United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
the Court are the Application for Preliminary Injunction,
(Dkt. 1), and the Motion for Entry of Amended Order Granting
Plaintiffs' Application for Preliminary Injunction, (Dkt.
74), filed by Plaintiffs Embarcadero Technologies, Inc.
(“Embarcadero”) and Idera, Inc.
(“Idera”) (together, “Plaintiffs”).
The Court held a hearing on the application for a preliminary
injunction on October 20, 2017, and October 23, 2017. After
considering the pleadings, the briefs, the evidence
presented, and the relevant law, the Court
DENIES the application for a preliminary
11, 2017, Plaintiffs brought an action in this Court against
four defendants, alleging eight claims. (Pls.' Orig.
Compl., Dkt. 1). The claims arose from the departure of four
employees of Embarcadero,  David Frignoca
(“Frignoca”), Dustin Abney (“Abney”)
and two others, each of whom left Embarcadero and joined the
same company. That company, Redgate Ltd., is incorporated in
the United Kingdom and has a subsidiary called Redgate Inc.,
(together, “the Redgate Defendants”), which is
incorporated in California. Frignoca left his position at
Embarcadero in October 2016 and joined Redgate Ltd. by the
end of the month. Plaintiffs contend that he did so in
violation of a contract he had signed. Additionally, while
employed by Embarcadero, Frignoca uploaded various
Embarcadero documents to his personal Google Drive and
accessed them a few times after his employment with
Embarcadero ceased. Plaintiffs contend that doing so
constituted a misappropriation of trade secrets and a breach
of his fiduciary duty to the company. Finally, since three
former Embarcadero sales employees left to join Redgate after
Frignoca did, Plaintiffs claim that he improperly solicited
them in violation of his contract. Plaintiffs brought suit
against Frignoca, Abney, Redgate Ltd., and Redgate Inc.,
alleging the following claims: (1) breach of contract
(Frignoca); (2) breach of fiduciary duty (Frignoca); (3)
aiding and abetting breach of fiduciary duty (the Redgate
Defendants); (4) misappropriation of trade secrets in
violation of the Federal Defend Trade Secrets Act of 2016, 18
U.S.C. § 1836, et seq. (Frignoca and the
Redgate Defendants); (5) misappropriation of trade secrets in
violation of the Texas Uniform Trade Secrets Act, Tex. Civ.
Prac. & Rem. Code § 134A.001, et seq.
(Frignoca and the Redgate Defendants); (6) violation of the
federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030,
et seq. (Frignoca); (7) violation of the Texas
Harmful Access by Computer Act, Tex. Civ. Prac & Rem.
Code § 143.001, et seq. (Frignoca); and (8)
breach of contract (Abney). (Am. Compl., Dkt. 33,
¶¶ 32-69). Plaintiffs seek various remedies, but
relevant here is their request for a preliminary injunction.
filed a brief in support of their motion for a preliminary
injunction and a request for a hearing on June 12, 2017.
(Dkt. 14). On June 28, 2017, the Court scheduled a hearing on
the application for a preliminary injunction for July 25,
2017. (Dkt. 26). Plaintiffs requested an extension of the
hearing on July 14, 2017, (Dkt. 30), stating their preference
for a date in early September, which the Court granted by
resetting the hearing for September 6, 2017, (Dkt. 37). The
Court needed to reschedule the hearing, so the Court reset
the date for August 31, 2017, while giving the parties the
option to have the hearing on October 20, 2017, if they
preferred. (Dkt. 56). The parties agreed to the October 20
hearing date, (Dkt. 60), so the Court rescheduled the hearing
for October 20, 2017. (Dkt. 64). The hearing was held on
October 20, 2017 and continued on October 23, 2017.
relief sought by Plaintiffs has been characterized in a few
different ways. In their original complaint, Plaintiffs
requested a preliminary injunction that
a. orders Defendants to return to Plaintiffs all
confidential, proprietary and trade secret information of
Plaintiffs within their possession, custody, or control, as
permitted by 18 U.S.C. § 1836(b)(3)(A)(ii) and
applicable state law;
b. prohibits Defendants from using in any manner any
confidential, proprietary and trade secret information of
Plaintiffs, including confidential information regarding
Plaintiffs' customers and products, including to solicit,
switch and/or convert Plaintiffs' customers;
c. prohibits Defendants from soliciting any of
Plaintiffs' employees; and
d. because there is, or will be, evidence of misappropriation
and threatened misappropriation, prohibits Frignoca and Abney
from continuing to work for or provide services to Redgate in
which these individuals will be permitted to sell competing
services to the customers that they personally serviced, or
to the customers that their subordinates personally serviced,
while employed with Plaintiffs, as permitted by 18 U.S.C.
