Robson Forensic, Inc. v. Shinsky

• Decision Date: 22 April 2022
• Docket Number: 5:22-cv-1309
• Parties: ROBSON FORENSIC, INC., Plaintiff, v. ANTHONY J. SHINSKY and EXIGENT GLOBAL, INC., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

ROBSON FORENSIC, INC., Plaintiff, v. ANTHONY J. SHINSKY and EXIGENT GLOBAL, INC., Defendants.

No. 5:22-cv-1309

United States District Court, E.D. Pennsylvania

April 22, 2022

OPINION

MOTION FOR TEMPORARY RESTRAINING ORDER, ECF NO. 4 - DENIED MOTION FOR EXPEDITED DISCOVERY, ECF NO. 5 - DENIED

JOSEPH F. LEESON, JR., UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

This matter involves claims by Plaintiff Robson Forensic, Inc. (RFI) against its former employee, Defendant Anthony Shinsky and his current employer, Defendant Exigent Global, Inc. RFI asserts that Shinsky breached the terms of a noncompete agreement entered into as part of Shinsky's employment with RFI. In addition, RFI alleges that both Shinsky and Exigent engaged in the misappropriation of RFI's trade secrets in violation of the Defend Trade Secrets Act (DTSA) and Pennsylvania Uniform Trade Secrets Act (PUTSA).

Along with its Complaint, RFI filed a Motion for Temporary Restraining Order (TRO) and a Motion for Expedited Discovery. Through its TRO motion, RFI seeks to enjoin Shinsky from violating the terms of the noncompete agreement and enjoin Exigent from employing Shinsky in light of that agreement.

Following a review of RFI's motions, this Court denies both. This Court concludes that RFI has failed to establish eligibility for either a TRO or expedited discovery.

II. FINDINGS OF FACT

The findings of fact as set forth here consist of, in large part, allegations from RFI's verified Complaint that are not disputed in Defendants' response to the present motion for a TRO. See Compl., ECF No. 1; Resp. TRO, ECF No. 21. RFI is a forensic firm that provides clients with both expert investigative services as well as testimonial services. See Compl. ¶ 30. Shinsky, an architect by trade, was hired by RFI in 2014. See id. ¶¶ 4, 35. At the time Shinsky was hired, RFI's standard employment agreement did not include a noncompete provision. See id. ¶¶ 9, 59. On February 11, 2020, Shinsky signed an addendum to the standard employment agreement, which contained a noncompete provision. See id. ¶ 59.

In relevant part, the addendum provides that Shinsky

shall not, directly or indirectly, whether as owner, partner, shareholder, director, manager, consultant, agent, employee, co-venturer or otherwise, in any jurisdiction where the Company is registered to do business, engage or otherwise participate in any business that is, in whole or in part, engaged, or preparing to engage, in the Business.” The term “Business” is defined in the Addendum as “as of the Last Date of Employment, the business of the Company as previously or currently conducted, or as planned to be conducted in the future, including, without limitation; forensic expert investigations, reports or testimony; expert witness services; expert consulting and researching; laboratory services; business processes; directly or indirectly developing or marketing services related to the foregoing; and serving as an expert, expert witness, expert consultant, forensic expert, forensic investigator, or related role, for any attorney, law firm, insurance company, independent adjuster, public adjuster, claims adjuster, party/parties, or individual(s) involved in litigation, pre-litigation, insurance investigations, insurance disputes, insurance claims, or other related matters, or managing, developing, or marketing services related to the foregoing

See id. ¶ 62.

On March 4, 2022, Shinsky resigned from his position at RFI. See id. ¶ 69. Based on the terms of the addendum, his final effective date of employment was April 4, 2022. See id. ¶ 13. On April 4, 2022, Shinsky advised RFI that he had taken a position with Exigent. See id. ¶ 15.

According to its website, Exigent provides “comprehensive legal outsourcing services.” See id. ¶ 5.

On April 5, 2022, RFI filed suit in this Court, alleging claims of (1) breach of contract, (2) misappropriation of trade secrets under the DTSA and PUTSA, and (3) tortious interference with a contract. See id. Along with its Complaint, RFI filed a Motion for a TRO and a Motion for Expedited Discovery. See Mot. TRO, ECF No. 4; Mot. Ex. Disc., ECF No. 5. Following an Order of this Court, see ECF No. 7, Defendants filed responses to both of the pending motions. See Resp. TRO; Resp. Ex. Disc., ECF No. 20. Thereafter, RFI filed replies in support of its two motions, and Defendants filed a sur-reply. See Reply TRO, ECF No. 24; Reply Ex. Disc., ECF No. 25; Sur-Reply TRO, ECF No. 32. On April 13, 2022, this Court held a telephone conference during which the parties presented oral argument on the pending motions.

