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Motion for Temporary Restraining Order

Motion for Temporary Restraining Order

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Published by: FirstCitizen1773 on Oct 22, 2010
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11/29/2012

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TEA PARTY PATRIOTS, INC.

SUIT NO. , SECTION_

26TH JUDICIAL DISTRICT

VERSUS

ROBERT GAUDET AND BLUE BIRD WIRELESS BROADBAND COMPANY, L.L.C.

BOSSIER PARISH

STATE OF LOUISIANA

PLAINTIFF'S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER

Plaintiff Tea Party Patriots, Inc. ("TPP") moves the Court to issue a

temporary restraining order in this matter. The grounds for the issuance of the

order are more fully explained in the memorandum in support of this motion and

the affidavit of Mark Meckler, attached to this motion as Exhibit "1." TPP

represents the following in support of its request:

1.

TPP has filed the instant lawsuit against defendants Robert Gaudet and Blue

Bird Wireless Broadband Company, LLC ("Bluebird")(collectively "defendants").

2.

The claims in this lawsuit and relief requested relate to certain components

ofTPP's computer system, referred to in TPP's petition as the "Computer Property."

3.

TPP has invested substantial time and expense in developing the Computer

Property and keeping it confidential. The Computer Property constitutes trade

secrets belonging to TPP.

4.

TPP is concerned that, absent a temporary restraining order from this Court,

the defendants will or have the ability to alter, destroy, or disable the Computer

Property or TPP's computer system itself.

{B0689986.! }

5.

Any such actions by the defendants will certainly result in immediate and

irreparable injury to TPP. This is because the Computer Property is crucial to

TPP's activities, its communication with its membership and the efforts relating to

the upcoming elections on November 2, 2010.

6.

Any alteration, destruction or disabling of any of the Computer Property,

would result in damages that likely could not be repaired at any point, and certainly

could not be repaired in time for the upcoming elections.

7.

TPP also requests that the Court issue the temporary restraining order

sought, without notice to the defendants because of the exigent circumstances that

exist and because if defendants notified, they might alter, destroy or disable the

Computer Property, before this Court has an opportunity to act.

8.

The relief requested in this motion is as follows:

(a) Requiring that defendants maintain and not take any steps, directly or

indirectly, to hide, relocate, destroy, alter or disable (except as ordered

by the Court) the Computer Property, as that term is defined in the

plaintiffs petition and set out in the Court's order.

(b) Requiring that the defendants give complete control to TPP of any

websites associated with TPP and not take any steps to interfere with

that control; and

(c) Requiring that defendant Gaudet facilitate and assist in the immediate

transfer of all the Computer Property, presently "hosted" by defendant

Bluebird, to a vendor selected by TPP.

(80689986.1 )

9.

TPP is prepared to post an appropriate amount of security, as set by the

Court, although suggests to the Court that any such security, given the nature of

the claims, should be minimal.

10.

TPP has submitted a proposed order with this motion.

THEREFORE, for the reasons set forth in this motion, the plaintiff Tea

Party Patriots, Inc., requests that the Court issue a Temporary Restraining Order

as requested, in the form set out in the proposed order submitted with this motion.

Respectfully submitted,

Robert C. Tucker (La. Bar Roll No. 02152) Ryan E. Johnson (La. Bar Roll No. 26352), Jones, Walker, Waechter, Po it event, Car reee & Deriegr e, L.L.P.

8555 United Plaza Boulevard

Four United Plaza, Fifth Floor

Baton Rouge, LA 70809·7000

Telephone: (225) 248·2000

Facsimile: (225) 248·3080

-and-

t i-i-:

Sidney . Co k, Jr. (La. Bar Roll No. 01311) Jarrod J. T rash (La. Bar Roll No. 29453) Cook Yancey, King & Galloway

333 Texas Street, Suite 1700

Shreveport, LA 71120

Telephone: (318) 221·6277

Facsimile: (318) 227·7850

{B0689986.1}

TEA PARTY PATRIOTS, INC. VERSUS

SUIT NO. , SECTION_

26TH JUDICIAL DISTRICT

ROBERT GAUDET AND BLUE BIRD WIRELESS BROADBAND COMPANY, L.L.C.

BOSSIER PARISH

STATE OF LOUISIANA

MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

Plaintiff Tea Party Patriots, Inc. ("TPP") has filed a motion asking the Court

to issue a temporary restrai.ning order against the defendants. This lawsuit relates

to certain computer resources that belong to TPP, defined as the "Computer

Property" in TPP's Verified Petition. Essentially, the purpose of the order is to

preserve and prevent the defendants from destroying any of the Computer Property.

The order also requires that the defendants assist TPP in moving the Computer

Property from defendant Bluebird Wireless Broadband Company, L.L.C.

("Bluebird") to another company selected by TPP.

SUMMARY OF ARGUMENT

The Court should grant the requested TRO, without notice to the defendants.

The defendants possess the ability to hide, relocate, alter, destroy and/or disable the

Computer Property, if the Court does not restrain their activities. If the defendants

took any of these actions before the Court could act, the damages to TPP would be

immediate and irreparable. TPP would not be able to use the Computer Property,

would not be able to communicate with its membership or organize their efforts for

the upcoming elections on November 2, 2010. And, even if the Computer Property

could be retrieved, repaired or recreated, this could not be done in time for the

elections. The effects on TPP would be disastrous.