§ 1836(b)(3)(A)(i)(I) and applicable state law.
(Orig. Compl., Dkt. 1, at ¶ 80). In their brief in
support of their application for a preliminary injunction,
Plaintiffs requested that the Court issue a preliminary
prevent Defendants from: (a) using Plaintiffs'
confidential information to solicit Plaintiffs' customers
and leads for the purpose of selling products in competition
with Plaintiffs; (b) otherwise disclosing or commercially
using Plaintiffs' confidential information; (c)
soliciting Plaintiffs' existing employees to terminate
their employment with Plaintiffs, and (d) allowing Frignoca
and Abney to engage in any business that competes with
Plaintiffs in the United States.
(Mem. Supp. Appl. Prelim. Inj., Dkt. 14, at 2). Following the
hearing, Plaintiffs submitted a request for a much broader
injunction, which would include an absolute prohibition on
Frignoca and Abney working for Redgate for a year and would
force two employees of Redgate who are not parties to this
suit to stop working at Redgate for three months and ten
days. (Pls.' Mot. Entry Am. Order, Dkt. 74).
Post-Hearing Request for Amended Scope of Relief
days after the conclusion of the hearing, on October 26,
2017, Plaintiffs submitted a much more detailed request for
injunctive relief tailored to each defendant. (Pls.' Mot.
Entry Am. Order, Dkt. 74). In their request for entry of an
amended order, Plaintiffs explain that they “have
decided to change the scope of the requested injunctive
relief.” (Id. at 1). The scope of relief
requested is significantly broader than that outlined in
Plaintiffs' application for a preliminary injunction and
brief in support of that application. For example, in their
briefs, Plaintiffs indicated that they sought injunctions
preventing Frignoca and Abney from working for Redgate only
on a nationwide basis. (Pls.' Reply Abney Resp. Appl.
Prelim. Inj., Dkt. 27, at 4 (“A nation-wide restriction
on Abney's competition with Plaintiffs is
warranted.”)); Pls.' Reply Frignoca Resp. Appl.
Prelim. Inj., Dkt. 29, at 4 (“[A] nation-wide exclusion
is presently being sought by Plaintiffs.”)). The newly
proposed injunction seeks to prevent Frignoca and Abney from
working for Redgate on a global basis. (Pls.' Mot. Entry
Am. Order, Dkt. 74-1, at 5, 7). Plaintiffs also request in
the proposed order, for the first time, relief against two
former Embarcadero employees, Chad Tewis and Adam Altman, who
are not parties to this suit. (Id. at 8) (requesting
that the Court enter an order requiring that Redgate
“place Chad Tewis and Adam Altman on leave with pay or
leave without pay (at Redgate's election) until three
months and 10 days from the date the Court signs this
Order”). The rationale is the alleged violation by
Frignoca of a non-solicitation agreement, but Plaintiffs have
pointed to no case law supporting the position that the
appropriate remedy for the violation of a non-solicitation
agreement is to prohibit the solicited employees (not parties
to the non-solicitation agreement) from working. More to the
point, Plaintiffs gave no notice of their desire to expand
the scope of their requested relief prior to or during the
of its timing, three days after the conclusion of the hearing
and five months after the original request for a preliminary
injunction, the Court declines to consider the amended
request for relief to the extent it differs from
Plaintiffs' previous characterizations of the scope of
the injunction desired. Plaintiffs had plenty of
opportunities to outline the contours of the injunctive
relief sought prior to the hearing. To consider a new request
for a broader injunction following the hearing would
prejudice Defendants, who did not have an opportunity either
before or during the hearing to respond to the expanded scope
of relief requested after the hearing. Federal courts may
issue preliminary injunctions “only on notice to the
adverse party.” Fed.R.Civ.P. 65(a)(1). The notice
requirement, “with few exceptions, implies ‘a
hearing in which the defendant is given a fair opportunity to
oppose the application and to prepare for such
opposition.'” Williams v. McKeithen, 939
F.2d 1100, 1105 (5th Cir. 1991) (quoting Granny Goose
Foods, Inc. v. Brotherhood of Teamsters & Auto Truck
Drivers Local No. 70 of Alameda, 415 U.S. 423, 432 n.7
(1974)). Here, the Defendants had ample notice that
Plaintiffs were seeking a preliminary injunction, but they
did not have notice of the specific relief requested on
October 26, three days after the conclusion of the hearing.
Therefore, the Court declines to consider this post-hearing
request seeking a broader injunction.