IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

LOBO CITY MEX MSB, LLC,

Plaintiff, 

vs. 

AMPARITO'S MARKET LLC, RAUL 

SARMIENTO PINTO, and AMPARO 

RUIZ VALENCIA,

Defendants.

4:23-CV-3087

MEMORANDUM AND ORDER

This matter is before the Court on the motion for a temporary restraining 

order filed by the plaintiff, Lobo City Mex MSB, LLC. Filing 2. The Court will 

deny the plaintiff's motion because it did not comply with the procedural 

requirements for a temporary restraining order and likely did not meet the

substantive burden to prove its right to equitable relief.

The plaintiff alleges the defendants will imminently open a competing 

establishment using information stolen from the plaintiff. The plaintiff alleges 

violations of the Defend Trade Secrets Act, 18 U.S.C. §§ 1836 et seq. and the 

Nebraska Trade Secrets Act, Neb. Rev. Stat. §§ 87-501 et seq., tortious 

interference with contract and business expectancies, breach of a fiduciary 

duty, and civil conspiracy. Filing 1. 

DISCUSSION

When deciding whether to issue a temporary restraining order or a 

preliminary injunction, the Court weighs the four Dataphase factors: (1) the 

probability that the movant will succeed on the merits, (2) the threat of 

irreparable harm to the movant, (3) the state of the balance between this harm 

and the injury that granting the injunction will inflict on other parties, and (4) 

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the public interest. Johnson v. Minneapolis Park & Recreation Bd., 729 F.3d 

1094, 1098 (8th Cir. 2013) (citing Dataphase Sys., Inc. v. C L Sys., Inc., 640 

F.2d 109, 114 (8th Cir. 1981) (en banc)). No single factor is dispositive, and the 

burden is on the movant to establish the propriety of the remedy. Baker Elec. 

Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994).

But while a temporary restraining order and preliminary injunction are 

weighed by the same substantive standards, there are additional procedural 

requirements for a temporary restraining order. Specifically, the Court may 

issue a temporary restraining order—that is, an order without written or oral 

notice to the adverse party or its attorney—only if:

(A) specific facts in an affidavit or a verified complaint 

clearly show that immediate and irreparable injury, loss, or 

damage will result to the movant before the adverse party can be 

heard in opposition; and

(B) the movant's attorney certifies in writing any efforts 

made to give notice and the reasons why it should not be required.

Fed. R. Civ. P. 65(b)(1) (emphasis supplied). The plaintiff made neither 

showing: while it argues that it will suffer harm if the Court doesn't act before 

May 15, 2023, it doesn't explain why the defendants couldn't be heard in 

opposition. See filing 2; filing 3. And the plaintiff explained that it is in the 

process of providing notice, but does not explain why notice should not be 

required. See filing 2 at 3. 

The plaintiff's filings might permit an inference that notice should not 

be required because, maybe, the plaintiff only recently learned about the 

defendants' plans, and the store opening is imminent—but the plaintiff doesn't 

actually say that. As a result, the present record is silent as to why the 

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defendants' LLC was formed in August 2022, the defendants resigned from 

their employment with the plaintiff in January 2023, but this lawsuit is only 

being filed now. See filing 1 at 5-9. In other words, it's not clear whether the 

urgency of this situation, supposedly requiring ex parte relief, was truly outside 

the plaintiff's control. So, the plaintiff fails to meet its burden under Rule 

65(b)(1)(B). The interests of justice will be better served by giving both sides 

the opportunity to be heard.

Additionally, the Court has reservations that the plaintiff can satisfy the 

Dataphase factors, particularly a likelihood of success on the merits and a 

threat of irreparable harm. Complicating this is an issue of jurisdiction. The 

federal jurisdictional hook in this case is the plaintiff's Defend Trade Secrets 

Act claim. The parties are not diverse, see filing 1 at 1, and all the other claims 

arise under state law. And the plaintiff seems to be missing a key element of 

its trade secrets claim—the existence of a trade secret. 

The only alleged trade secret is a customer list which was prepared by 

one of the defendants. Filing 1 at 9. But the complaint makes clear the plaintiff 

alleges that the defendant created this list without authorization and in breach 

of her duty of loyalty. Filing 1 at 6-7. Really, the defendants are alleging the 

identities of their customers are the "trade secret," and the defendant 

misappropriated that information in making her own customer list. But this 

does not appear to meet the standard of a trade secret under either federal or 

Nebraska law. The plaintiff did not exert time and effort in compiling the list, 

so the list likely cannot be said to be the plaintiff's trade secret. See 18 U.S.C. 

§ 1839(3); Home Pride Foods, Inc. v. Johnson, 634 N.W.2d 774, 781 (Neb. 2001).

The defendant's creation of the list might support claims of tortious 

interference and breach of loyalty, and even civil conspiracy, all pled by the 

plaintiff. But without the trade secrets claim, this Court may not have 

jurisdiction. See Marianist Province of U.S. v. City of Kirkwood, 944 F.3d 996, 

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1003 (8th Cir. 2019) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350

(1988)).

Finally, it is unclear what irreparable harm the plaintiff would incur.

Harm is not irreparable when a party can be fully compensated for its injuries 

through an award of damages. Gen. Motors Corp. v. Harry Brown's, LLC, 563 

F.3d 312, 319 (8th Cir. 2009). And the Court does not see any alleged injury to 

the plaintiff that could not be resolved through monetary damages.1

Accordingly,

IT IS ORDERED:

1. The plaintiff's motion for a temporary restraining order and 

preliminary injunction (filing 2) is denied in part as to the 

temporary restraining order.

2. The defendants may respond to the plaintiff's motion, as to 

a preliminary injunction, on or before May 30, 2023. See

NECivR 7.1(b)(1)(B); Fed. R. Civ. P. 6(d). 

1 Relatedly, the Court also has questions about the scope of the injunctive relief sought by 

the plaintiff, which appears to sweep more broadly than its claims. The plaintiff wants the 

Court to prohibit the defendants from, among other things, soliciting or doing any business 

with any customers of the plaintiff with whom they had contact during their employment, 

and recruiting any employees of the plaintiff. The plaintiff is asking the Court, in other words, 

to draft and impose the non-compete agreement the plaintiff apparently wishes it had with 

the defendants. Even if the plaintiff was able to prove each and every one of its claims, it's 

not clear to the Court how that remedy would be tailored to the plaintiff's alleged injuries. 

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3. The Clerk of the Court shall mail copies of this order to the 

defendants at the addresses found in filing 6, filing 7, and 

filing 8.

Dated this 12th day of May, 2023.

BY THE COURT:

John M. Gerrard

Senior United States District Judge

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