LAW AND ARGUMENT

1. The Court is authorized to issue the TRO requested, and to do so without notice to the Defendants.

{B0689986.! }

Louisiana Code of Civil Procedure Article 3603 provides the standard for

granting a temporary restraining order and states in relevant part:

A. A temporary restraining order shall be granted without notice when:

(1) It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and

(2) The applicant's attorney certifies to the court in writing the effort which have been made to give the notice or the reasons supporting his claim that notice should not be required.

Thus, the Code of Civil Procedure specifically authorizes the Court to issue a

TRO without notice to the defendants.

In Jennings Guest House v. Gibson.) the appellate court found no error in the

lower court issuing a TRO without notice because the plaintiff provided an affidavit

showing that "prior notice may cause irreparable harm to the plaintiff." "Irreparable

harm or injury generally refers to a loss that cannot be adequately compensated in

money damages or measured by a pecuniary standard."2

2. TPP will suffer immediate and irreparable injury iif the Court does not enter the requested order.

The intangible nature of the Computer Property demonstrates why TPP will

suffer immediate irreparable injury, loss or damage if the Court does not act now.

The defendants both have the ability to destroy the Computer Property or take

steps to render it so useless that TPP's activities before the upcoming elections will

be devastated.

Furthermore, the facts demonstrate the potential risk to the Computer

Property, are real, and not imagined, if the Court doesn't act. As alleged in TPP's

petition, those facts include: Gaudet's complete access to and exclusive control over

the Computer Property; Gaudet's refusal to follow direct instructions when

12007-912 (La.App, 3 Cir. 12/5/07),971 So.2d 506, 510. 2Id.

(80689986.1 }

employed by TPP; Gaudet's affiliation with the owners and operators of Bluebird;

Gaudet's ability to continue to access and control the Computer Property even after

TPP terminates his employment; Gaudet's direct misrepresentations to TPP about

the steps he had supposedly taken to move the Computer Property from Bluebird's

servers; and Gaudet's ability to destroy, alter or disable the "Visual Basic" files

related to TPP's website.

These facts are confirmed by the affidavits of Mark Meckler and Jack

Hinman. TPP attached these affidavits to its motion as Exhibits "1" and "2,"

respectively.

For all these reasons, the plaintiff TPP requests that the Court issue a

temporary restraining order as requested, and in the form of the proposed order

submitted to the Court.

Respectfully submitted,

Robert C. Tucker (La. Bar Roll No. 02152) Ryan E. Johnson (La. Bar Roll No. 26352), Jones, Walker, Waechter, Poitevent, Carrere & Danegre, L.L.P.

8555 United Plaza Boulevard

Four United Plaza, Fifth Floor

Baton Rouge, LA 70809-7000

Telephone: (225) 248-2000

Facsimile: (225) 248-3080

-and-

Sidney E. Co ,Jr. (La. Bar Roll No. 01311) Jarrod J. Th ash (La. Bar Roll No. 29453) Cook Yancey, King & Galloway

333 Texas Street, Suite 1700

Shreveport, LA 71120

Telephone: (318) 221-6277

Facsimile: (318) 277-7850

(B0689986.1}

TEA PARTY PATRIOTS, INC.

SUIT NO. , SECTION_

VERSUS

26TH JUDICIAL DISTRICT

ROBERT GAUDET AND BLUE BIRD WIRELESS BROADBAND COMPANY, L.L.C.

BOSSIER PARISH

STATE OF LOUISIANA

TEMPORARY RESTRAINING ORDER

Considering the request for Temporary Restraining Order filed by the

plaintiff, Tea Party Patriots, Inc. ("TPP"), the Petition filed in this matter, the

affidavit submitted in support of the Plaintiffs request, the applicable law and the

arguments of counsel for the plaintiff, the Court finds that the plaintiff is entitled to

the issuance of a temporary restraining order, as follows.

For purpose of this Order, the term "Computer Property" means: (a) TPP's

website; (b) electronic files and programs related to TPP's website (including "Visual

Basic" files related to creating and operating the website); (c) the electronic

database that includes contact and other information about TPP's members, local

organizers, and state and national coordinators; and (d) other computer programs

and files that are related to TPP's operations, including programs and files

regardless of location of storage.

IT IS ORDERED that:

(a) Defendants shall maintain and not take any steps, directly or

indirectly, to hide, relocate, destroy, alter or disable (except as

provided by other orders of the Court) the Computer Property;

(b) Defendants shall give complete control to TPP of any websites

associated with TPP and not take any steps to interfere with that

control;

(c) Defendant Gaudet shall facilitate and assist in the immediate transfer

of the Computer Property to TPP or a company selected by TPP; and

{B0689125.2}

14

(d) Defendants shall provide one copy of the Computer Property to TPP

and two copies of the Computer Property to the Bossier Parish Sheriffs

Office.

The Court further finds that this order should be issued with no notice to the

Defendants because of the exigent circumstances that exist.

~.

The plaintiff shall post security in the amount of $ 1(?Ju in

connection with the issuance of this order. . ft--

Signed at ~ Louisiana, this / t day of October, 2010.

Time of Issuance: d.'---U ,r!! h..-1

JUDG

PLEASE SERVE:

ROBERT GAUDET 303 TEALWOOD DR.

BOSSIER CITY, LA 71111; AND

BLUEBIRD WIRELESS BROADBAND, LLC, THROUGH ITS REGISTERED AGENT

FOR SERVICE OF PROCESS,

JOHN M. FRAZIER

333 TEXAS STREET

SUITE 2350

SHREVEPORT, LA 71101

{B0689125.2J

15

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