United States District Court, E.D. Michigan, Southern Division
States Magistrate Judge R. Steven Whalen
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
AND SCHEDULING HEARING ON MOTION FOR PRELIMINARY
GERSHWIN A. DRAIN United States District Judge
breach of contract case based on an alleged violation of a
non-compete provision. Pending before the Court is
Plaintiff's Motion for Temporary Restraining Order and
Preliminary Injunction .
BeneSys, Inc. (hereinafter “Plaintiff” or
“BeneSys”), is a Michigan corporation and an
administrator of Taft-Hartley benefits. Dkt. No. 1, pp. 1-2
(Pg. ID 1-2). On June 13, 2017, Plaintiff filed a complaint
against former employee, Jan E. (Liz) Cowles (hereinafter
“Ms. Cowles”), and Zenith American Solutions,
Inc. (hereinafter “Zenith”).
to the Complaint, Ms. Cowles accepted employment with BeneSys
on July 28, 2015 as a Privacy Officer and Director of
Compliance. Id., pp. 2-3 (Pg. ID 2-3). Pursuant to
the employment agreement between Ms. Cowles and BeneSys, Ms.
Cowles agreed to several non-compete provisions. Dkt. No.
1-2, pp. 2-3 (Pg. ID 16-17).
Cowles resigned from BeneSys on May 2, 2017. Dkt. No. 1, p. 5
(Pg. ID 5). BeneSys recently discovered that Ms. Cowles is
now the Director of Northwest Operations at Zenith, a
third-party administrator of Taft-Hartley benefits.
Id. Plaintiff contends that Ms. Cowles is violating
the terms of her employment agreement, yet neither Defendant
has complied with BeneSys' demand to enforce the
non-compete provisions and discontinue Ms. Cowles'
employment. According to BeneSys, “[a]s a direct
consequence of Cowles' and Zenith's action, BeneSys
stands to lose its employees, clients and customer, the
goodwill and referral business of its clients and customers,
and revenues in an amount that cannot be readily
ascertained.” Dkt. No. 5, p. 16 (Pg. ID 58).
20, 2017, BeneSys filed a Motion for Temporary Restraining
Order and Preliminary Injunction against both Ms. Cowles and
Zenith. Dkt. No. 5. As best as the Court can tell neither
Defendant has been served with the Complaint or the Motion
for Temporary Restraining Order and Preliminary Injunction.
restraining orders and preliminary injunctions are
extraordinary remedies designed to protect the status quo
pending final resolution of a lawsuit. See University of
Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68
L.Ed.2d 175 (1981); Bonnell v. Lorenzo, 241 F.3d
800, 808 (6th Cir.2001) (finding that preliminary injunctive
relief “is an extraordinary measure that has been
characterized as ‘one of the most drastic tools in the
arsenal of judicial remedies.' ”). Whether to grant
such relief is a matter within the discretion of the district
court. Certified Restoration Dry Cleaning Network, L.L.C.
v. Tenke Corp., 511 F.3d 535, 540 (6th Cir. 2007).
court may issue a temporary restraining order without written
or oral notice to the adverse party or its attorney only
(A) specific facts in an affidavit or a
verified complaint clearly show that immediate and
irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition;
(B) the movant's attorney certifies in
writing any efforts made to give notice and the reasons why
it should not be required.
Fed. R. Civ. P. 65(b) (emphasis added).
“stringent restrictions” imposed by Rule 65
“reflect the fact that our entire jurisprudence runs
counter to the notion of court action taken before reasonable
notice and an opportunity to be heard has been granted both
sides of a dispute.” Granny Goose Foods, Inc. v.
Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of
Alameda Cty., 415 U.S. 423, 439 (1974).
case, the Plaintiff fails to meet either requirement set
forth in Rule 65(b). Plaintiff failed to explain why its
motion for a temporary restraining order should be considered
on an ex parte basis or why ...