United States District Court, D. Kansas
LATHROP GAGE LLP, Jennifer M. Hannah, KS #19111, Mark A.
Samsel, KS #24551 Attorneys for Plaintiff
APPROVED AS TO FORM BY: Curtis N. Holmes, KS #23434 Attorneys
TEMPORARY RESTRAINING ORDER
Carlos Murguia, United States District Judge
matter comes before the Court on the Application for
Temporary Restraining Order (Doc. 5)
(“Application”) filed by Plaintiff, API Americas
Inc. f/k/a API Universal Foils Inc. f/k/a API Foils, Inc.
(“API”). API seeks to enjoin and restrain
Defendant, Paul W. Miller (“Miller”) from using
(and further requiring him to return) the trade secrets and
other confidential and proprietary information that he
allegedly took from API; cease and desist from contacting and
soliciting API's customers, most notably Hallmark Cards
Incorporated (“Hallmark”); and cease and desist
any employment or other competition with API, most notably
his alleged employment with and work for UNIVACCO Foils
Corporation (“Univacco”) (allegedly a direct
competitor of API); unless and until specifically permitted
to do otherwise by further Order of this Court after due
consideration and rulings on API's request for
due consideration of the Application (Doc. 5) and Verified
Complaint (Doc. 1) (“Complaint”), and being duly
advised in the premises, the Court
grants Plaintiff's Application for
Temporary Restraining Order [Doc. 5] and finds,
concludes, and orders as follows:
Court has jurisdiction over the parties and the subject
matter of this action.
Fed.R.Civ.P. 65 (“Rule 65”), 18 U.S.C. §
1836(b), K.S.A. 60-3321, and 18 U.S.C. § 1030(g) provide
for a restraining order with or without notice.
Prior to entry of this Temporary Restraining Order, API, on
October 24, 2017, provided advance notice to Miller, via
email to his personal account, of API's intent to seek
the instant Temporary Restraining Order. In particular, API
advised Miller that “we will be asking the Court to
immediately enter a Temporary Restraining Order, requesting
the injunctive relief set forth in our Verified Complaint,
” that “time is of the essence, ” and that
“[i]f we do not hear from you promptly, we will assume
that you have no objection to our above request and will look
for your Answer to our Verified Complaint in due
course.” API also provided a copy of the Complaint via
the same manner.
October 25, 2017, this Court entered an Order requiring, in
part, that “Defendant Paul W. Miller must file any
Response on or before close of business (5:00 PM) on
10/30/2017.” Doc. 6. Later that same day, API filed a
Notice of Court Order and Hearing on Plaintiff's
Application for Temporary Restraining Order (Doc. 7), which
specifically states, in part, that “Defendant Paul W.
Miller must file any response to the Application [for
Temporary Restraining Order (Doc. 5)] on or before 5:00 P.M.
on October 30, 2017.” API's counsel emailed a copy
of this Notice (Doc. 7) to Miller on October 25, 2017.
October 26, 2017, Miller was personally served with,
inter alia, a copy of the Summons, Verified
Complaint, Application for Temporary Restraining Order, and
Notice (with exhibits thereto).
Miller did not file any response to the Application for
Temporary Restraining Order by October 30, 2017 as required
by this Court's Order (Doc. 6).
Because API provided advance notice to Miller, the
requirements of Rule 65(b) for issuing a restraining order
without notice are inapplicable.
Thus, Rule 65, 18 U.S.C. § 1836(b), K.S.A. 60-3321, and
18 U.S.C. § 1030(g), individually and collectively,
permit this Court to issue a temporary restraining order
without bond to preserve the status quo until further Order
of the Court. The issuance of a restraining order is a
matter for the sound discretion of the Court.
Miller is an individual residing in Johnson County, Kansas.
is a corporation organized, existing, and in good standing
under the laws of the State of Delaware. API is registered
and in good standing to do business in both Kansas and New
is in the business of designing, manufacturing, and
distributing hot stamping foils and other products. API
asserts that its business depends on its unique technology,
manufacturing processes, marketing strategies, customer and
prospective customer relationships, and its business models
asserts that Miller started working for API in June 2007 as a
Customer Service Representative, and that over the years, was
promoted to Customer Service Manager and then Technical
Service and Account Manager. API further states that in his
role as a Technical Service and Account Manager, Miller's
major job duties and responsibilities included, without
limitation, supporting API's customers, sales, and CSR
groups with technical knowledge on how foil is applied on all
types of application equipment; supporting the sale of
API's laminates; managing the outflow and follow up of
trial samples to customers; evaluating and reviewing
complaint material and forwarding to the technical department
for evaluation and any necessary follow up; assisting in
API's activities at all customer trade shows; assisting
manufacturing in product quality control and quality
assurance of products; ensuring the product recommended would
perform as expected and provide the know-how so as to consult
with the customer; and managing the outflow of trial samples
to customers. In particular, API asserts that it entrusted
Miller as its Account Manager for Hallmark effective the
Third Quarter of 2016.
states that on July 6, 2011, Miller and API entered into a
written Employee Confidentiality, Non-Solicitation and
Non-Competition Agreement (“Agreement”), which is
attached to both the Complaint and the Application as Exhibit
1, and which provides in part that Miller and API understand
and agree that:
[API] is in the business of designing, manufacturing and
distributing hot stamping foils and other products, that
[API's] business depends on its unique technology,
manufacturing processes, marketing strategies, customer and
prospective customer relationships, and ...