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API Americas Inc. v. Miller

United States District Court, D. Kansas

November 6, 2017

API AMERICAS INC., Plaintiff,
v.
PAUL W. MILLER, Defendant.

          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 for Defendant

          TEMPORARY RESTRAINING ORDER

          Hon. Carlos Murguia, United States District Judge

         This 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 preliminary injunction.

         After 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:

         1. The Court has jurisdiction over the parties and the subject matter of this action.

         2. 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.

         3. 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.

         4. On 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.

         5. On 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).

         6. 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).

         7. Because API provided advance notice to Miller, the requirements of Rule 65(b) for issuing a restraining order without notice are inapplicable.

         8. 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.[1] The issuance of a restraining order is a matter for the sound discretion of the Court.[2]

         9. Miller is an individual residing in Johnson County, Kansas.

         10. API 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 Jersey.

         11. API 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 and strategies.

         12. API 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.

         13. API 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 ...

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