Full Opinion (html_with_citations)

  RCR Enters., LLC v. McCall,
2014 NCBC 68
.

  STATE OF NORTH CAROLINA                           IN THE GENERAL COURT OF JUSTICE
                                                         SUPERIOR COURT DIVISION
  DAVIDSON COUNTY                                               14 CVS 3342

  RCR ENTERPRISES, LLC,

                           Plaintiff,

  v.
                                                                ORDER AND OPINION
  MATTHEW McCALL,

                           Defendant.


    {1}    THIS MATTER is before the Court upon Plaintiff RCR Enterprises, LLC’s
(“Plaintiff”) Motion for Temporary Restraining Order (the “Motion for TRO”)1 in the
above-captioned case.
       Womble Carlyle Sandridge & Rice, PLLC by John F. Morrow, Jr. and David
       Boaz for Plaintiff.

       Poyner Spruill LLP by Lee A. Spinks and Joshua B. Durham for Defendant.

Bledsoe, Judge.
    {2}    Having considered the Motion, the briefs, the affidavits,2 and other
documents filed in support of and in opposition to the Motion, and the arguments of
counsel at the hearing held on December 16, 2014, the Court finds and concludes as
follows:




1 Plaintiff filed a Motion for Preliminary Injunction contemporaneously with its Motion for TRO.      At
Plaintiff’s request, the Court will consider only the Motion for TRO at this time.

2 Plaintiff submitted five affidavits in support of its Motion for TRO, including the affidavits of

Richard Childress, owner of Plaintiff; Dr. Eric Warren, Plaintiff’s Director of Competition; and Luke
Lambert, the crew chief of Plaintiff’s #31 NASCAR Sprint Cup Series team. Defendant also
submitted five affidavits in opposition to Plaintiff’s Motion for TRO, including the affidavits of
Defendant; Max Jones, Managing Director for Chip Ganassi Racing; Harold Holly, Competition
Director of GMS Racing; and Jeffrey Dickerson, managing member of Spire.
                                              I.
                                     PROCEDURAL HISTORY
   {3}     Plaintiff   filed   its    Complaint     against   Defendant   Matthew   McCall
(“Defendant”) in Davidson County on November 26, 2014, alleging claims for breach
of contract and misappropriation of trade secrets.
   {4}     Plaintiff subsequently filed its Motion for TRO on December 3, 2014.
   {5}     Defendant sought designation to the North Carolina Business Court on
December 4, 2014. This case was designated and assigned to this Court that same
day.
   {6}     The Davidson County Superior Court scheduled Plaintiff’s Motion for TRO
for hearing on December 8, 2014, but later declined to hear the Motion after this
case was designated to the Business Court.
   {7}     On December 16, 2014, the Court held a hearing on the Motion for TRO.
Both parties were represented by counsel at the hearing.
                                              II.
                                     FACTUAL BACKGROUND
   {8}     Plaintiff is a stock car racing organization that competes in professional
events, including those managed by NASCAR. (Compl. ¶ 6.)
   {9}     In its Complaint, Plaintiff describes its alleged confidential, trade secret,
and proprietary information as follows:
         [Plaintiff] has developed and compiled confidential proprietary, and
         trade secret information relating to the design, development,
         fabrication, assembly, simulation, and testing of high performance
         stock car engines, bodies, chassis, tires, and frames. [Plaintiff’s]
         confidential proprietary and trade secret information includes without
         limitation [Plaintiff’s] race simulation technology and methods of using
         same; race strategy software and methods of using same; real-time
         race data analysis capabilities; gear and axle lubrication products and
         methods for using same; vehicle dynamics simulation software and
         methods of using same; compilations of aerodynamic and body shape
         data, research and techniques; underbody aerodynamic devices;
         [Plaintiff’s] at-track wireless network and its operational capabilities;
         sound analysis techniques and methods of using same; throttle body
         designs; and race car setups.
(Id. ¶ 8.)
   {10} Defendant was employed by Plaintiff from December 13, 2010 until
November 16, 2014, first as a race engineer on one of Plaintiff’s NASCAR Camping
World Truck Series teams and later as a race engineer on Plaintiff’s #31 NASCAR
Sprint Cup Series team (the “#31 Team”). (Id. ¶¶ 13–14.)
   {11} On November 30, 2012, in consideration of Defendant’s promotion to the
#31 Team, the parties executed an employment contract (the “Employment
Contract”), which provided for an employment term through and including
December 31, 2015, and stated, in pertinent part, as follows:
       [i]n the event [Defendant] resigns employment during the term of this
       contract, [Defendant] shall, for a period of 12 months following his last
       day of employment with [Plaintiff], not be employed, or serve as
       consultant or independent contractor, in any capacity identical or
       similar to that in which he participated while employed by [Plaintiff],
       by or for a “Competitor” of [Plaintiff] where such Competitor
       participates or intends to participate in the NASCAR Sprint Cup
       Circuit during that 12-month period. “Competitor” shall be defined as
       any person or entity who shall prepare racing cars for entry in races in
       which NASCAR Sprint Cup points are awarded, as well as special
       events such as the Budweiser Shootout, or Sprint Open races;
       provided, however, that “Competitor” shall not include any person or
       entity which shall prepare racing vehicles only for ARCA, Nationwide,
       or any racing series other than NASCAR Sprint Cup and the special
       events described above, and which does not compete in the NASCAR
       Sprint Cup series or other defined special events directly or through a
       parent, subsidiary, affiliate, or other business combination.

