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the judge literally tossed the enormous amount of attorney work-product across his desk, and asked counsel for the ex- employer how such a filing could have been made if the situation was truly an “emergency” as alleged. At this point, I knew that the judge


was not inclined to grant the requested “extraordinary relief.” Although I took the limited opportunity that I was given to attack the substance of the ex-employer’s arguments, I am still convinced today that the judge had decided to deny the request for a TRO based simply upon the size of the filings, and the fact that the employer plainly had waited several weeks after having notice of the alleged improper activity of the ex-employee to seek court intervention. In the end, the judge denied the requested injunctive relief, and the parties ultimately settled the case favorably for the ex-employee and his new employer. The moral of the story above is sim-


ply that employers should not delay in attempting to enforce their rights, and there is absolutely no need to submit a novel to the court to justify the request for injunctive relief. In addition to the fact that the ex-employer’s approach above did not recognize the underlying demands of immediacy for issuance of a TRO, I am quite sure that it cost the employer several thousands of dollars that ultimately could have been spent more wisely. See Mary- land Rule 15-504(a) (establishing the TRO standard as “immediate, substantial,


and irreparable harm”).


Follow the Letter of the Procedural Rules. My experience also has demonstrated


that if you are going to ask the court to issue a TRO, you had best follow the exact letter of the Maryland Rules. For example, although each court (and maybe even each judge) may have differ- ent approaches to this issue, an employer seeking a TRO under a non-compete is well served to file a bond at the time of fil- ing the Complaint and Motion for TRO. Although I admit that I have seen judges and attorneys argue that such a filing is not advisable until the actual amount is set by the court, this approach is risky and potentially disastrous. Maryland Rule 15-503 specifically


states, in part, “a court may not issue a temporary restraining order or prelimi- nary injunction unless a bond has been filed.” Maryland Rule 15-503 (emphasis added). Thus, the Rule is written to re- quire the filing of a bond before injunctive relief can be granted. Practically speaking, it is difficult to imagine a scenario where counsel for the moving party would suc- ceed in arguing to a judge that she should hold off on ruling on the TRO until counsel can exit the courtroom, contact the appropriate surety, and file a bond with the clerk of the court. It is just more practical, efficient, and, frankly more in compliance with the Maryland Rules to file a bond prior to the time you are in front of the judge arguing the merits of


the TRO. Additionally, I strongly suggest that any


request for a TRO be accompanied by a separate Affidavit signed by the client, which should affirm all of the allegations set forth in the Complaint and Motion for TRO under oath. Even though Maryland Rule 15-504 states, in relevant part, that a request for a TRO must be supported by “specific facts shown by affidavit or other statement under oath,” I have seen situa- tions where judges will not even entertain the issuance of a TRO without a separate Affidavit. Maryland Rule 15-504(a) (emphasis added). Accordingly, take the little extra time in drafting your papers to attach the appropriate Affidavit.


Support a Request for a TRO with a Separate and Distinct Cause of Action The “conservative letter of the law”


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approach described above also should be followed when drafting the Counts set forth in your employer client’s Complaint. In one scenario that I was involved in recently, a judge refused to grant a request for a TRO because I had simply set forth a cause of action for “Injunctive Relief” in the Complaint. See Paul Mark Sandler & James K. Archibald, Pleading Causes of Action in Maryland at pp. 487-489 (3d ed. 2004). The judge stated unequivocally that I needed to plead an underlying and separate cause of action in order to be entitled to any type of injunctive relief. Although I was able to pull Pleading Causes of Action in Maryland from the judge’s bookshelf in his chambers and show him my justification for pleading one cause of action for injunctive relief, this argument did not win the day. The judge then instructed me to come back to his chambers with a Complaint setting forth an underlying and separate cause of action to support the requested is- suance of a TRO. As a result, I proceeded to locate a local attorney’s office in the area, and was able to amend the Complaint to add a Breach of Contract cause of action (What would we do without courteous, professional colleagues and technology?). With an Amended Complaint in hand, I returned to the courthouse, and the judge immediately signed the requested TRO, which led to my client obtaining all relief it was seeking in the case.


Notice (and More Notice) is the Best Choice I also have found that most judges are


not inclined to grant ex parte injunctive relief under almost any circumstance when the requested relief involves po- tentially cutting off an ex-employee’s


36 Trial Reporter Winter 2007


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