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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CLEAResult CONSULTING INC.,

a Texas Corporation,

Plaintiff,

v.

BENJAMIN LIPSCOMB,

an individual,

Defendant.

Case No. 3:15-cv-01676-SI

TEMPORARY RESTRAINING ORDER

Jeffrey M. Edelson, Shannon L. Armstrong, and Lauren F. Blaesing, MARKOWITZ HERBOLD 

PC, 1211 S.W. Fifth Avenue, Suite 3000, Portland, OR 97204-3730. Of Attorneys for Plaintiff.

Edwin A. Harnden, Tyler J. Volm, and Andrew M. Schpak, BARRAN LIEBMAN LLP, 601 

S.W. Second Avenue, Suite 2300, Portland, OR 97204. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

This matter came before the Court on Plaintiff CLEAResult Consulting Inc.’s 

(“Plaintiff”) Motion for Temporary Restraining Order (“TRO”). Plaintiff appeared through its 

counsel Jeffrey M. Edelson and Shannon L. Armstrong of MARKOWITZ HERBOLD PC. 

Defendant Benjamin Lipscomb (“Defendant”) appeared through his counsel Andrew M. Schpak 

and Tyler J. Volm of BARRAN LIEBMAN LLP. 

Courts apply the preliminary injunction factors in deciding whether to grant a TRO. See 

Stuhlbarg Int’l Sales Co. v. John D. Brushy & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A 

preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear 

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showing that the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense 

Council, 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show 

that: (1) the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer 

irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in favor of 

the plaintiff; and (4) that an injunction is in the public interest. Winter, 555 U.S. at 20 (rejecting 

the Ninth Circuit’s earlier rule that the mere “possibility” of irreparable harm, as opposed to its 

likelihood, was sufficient, in some circumstances, to justify a preliminary injunction).

The Supreme Court’s decision in Winter, however, did not disturb the Ninth Circuit’s 

alternative “serious questions” test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 

1131-32 (9th Cir. 2011). Under this test, “‘serious questions going to the merits’ and a hardship 

balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the 

other two elements of the Winter test are also met.” Id. at 1132. Thus, a preliminary injunction 

may be granted “if there is a likelihood of irreparable injury to plaintiff; there are serious 

questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and 

the injunction is in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012) 

(citing Cottrell).

On September 16, 2015, the Court heard the arguments of counsel and considered the 

memoranda and evidence submitted by the parties. Based on the parties’ submissions and 

arguments, and having fully considered the arguments for and against entry of a Temporary 

Restraining Order, the Court finds and rules as follows: 

1. There is a likelihood that Plaintiff will succeed on the merits of its claim against 

Defendant alleging that Defendant has breached his Agreement to Protect Business Interests with 

Plaintiff. 

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2. Plaintiff will likely suffer irreparable harm in the absence of temporary injunctive 

relief.

3. The irreparable injury Plaintiff faces outweighs any injury that Defendant will 

sustain as a result of the Temporary Restraining Order.

4. An injunction is in the public interest under the circumstances presented here.

IT IS ORDERED that Plaintiff’s Motion for Temporary Restraining Order is 

GRANTED as follows:

1. Until this Court orders otherwise, or until such time as the parties agree to 

terminate, amend, or supersede this TRO, for the next 28 days1 Defendant shall be immediately 

enjoined from directly or indirectly soliciting or transacting business from or with the following 

four customers of Plaintiff that, according to Plaintiff, Defendant worked with while employed 

by Plaintiff: (a) Southern California Edison (“SCE”); (b) Pacific Gas & Electric (“PG&E”); 

(c) San Diego Gas & Electric (“SDG&E”); and (d) Commonwealth Edison (“CE”).

2. The parties shall engage in expedited discovery, within the scope of Rule 26 of 

the Federal Rules of Civil Procedure, in a timeframe that allows for the exchange of documents, 

 

1

The duration of a temporary restraining order issued without notice may not exceed 14 

days but may be extended once for an additional 14 days for good cause; in addition, the reasons 

for the extension must be entered in the record. Fed. R. Civ. P. 65(b)(2). Because the temporary 

restraining order entered in this case is being issued with notice and after hearing, the 14-day 

limit for orders issued without notice does not apply. See Horn Abbot Ltd. v. Sarsaparilla Ltd., 

601 F. Supp. 360, 368 n.12 (N.D. Ill. 1984). Absent consent of the parties, however, “[a] court 

may not extend a ‘TRO’ indefinitely, even upon notice and a hearing.” Id. Here, the Court has 

scheduled the preliminary injunction hearing to occur within 28 days from the date of this Order. 

In the alternative, to the extent that good cause must be shown for any extension beyond the 

initial 14 days and an explanation must be provided for such an extension, the Court finds good 

cause has been shown. The parties report that they have scheduled a mediation session to be held 

on October 2, 2015, which is beyond the initial 14-day period following entry of this Order but 

within a 28-day period. Good cause exists because the status quo should be maintained while the 

parties are afforded sufficient time both to see if they can resolve their dispute at the upcoming 

mediation and, if not, efficiently to prepare for the preliminary injunction hearing. 

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responses to discovery requests, and the taking of depositions at least three (3) days before the 

preliminary injunction hearing scheduled below. 

3. This injunction shall be in force immediately based on Plaintiff’s posting of 

$1,000 in Multnomah County Circuit Court, which will continue to secure this Order.

4. Defendant shall appear on Wednesday, October 14, 2015, in Courtroom 13B of 

the United States District Courthouse, 1000 S.W. Third Avenue, Portland, Oregon, at 1:00 P.M.

to show cause, if any, why a preliminary injunction should not issue continuing the foregoing

injunctive relief or other equitable relief as ordered by the Court.

IT IS SO ORDERED.

DATED this 16th day of September, 2015.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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