(Id. ¶ 35, Ex. A.)    The Employment Contract included a non-exclusive list of
Competitors. (Id., Ex. A.)
   {12} The Employment Contract also contained two clauses requiring that
Defendant “reveal or disclose nothing of the operation, methods, techniques,
technology, or policies of Plaintiff to any third person . . .” and preventing Defendant
from revealing, disclosing, using, or otherwise misappropriating Plaintiff’s trade
secret and/or proprietary information. (Id. ¶ 33, Ex. A.)
   {13} The Employment Contract further provided that Defendant’s salary for the
2013 season would be $115,000.00 and that any pay increases for the 2014 and 2015
seasons would be subject to negotiation.
   {14} Defendant began performing his duties under the Employment Contract
on November 30, 2012.
   {15} On several occasions during the 2014 racing season, Defendant indicated
to Plaintiff that he wished to work as a crew chief for a Sprint Cup team. (Id. ¶ 44.)
   {16} Plaintiff informed Defendant in October 2014 that Plaintiff planned to
promote Defendant to crew chief for one of Plaintiff’s NASCAR Nationwide Series
teams for the 2015 season. (Id.)3
   {17} Defendant, however, advised Plaintiff on November 3, 2014 that he
intended to terminate his employment with Plaintiff at the end of the 2014 racing
season and seek employment with another NASCAR team. (Id. ¶ 45.)
   {18} Defendant accordingly tendered his resignation letter to Plaintiff on
November 7, 2014, stating that “he intended to resign from [Plaintiff] upon the
conclusion of the final NASCAR Sprint Cup Series race of the season on November
16, 2014.”     (Id. ¶ 47, Ex. B.)       Defendant honored his commitment to Plaintiff
through the final race of the season and resigned from Plaintiff’s employment on
November 16, 2014.
   {19} Two days later, on November 18, 2014, Defendant informed Plaintiff that
he had accepted a position as crew chief with Chip Ganassi Racing with Felix
Sabates, Inc.’s (“Ganassi”) #1 NASCAR Sprint Cup Series team. (Id. ¶ 39.) That
same day, Ganassi issued a press release announcing that it had hired Defendant
as crew chief of Ganassi’s #1 team. (Id. ¶ 41.) Ganassi is a direct competitor of
Plaintiff in the NASCAR Sprint Cup Series and was listed as a “Competitor” in
Defendant’s Employment Contract. (Id. ¶ 40, Ex. A.)


