all Merchandise, wherever such Merchandise and cash may
be located, including, without limitation, all Merchandise within the Sears Hometown Stores in
Bend and Madras, Oregon and at Wood’s personal residence, is also warranted as Sears
Hometown has shown a likely superior property interest in the Merchandise, snow-throwers, and
cash proceeds of sales of all Merchandise, and is entitled to an accounting of all such property
and cash and immediate possession thereof.

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Accordingly, it is ORDERED:
1.

Within five calendar days of the entry of this Order, Defendants shall grant Sears

Hometown access to the Prineville, Bend, and Madras stores and any and all physical files,
equipment, and devices containing the Confidential Information (as defined in Plaintiff’s
Motions), including (1) the registers and all computers located at the Stores; (2) any and all
credit card processing devices; and (3) any and all computers and servers from the Stores in
Defendants’ possession, custody, or control, to enable Sears Hometown to purge any
Confidential Information.
2.

Within five calendar days of the entry of this Order, Defendants shall cause all

locks placed on the Madras and Bend Stores by Defendants to be removed, and Defendant shall
facilitate, and in no way impair or impede, Sears Hometown’s access to the Stores to take
possession of and remove the Merchandise and other property owned by Sears Hometown
located at the Stores. If such locks are not removed within five calendar days of the Court’s
Order, Plaintiff shall be permitted to and are hereby authorized to remove the locks. In addition,
Defendants shall account for and shall turn over and deliver to Sears Hometown any and all
Merchandise, snow-throwers, cash proceeds from the sale of Merchandise and all other property
owned by Sears Hometown kept at or removed to any location whatsoever by Defendants,
including Wood’s residence address.
3.

Plaintiff, through its legal counsel, and Defendant Wood shall cooperate and

jointly inspect the relevant premises within five calendar days. For all property that the parties
agree belongs to Wood, Wood shall be allowed to remove that property in the presence of a
representative from Plaintiff’s legal counsel, but the parties shall maintain and exchange a
written inventory of that property. For all property that the parties agree belongs to Plaintiff,

PAGE 3 – TEMPORARY RESTRAINING ORDER

Plaintiff shall be allowed to remove that property in the presence of Wood, but the parties shall
maintain and exchange a written inventory of that property. For all property that the parties
cannot agree about ownership, Plaintiff shall be allowed to remove that property in the presence
of Wood, but shall segregate that property, maintain its condition, and the parties shall maintain,
exchange, and file with the Court a written inventory of that disputed property. The Court will
address the disputed property at the next hearing. If any disputed property consists of computers
that Wood contends belong to her, Wood shall allow Plaintiff’s computer forensic expert to
obtain a mirror image of all stored memory, including the hard-drive.
4.

Defendants and their employees, other agents, and all persons in active concert

with them shall not access, use or disclose any Confidential Information.
5.

Plaintiff may at any time seek the assistance of law enforcement to enforce the

terms of this Order or to ensure there is no breach of the peace in performing its provisions.
6.

Defendants are ordered to appear in person in Courtroom 15B of the United States

District Court for the District of Oregon, 1000 SW Third Ave., Portland, OR 97204, on
Thursday, August 2, 2018, 1:00 p.m. to show cause why a preliminary injunction should not
issue so that the order requested above continues and remains in effect while this action is
pending.
7.

Service of this Order shall be effective upon Plaintiff’s transmission of this Order

to Defendants at an email address to be provided by Defendant Wood.
8.

This Order shall expire at the date and time set forth in paragraph 6 above, unless

extended by further order of the Court.
8.

Pursuant to Rule 65(c), Plaintiff is required to post a bond with the Clerk of the

Court in the amount of $2,000.00.

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IT IS SO ORDERED.
DATED this 12th day of July, 2018 at 12:00 noon.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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