So, you have a rogue employee who has, under stealth of night, raided his office for coveted, confidential information, and joined a direct competitor in violation of his non-compete and non-disclosure agreement. You need to move swiftly to promptly enjoin this employee, and perhaps even the competitor, to protect your legitimate business interests. An ex parte Temporary Restraining Order is, most likely, not the appropriate remedy, as explained here. So what can you do?
You need to retain experienced counsel who is familiar with these types of injunctions in order to prepare the essential pleadings and motions quickly and efficiently. The easiest way to meet the initial evidentiary threshold is to have a Verified Complaint in which an officer or other employee of the company with first-hand knowledge of the facts, who is competent to testify about them, will attest to the truth of the factual averments in the complaint similar to an affidavit or verification of interrogatories. You can submit a separate affidavit, but simply verifying the complaint reduces the pages of filings and reduces the risk of errors between factual allegations and affidavit testimony. Consider a motion for appointment of a special process server to ensure immediate personal service of the summons and, later, the actual Order Granting Preliminary Injunction. Check local rules as use of special process servers can be restricted in some jurisdictions.
Prepare and contemporaneously file your Application/Motion for Preliminary Injunction. Ohio R. Civ. P. 65(B) refers to the “application for preliminary injunction which may be included in the complaint or may be made by motion.” Ohio Rule 7 requires that “an application to the court for an order shall be made by motion.” Because you will want to cite case law to support your position, including an “application for preliminary injunction” as part of the complaint is advised against; instead the application should be made by motion supported by a separate memorandum to include the case law. Although “Preliminary Injunction” is not a claim for relief to be included in the verified complaint – rather it is a remedy – it should be plainly referred to in the title of the complaint (i.e., Verified Complaint for Preliminary and Permanent Injunction and Other Relief).
The Motion and Supporting Memorandum must address the essential factors necessary for the court to balance in order to justify the extraordinary relief of a preliminary injunction. Well before the adoption of Civil Rule 65, courts considered four separate issues in evaluating a party’s right to a preliminary injunction or temporary restraining order:
(1) That the moving party has a likelihood of success on the merits; (2) That there is an immediate and certain threat of irreparable harm absent such relief (that there is no adequate remedy at law for the moving party should the relief not be afforded); (3) That the injury suffered by the parties enjoined, if any, will not outweigh the potential injury suffered by the moving party absent the relief; and (4) That the public interest will be served by maintaining the status quo between the parties. Gould v. Chesapeake & Ohio Ry. Co., 10 Ohio N.P.(n.s.) 129, 130-31, 21 Ohio Dec. 733, 735 (Franklin Cty. C.P. 1910).
The four factors listed above (referred to infra as the “Four Factors”) continue to be utilized by the courts as the appropriate standard for evaluating a party’s entitlement to injunctive relief. Rule 65 does not specifically set forth any issues or standards for the court to examine in considering whether to grant injunctive relief. However, Ohio courts applying Rule 65 continue to base evaluations of requests for injunctive relief upon a balancing of the Four Factors. Procter & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267 747 N.E.2d 268 (2000) TGR Enterprises, Inc. v. Kozhev, 167 Ohio App.3d 29, 32, 853 N.E.2d 739 (2006); Diamond Co. v. Gentry Acquisition Corp., 48 Ohio Misc. 2d 1, 2, 531 N.E.2d 777, 778-79 (Cuyahoga Cty. C.P. 1988); Dodd v. Rue, 64 Ohio Misc. 21, 27-28, 15 Ohio Op. 3d 196, 200, 411 N.E.2d 201, 206 (Hamilton Cty. C.P. 1979); Adams v. Ohio Dept. of Health, 5 Ohio Op. 3d 148, 152, 356 N.E.2d 324, 328 (Montgomery Cty. C.P. 1976).
It is very important for a court evaluating whether to grant injunctive relief to understand these Four Factors do not serve as a litmus test for awarding injunctive relief; rather, they should be balanced by the court in order to determine whether injunctive relief is justified. Frisch’s Restaurant, Inc. v. Shoney’s, Inc. 759 F.2d 1261, 1263 (6th Cir. 1985). The Four Factors “do not establish a rigid and comprehensive test for determining the appropriateness of preliminary injunctive relief.” Id. Instead, they are “factors to be balanced, not prerequisites that must be met.” Id. Accordingly, if the evidence presented shows a very strong likelihood of success on the merits, the requirement of irreparable harm may be relaxed. Similarly, an obvious and immediate irreparable injury should be prevented preliminarily even if the court considers the likelihood of success somewhat dubious. Even though these factors are “to be balanced” they must be individually addressed in the motion/memorandum as an Order Granting Preliminary Injunction must identify and address each of the factors and the proof offered relating to them.
Contemporaneously file a Motion for Expedited Discovery. When the Defendant has notice and an opportunity to be heard, your motion must proceed as an application for Preliminary Injunction as explained here. You will need to carry your burden of proof at the evidentiary hearing on the Preliminary Injunction. Promptly and urgently obtaining the essential documentary evidence helpful to your position is important. And, you can properly prepare for cross-examination with a few key depositions. When a few Ohio Counties experimented with Commercial Dockets, most commercial docket judges were amenable to shortening interrogatories and document request responses to 14 days, and allowing up to 3 depositions per side not to exceed 90 minutes per witness. Note: Ohio R. Civ. P. 33, 34 and 36 all provide for answers in a “shorter” time than 28 days “as the court may allow.”
Consider a Motion for Emergency Pretrial Conference. Many lawyers overlook the benefits of Rule 16 regarding Pretrial Procedure. Although Ohio courts are required to conduct a pretrial conference, the Rule provides that the court may schedule “one or more conferences” to address the enumerated objectives, which include: (12) “Other matters which may aid in the disposition of the action.” Filing a terse motion for emergency conference to schedule the preliminary injunction to “aid in the disposition of the action” alerts the court to the urgency of the matter and can promptly hale the parties before the court to address your first day filings.
Contact the court staff, law clerk or constable, to request an immediate appearance before the court on the first available date as soon as all papers are ready to be filed:
1. Verified Complaint 2. Motion for Preliminary Injunction with Supporting Memorandum 3. Motion for Expedited Discovery 4. Motion for Appointment of Special Process Server 5. Motion for Emergency Pretrial Conference
If the court is amenable to the Emergency Conference, then you can include a scheduling order with the initial packet the process server delivers with the summons. Finally, make bond arrangements in advance of the Preliminary Injunction hearing. Under Ohio law, a security bond is necessary in every injunction case, pursuant to Rule 65(C). Some courts have ruled that “no bond” is inappropriate and there must be at least some nominal bond. The injunction will not become effective until the bond is posted; and, in some cases the bond can be very high. You can contact your client’s corporate general insurance policy issuer as they are likely familiar with your client’s finances and can be in the position to post the security immediately.