3 While the Sprint Cup Series is NASCAR’s “most prestigious” series and is “viewed as the major

league level” of NASCAR racing, the Nationwide Series is “the next most prestigious” series and is
“viewed, to steal a baseball term, as the Triple-A of NASCAR.” See NASCAR’s Different Series,
NASCAR (Dec. 18, 2014 11:56 AM), http://www.nascar.com/en_us/sprint-cup-series/nascar-
nation/nascar-edu/nascar-basic/nascar-national-series-home-tracks.html.
   {20} Plaintiff subsequently filed this action, alleging claims against Defendant
for breach of contract and misappropriation of trade secrets. Plaintiff now seeks a
temporary restraining order enjoining and restraining Defendant from working for
Ganassi or any other Competitor and from disclosing or otherwise misappropriating
Plaintiff’s confidential, trade secret, and/or proprietary information.
                                           III.
                                   LEGAL STANDARD
   {21} The purpose of an injunction “is ordinarily to preserve the status quo . . .
[and i]ts issuance is a matter of discretion to be exercised by the hearing judge after
a careful balancing of the equities.” A.E.P. Indus., Inc. v. McClure,
308 N.C. 393, 400
,
302 S.E.2d 754, 759
 (1983) (quoting State v. School,
299 N.C. 351
, 357–58,
261 S.E.2d 908, 913
 (1980)). Moreover, a temporary restraining order is a “drastic”
procedure that “operates within an emergency context which recognizes the need for
swift action . . . .” State ex rel. Gilchrist v. Hurley,
48 N.C. App. 433, 448
,
269 S.E.2d 646, 655
 (1980); see also Leonard E. Warner, Inc. v. Nissan Motor Corp.,
66 N.C. App. 73, 76
,
311 S.E.2d 1, 3
 (1984) (observing that a temporary restraining
order has been called an “extraordinary privilege”).
   {22} Our courts have made clear that immediate injunctive relief should only be
issued:
      (1) if [Plaintiff] is able to show likelihood of success on the merits of
      [its] case and (2) [Plaintiff] is likely to sustain irreparable loss unless
      the injunction is issued, or if, in the opinion of the Court, issuance is
      necessary for the protection of [Plaintiff’s] rights during the course of
      litigation.
A.E.P. Indus.,
308 N.C. at 401
, 302 S.E.2d at 759–60 (citations omitted) (emphasis
in original); see, e.g., 2 Wilson on North Carolina Civil Procedure, § 65-3 (explaining
that a plaintiff’s likelihood of success on the merits of his claims is a factor to be
considered by the court in ruling on a motion for a temporary restraining order).
   {23} Moreover, “[a] court of equity must weigh all relevant facts before resorting
to the extraordinary remedy of an injunction.” Travenol Laboratories, Inc. v.
Turner,
30 N.C. App. 686, 694
,
228 S.E.2d 478, 484
 (1976). A trial court generally
“should engage in a balancing process, weighing potential harm to the plaintiff if
the injunction is not issued against the potential harm to the defendant if injunctive
relief is granted . . . .” Kaplan v. Prolife Action League of Greensboro,
111 N.C. App. 1, 16
,
431 S.E.2d 828, 835
 (1993) (citation and quotation omitted), overruled on
other grounds by Sharpe v. Worland,
351 N.C. 159
,
522 S.E.2d 577
 (1999).
                                                  IV.
                                             ANALYSIS
    Breach of Non-Compete Clause
    {24} Plaintiff argues that it is entitled to a temporary restraining order (i)
based on Defendant’s alleged violation of the noncompetition agreement by working
for Ganassi in a position “identical or similar” to the position Defendant held with
Plaintiff and (ii) because “it is inevitable that [Defendant] will use or disclose
[Plaintiff’s] confidential, proprietary, and trade secret information as part of his job
responsibilities.” (Pl.’s Br. Supp. Mot., p. 3.)4
    {25} “To be enforceable a covenant not to compete must be (1) in writing; (2)
reasonable as to time and territory; (3) made a part of the employment contract; (4)
based on valuable consideration; and (5) designed to protect a legitimate business
interest of the employer.” Hartman v. W.H. Odell & Assocs.,
117 N.C. App. 307, 311
,
450 S.E.2d 912, 916
 (1994).
    {26} Moreover, “[c]ovenants not to compete between an employer and employee
are not viewed favorably in modern law. To be valid, the restrictions on the
employee’s future employability by others must be no wider in scope than is
necessary to protect the business of the employer. If a non-compete covenant is too
broad to be a reasonable protection to the employer’s business it will not be
enforced. The courts will not rewrite a contract if it is too broad but will simply not

