United States District Court, N.D. New York
STUART F. KLEIN, ESQ., BOND, SCHOENECK & KING, LLC, Albany, New York, Attorneys for Plaintiff.
PHILLIP G. STECK, ESQ., COOPER, ERVING & SAVAGE, LLP, Albany, New York, Attorneys for Defendant.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
On August 1, 2014, Plaintiff commenced this action by filing a Summons and Complaint with the Warren County Clerk. See Dkt. No. 1-1. Defendant was served with the Summons and Complaint on or about August 9, 2014. In addition to the Summons and Complaint, Plaintiff also filed and served Defendant with an Order to Show Cause with Temporary Restraining Order. See Dkt. No. 1-1 at 36-38. On August 1, 2014, Supreme Court Judge David Krogmann granted Plaintiff's request for a temporary restraining order. See id.
Defendant removed the action to this Court on August 12, 2014 alleging complete diversity and an amount in controversy in excess of $75, 000. See Dkt. No. 1. Thereafter, Plaintiff filed another motion for a temporary restraining order/preliminary injunction in compliance with the Local Rules and Defendant filed a motion to vacate the temporary restraining order. See Dkt. Nos. 5, 8. On August 21, 2014, the Court issued a text order setting a date for oral argument and extended the expiration date of the temporary restraining order until it could hear the parties' arguments on the pending motions. See Dkt. No. 10.
Currently before the Court are Plaintiff's motion for a temporary restraining order and Defendant's motion to vacate.
Plaintiff Barton Mines produces garnet abrasives for water-jet cutting, coatings removal, surface preparation and other specialized applications. See Dkt. No. 1-1 at ¶ 3. "Simply stated, waterjets are industrial machine tools that cut all types of materials by harnessing the power of high pressure water and using it in a controlled fashion. The addition of abrasives to the water stream is necessary to be able to cut most materials." Id. at ¶ 4. Machines for the waterjet industry are supplied by a number of "Original Equipment Manufacturers" ("OEMs") and integrators that design, build and sell their equipment to industrial users. See id. at ¶ 5. A number of after market suppliers also serve the market for replacement parts as well as other consumables such as garnet abrasives. See id. Barton Mines produces and sells garnet abrasives, as well as manufactures and sells replacement parts for waterjet cutting systems. See id.
On April 26, 2010, Defendant Ricky Miller commenced his employment with Barton Mines. See id. at ¶ 11. Defendant Miller was hired for the position of Regional Sales Manager and, starting in 2011, he reported directly to William Flint, Barton's Vice President of Business Development. See id. at ¶ 12. Upon commencing his employment with Barton Mines, Defendant Miller executed an "Employee Confidentiality Agreement and Non-Competition Agreement" ("Employee Agreement"). The Employee Agreement contained the following provisions:
[Miller] covenants and agrees that so long as [Miller] is employed by [Barton], and for a period of two (2) years after the date of termination of [Miller's] employment by [Barton], whether such termination is voluntary or involuntary, [Miller] will not enter into or engage in, or be employed by or associated with, an entity that is engaged in the marketing, sales or distribution of garnet abrasives and waterjet replacement parts, whether as an individual for [Miller's] own account, or as a partner, joint venture, employee, agent, independent contractor or sales representative, officer, director or shareholder of any entity or other wise, or in any manner compete with [Barton] without [Barton's] specific written consent to do so.
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[Miller] covenants and agrees that when [Miller's] employment with [Barton] ends, whether voluntarily or involuntarily, [Miller] will not, for a period of two (2) years from the end of the employment relationship, directly or indirectly, solicit or attempt to solicit to do business that would compete with [Barton] in the marketing, sales or distribution of garnet abrasives and waterjet replacement parts.
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[Miller] also agrees that, for a period of two (2) years from the end of the employment relationship, whether voluntary or involuntary, [Miller] will not, either individually or through any person, firm, corporation or other entity for which [Miller] performs services or in which [Miller] has any interest, solicit or attempt to solicit any then current employee of [Barton] to leave.
Dkt. No. 1-1 at ¶¶ 16-17.
On Thursday, July 10, 2014, Defendant Miller contacted Barton Mines to inform the company that he was resigning because he had accepted an offer of employment with another company. See id. at ¶ 43. Defendant Miller informed Barton Mines that he was going to work for H2O Jet, which is part of Waterjet Holdings. See id. at ¶ 44. During this conversation, Defendant informed Barton Mines that he was going to be setting up distribution to sell H2O Jet's water pumps, as well as their waterjet parts. See id. at ¶ 45. Defendant also informed Barton Mines that his assigned territory was going to be everything west of the Mississippi River. See id. By letter dated July 14, 2014, Barton Mines advised Defendant of his continuing obligations under his Employee Agreement. See id. at ¶ 46.
On August 1, 2014, Plaintiff commenced this action seeking to enforce the Employee Agreement. Currently before the Court are Plaintiff's motion for a temporary restraining order and Defendant's motion to vacate the temporary restraining order issued by Judge Krogmann.
A. Standard of review
Under the federal framework, a TRO is "an extraordinary remedy never awarded as of right." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). In the Second Circuit, a movant for a TRO must show "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Blum v. ...