III. LEGAL STANDARDS

A. Motion for a Temporary Restraining Order (TRO) - Review of Applicable Law

“The standard for granting a temporary restraining order under Federal Rule of Civil Procedure 65 is the same as that for issuing a preliminary injunction.” See Pileggi v. Aichele, 843 F.Supp.2d 584, 592 (E.D. Pa. 2012) (citing Bieros v. Nicola, 857 F.Supp. 445, 446 (E.D. Pa. 1994)). “A party seeking a preliminary injunction must show: (1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004); Bieros v. Nicola, 857 F.Supp. 445, 446 (E.D. Pa. 1994).

“In order to prove irreparable harm, the moving party must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial.” Bioquell, Inc. v. Feinstein, No. 10-2205, 2011 U.S. Dist. LEXIS 16081, at *15 (E.D. Pa. Feb. 14, 2011) (internal quotations omitted). “Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough.” Sampson v. Murrary, 415 U.S. 61, 90 (1964) (quoting Va. Petrol. Jobbers Assn. v. FPC, 259 F.3d 921, 925 (D.C. Cir. 1958)); see also Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989) (finding that the plaintiff, who argued that without a preliminary injunction its business will “be completely destroyed, its employees and jobs will be lost and its goodwill and business reputation will be ruined, ” did not show irreparable harm where facts did not support the harm claimed). Additionally, “the risk of irreparable harm must not be speculative.” Adams v. Freedom Forge Corp., 204 F.3d 475, 488 (3d Cir. 2000). Rather, an assertion of irreparable harm must be based on concrete evidence and cannot be sustained “on the basis of ‘bald and conclusory' statements.” Cornette v. Graver, No. 3:19-cv-219, 2020 WL 4059589, at *24 (W.D. Pa. July 20, 2020) (citing Brown v. Beard, No. 8-cv-26, 2008 WL 11344639, at *2 (W.D. Pa. Mar. 5, 2008)); see also Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992) (stating the “moving party must make a ‘clear showing of immediate irreparable harm'” (quoting Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989) (emphasis added by Campbell Soup court))).

“[A] failure to show a likelihood of success or a failure to demonstrate irreparable injury must necessarily result in the denial of a preliminary injunction.” See In re Arthur Treacher's Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982).

B. Motion for Expedited Discovery - Review of Applicable Law

The Federal Rules of Civil Procedure contemplate that discovery will begin after the parties' Rule 26(f) meeting and offer no guidance on when it is appropriate for courts to authorize expedited or early discovery. See Fed.R.Civ.P. 26(d)(1). The Third Circuit Court of Appeals has not announced a standard, but district courts in the Third Circuit have applied two standards for evaluating such requests: (1) a more stringent injunctive relief standard, and (2) a “good cause” standard. See Bath Auth., LLC v. Anzzi LLC, No. 18-00834, 2018 U.S. Dist. LEXIS 179754, at *22 (E.D. Pa. Oct. 19, 2018). “The prevailing approach in this Circuit is to apply the ‘good cause' or reasonableness standard to resolve motions for expedited discovery.” See id. at *22-23. This standard “requires the party seeking discovery to show ‘good cause' for its motion, such that the request is ‘reasonable' in light of the relevant circumstances.” Kone Corp. v. Thyssenkrupp USA, Inc., No. 11-465-LPS-CJB, 2011 U.S. Dist. LEXIS 109518, at *10 (D. Del. Sept. 26, 2011). The court should consider: “(1) the timing and context of the discovery requests, including whether a preliminary injunction hearing has been scheduled; (2) the scope and purpose of the requests; and (3) the nature of the burden to the respondent.” See id. at *11. “Where the requests are overly broad and extend beyond the needs of the preliminary injunction, leave should be denied.” Chubb INA Holdings, Inc. v. Chang, No. 16-2354 (FLW)(DEA), 2016 U.S. Dist. LEXIS 82225, at *12 (D.N.J. June 24, 2016).

C. Standards of Law Applicable to the Individual Claims

1. Claims under The Defend Trade Secrets Act (DTSA) & Pennsylvania Uniform Trade Secrets Act (PUTSA) - Review of Applicable Law

The DTSA provides the owner of a trade secret a remedy when that trade secret is misappropriated. See 18 U.S.C. 1836(b)(1). In order to make out a claim under the DTSA, a plaintiff must show (1) that they own a trade secret and (2) that the defendant misappropriated the trade secret. See Teva Pharmas. USA, Inc. v. Sandhu, 291 F.Supp.3d 659, 674 (E.D. Pa. 2018). Similarly, the PUTSA provides injunctive relief for “actual or threatened misappropriation” of trade secrets. See 12 Pa. Stat. § 5303.

Both the DTSA and PUTSA define “trade secret” the same way, providing four factors for putative trade secrets to be evaluated against:

(1) The owner

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