4 Plaintiff’s breach of contract claim is based on Plaintiff’s contentions that (i) Defendant failed to

honor the employment term of the Employment Contract, (ii) Defendant has used or disclosed
Plaintiff’s confidential, proprietary and trade secret information for the benefit of himself and
Ganassi in violation of the confidentiality provision of the Employment Contract, and (iii) Defendant
accepted a position with Ganassi that is identical or similar to the positions he had with [Plaintiff] in
violation of the noncompetition agreement in the Employment Contract. (Compl. ¶ 64.) Plaintiff’s
misappropriation of trade secrets claim is premised on Defendant’s alleged violation of N.C.G.S. § 66-
152 et seq. (Id. ¶ 68–73.)
enforce it.” VisionAIR, Inc. v. James,
167 N.C. App. 504, 508
,
606 S.E.2d 359, 362
(2004).
    {27} Defendant        contends      that    Plaintiff’s   claim     for   violation     of   the
noncompetition provision is not likely to succeed because the non-compete is facially
invalid, and thus unenforceable, for three principal reasons: (i) Plaintiff cannot
show a legitimate protectable interest, (ii) the scope of the restricted activities is
overbroad, and (iii) the agreement is impermissibly vague and ambiguous.
Defendant further contends that even if the non-compete is enforceable, Defendant
has not violated its terms because his crew chief position at Ganassi is not “identical
or similar to that which he participated while employed by [Plaintiff].” (Def.’s Resp.
Br. Pl.’s Mot., p. 7–11.)
    {28} The Court declines to address Defendant’s arguments concerning the
enforceability of the non-compete because the Court concludes that, assuming
without deciding that the non-compete is enforceable as written and further
assuming that the non-compete should properly be read as Plaintiff contends,5
Plaintiff has nonetheless failed to show a likelihood of success on its claim that
Defendant has breached the non-compete by accepting the crew chief position with
Ganassi.
    {29} Plaintiff points to the following evidence as principal support for its claim
that Defendant’s work as a race engineer for Plaintiff is “identical or similar to” the
work he is performing or will perform as a crew chief at Ganassi: (i) “while at
[Plaintiff], [Defendant] routinely performed the tasks of the crew chief (and
complained about doing so),” (ii) Defendant “carried out the functions and duties of
the crew chief at practices or tests when the crew chief was absent or otherwise
unavailable,” (iii) Defendant “formally served as the crew chief for [Plaintiff’s] #31
Sprint Cup Series team during the 2013 Brickyard 400 race at Indianapolis Motor
Speedway,” (iv) Defendant worked closely with, met regularly with, shared


5 At the hearing, Plaintiff’s counsel argued that the language of the non-compete should be read to
preclude Defendant from working for Ganassi in a position involving tasks that he “routinely” or
“regularly” participated in while he was employed with Plaintiff.
information with, and routinely traveled with Plaintiff’s crew chief, (v) “crew chief
and race engineers function as a single unit that is responsible for preparation of
races and maximizing car performance at those races,” and (vi) Plaintiff sought to
promote Defendant to crew chief of a Sprint Cup Series team prior to his
resignation. (Pl.’s Br. Supp. Mot., p. 18–19.)
   {30} Defendant’s evidence in response, however, tends to show that (i)
Defendant occasionally participated in activities outside the scope of a race engineer
to help the #31 team but did not regularly perform the duties of crew chief, (ii)
Defendant only served as crew chief at one practice session – at Daytona in 2013
when the #31 car ran only 10 laps – and for only one testing session – at Homestead
when the crew chief was not available, (iii) Defendant formally served as crew chief
for one race – the Brickyard 400 – but did so only under the direction and control of
the crew chief who was suffering from an eye injury and who communicated all
critical race decisions from a trailer where he was watching the race, (iv) many
members of the race team, including the car chief, race engineers and others, had
regular and sustained engagement with the crew chief on a daily basis, (v)
Plaintiff’s purported promotion of Defendant to crew chief of a Sprint Cup Series
team was after Defendant announced his resignation from Plaintiff and Defendant
did not assume the position, and (vi) as a crew chief at Ganassi, unlike Defendant’s
“participation” while he was employed with Plaintiff, Defendant has (a) significant
supervisory responsibility – overseeing twenty personnel at each race venue and
fifty or more personnel at the race shops, (b) important public responsibilities–
serving as the face of the team with sponsors, the media and the public at large, (c)
substantial decision-making responsibility – including the authority to make all
race-related decisions and the burden of discipline by NASCAR for rules infractions
by the team, (d) significant leadership responsibilities – including serving as the
leader of the team with responsibility for assuring the team’s competitive success in
NASCAR races, and (e) Defendant will be paid a salary as a crew chief at Ganassi
three times the amount of compensation he received from Plaintiff, an indicator
that Defendant will have a role at Ganassi that is fundamentally different from the
role that he held with Plaintiff.
   {31} After considering the evidence presented by the parties, the Court
concludes that Plaintiff has not shown, at this time, a likelihood of success on its
claim that by accepting a crew chief position with Ganassi, Defendant has become
employed in a “capacity identical or similar to that in which he participated while
employed by [Plaintiff]” and therefore has breached the Employment Contract.
   Breach of Confidentiality Provision
   {32} Plaintiff has not presented evidence at this time that Defendant has
disclosed   Plaintiff’s    confidential   information   or   otherwise   breached   the
confidentiality provision contained in the Employment Contract, and therefore, the
Court concludes that Plaintiff is not entitled to a temporary restraining order on
this basis. Indeed, the Court of Appeals’ conclusion in Analog Devices, Inc. v.
Michalski,
157 N.C. App. 462, 471
,
579 S.E.2d 449, 455
 (2003), applies equally on
the current record here:
   [Defendants] have signed agreements not to divulge confidential information
   belonging to [plaintiff], [Defendants’ new employer] has instructed them not
   to do so, and there is no evidence that any party to this litigation intends to
   induce them to breach their agreement. An injunction [will not] be issued to
   restrain one from doing that which he is not attempting to do.
(citations and quotations omitted).
   Misappropriation of Trade Secrets
   {33} The North Carolina Trade Secrets Misappropriation Act (“TSPA”)
prohibits “the acquisition, disclosure, or use of a trade secret of another without
express or implied authority or consent, unless such trade secret was arrived at by
independent development, reverse engineering, or was obtained from another
person with a right to disclose the trade secret.” N.C.G.S. § 66-152(1) (2014). A
trade secret is
      business or technical information, including but not limited to a
      formula, pattern, program, device, compilation of information, method,
      technique, or process that
              a. [d]erives independent actual or potential commercial
                 value from not being generally known or readily
                 ascertainable through independent development or
                 reverse engineering by persons who can obtain
                 economic value from its disclosure or use; and

              b. [i]s the subject of efforts that are reasonable under the
                 circumstances to maintain its secrecy.

N.C.G.S. § 66-152(3).
   {34}   “[A]ctual or threatened misappropriation of a trade secret may be
preliminarily enjoined during the pendency of the action and shall be permanently
enjoined upon finding misappropriation . . . .” N.C.G.S. § 66-154(a) (2014). Plaintiff
may establish actual or threatened misappropriation by introduction of “substantial
evidence” that Defendant “[k]nows or should have known of the trade secret; and
[h]as had a specific opportunity to acquire it for disclosure or use or has acquired,
disclosed, or used it without” Plaintiff’s express or implied consent. N.C.G.S. § 66-
155 (2014).
   {35} Before the Court may grant Plaintiff relief, Plaintiff “must identify a trade
secret with sufficient particularity so as to enable [Defendant] to delineate that
which he is accused of misappropriating and [the Court] to determine whether
misappropriation has or is threatened to occur.” Analog,
157 N.C. App. at 468
,
579 S.E.2d at 453
 (citations omitted); Unimin Corp. v. Gallo,
2014 NCBC 43 ¶ 35
 (N.C.
Super. Ct., Sept. 4, 2014), www.ncbusinesscourt.net/opinions/2014_NCBC_43.pdf
(denying preliminary injunction).
   {36} Plaintiff seeks a temporary restraining order, contending that Defendant
should be enjoined from disclosing Plaintiff’s trade secret information because
Defendant has the opportunity to disclose Plaintiff’s trade secret information as a
crew chief for Ganassi and will inevitably disclose that information to Ganassi.
Plaintiff does not bring forward evidence suggesting that Defendant has actually
disclosed Plaintiff’s confidential or proprietary information to Ganassi.
   {37} As an initial matter, the Court notes that the doctrine of “inevitable
disclosure” has not yet been firmly adopted by the North Carolina courts.
See Analog,
157 N.C. App. at 470
, 579 S.E.2d at 454–55 (declining to apply doctrine
and noting that “if the doctrine is applied as urged by [Analog], then no employee
could ever work for its former employer’s competitor on the theory that disclosure of
confidential information is ‘inevitable’”); Allegis Grp., Inc. v. Zachary Piper LLC,
2013 NCBC 13 ¶ 53
   (N.C.       Super.     Ct.,      Feb.       25,      2013),
www.ncbusinesscourt.net/opinions/2013_NCBC_13.pdf                 (denying       motion      for
preliminary injunction).
   {38} Moreover, the Court is not prepared to apply the inevitable disclosure
doctrine under the present circumstances given that Plaintiff has not brought
forward evidence suggesting that Defendant has disclosed or will disclose Plaintiff’s
confidential information. To the contrary, Defendant’s evidence tends to show that
(i) Defendant is subject to the confidentiality provision in the Employment Contract
and has not disclosed and does not intend to disclose Plaintiff’s information, (ii)
Ganassi    has   instructed    Defendant   not    to   disclose    Plaintiff’s    confidential
information, and (iii) in any event such information appears to be of limited use or
relevance to Ganassi in light of Ganassi’s own technology initiatives and the
sweeping NASCAR rule changes that will be in effect for the upcoming 2015 season.
   {39} Additionally, Defendant has challenged the adequacy of Plaintiff’s
identification of its trade secrets, offering evidence tending to show that Plaintiff’s
claimed trade secrets involve public information or are otherwise a general listing of
categories of information used and developed by any NASCAR race team. Plaintiff
points to the fact that Ganassi has objected on confidentiality grounds to Plaintiff’s
subpoena requesting Ganassi to produce documents relating to Ganassi’s race
engineer position as evidence that Defendant necessarily possesses confidential and
trade secret information of Plaintiff and has further offered affidavits attesting to
the confidential nature of the information Defendant was exposed to while
employed with Plaintiff.
   {40} Based on the Court’s review of the record and the parties’ submissions at
this time, the Court is not satisfied that Plaintiff has identified its claimed trade
secrets with sufficient particularity to warrant the extraordinary relief requested.
Plaintiff has presented several affidavits purporting to describe its “proprietary
technologies and data;” however, like the Plaintiffs in Analog and Unimin, Plaintiff
has not brought forward evidence that explains why or how Plaintiff’s methods and
processes are unique so as to qualify as trade secrets under the TSPA. See Analog,
157 N.C. App. at 468
,
579 S.E.2d at 453
 (holding that the plaintiff had “asserted
trade secrets at almost every stage in the production of [its] products but only
offered general evidence in support of those assertions”); see also Unimin,
2014 NCBC 43 at ¶ 41
 (“In like fashion here, Plaintiff broadly identifies various processes
as its alleged trade secrets without offering evidence showing that those processes
are unique to Plaintiff or have been modified by Plaintiff in unique ways.”).
   {41} Further, Plaintiff has not brought forward evidence of specific actions that
indicate that Defendant intends to disclose or use Plaintiff's alleged trade secret
information that would compel the entry of immediate injunctive relief based on a
threat of misappropriation. Such proof is frequently present when North Carolina
courts elect to enjoin threatened misappropriation. See, e.g., Horner Int’l Co. v.
McKoy,
754 S.E.2d 852
, 854–60 (N.C. Ct. App. 2014) (defendant commenced work
for a competitor shortly after sending trade secret information to defendant's
personal email account); Byrd’s Lawn & Landscaping v. Smith,
142 N.C. App. 371, 377
,
542 S.E.2d 689, 693
 (2001) (defendant immediately started his own business in
competition with former employer after resigning and underbid former employer on
eleven of fourteen projects); Barker v. Gould,
146 N.C. App. 561, 562
,
553 S.E.2d 227, 228
 (2001) (defendant made copies of plaintiff’s customer, supplier and pricing
lists and precise product formulations before resigning); Armacell LLC v. Bostic,
2010 N.C. App. LEXIS 1278
, *32 (N.C. Ct. App., July 20, 2010) (unpublished)
(defendant stole plaintiff’s proprietary information using CD burning software and
an external hard drive); Allegis Grp.,
2013 NCBC 13 at ¶ 52
 (explaining that a court
is less likely to grant injunctive relief “solely on the basis of threatened
misappropriation without proof of actual misappropriation”).
   {42} Accordingly, for each of these reasons, the Court concludes that Plaintiff
has not shown a likelihood of success on its misappropriation of trade secrets claim
at this time.
   Irreparable Harm
   {43} In light of the Court’s determination that Plaintiff has not shown a
likelihood of success on the merits of either of its claims, Plaintiff cannot show at
this stage that denial of a temporary restraining order will result in irreparable
harm.
                                           V.
                                    CONCLUSION
   {44} After balancing the equities and considering the potential harm to Plaintiff
if a temporary restraining order is not issued and the potential harm to Defendant
if the requested temporary injunctive relief is granted, and upon a review of the
entire record before the Court at this time, the Court finds that Plaintiff has not
presented sufficient evidence to show that it is likely that it will succeed on the
merits of its claims, that Plaintiff will suffer irreparable harm if a temporary
restraining order is not entered, or that the issuance of a temporary restraining
order is necessary to protect Plaintiff’s rights during the pendency of the litigation.
   {45} WHEREFORE, the Court concludes that a temporary restraining order
should not issue and hereby DENIES Plaintiff’s Motion for Temporary Restraining
Order.
        SO ORDERED, this the 19th day of December 2014.