United States District Court, D. Arizona
ORDER
Douglas L. Rayes United States District Judge.
Before
the Court is Defendants' Motion to Compel Passwords or
Access to Business Accounts of Scribe One. (Doc. 123.) The
motion will be denied.
I.
Background [1]
This
case involves a dispute over the ownership of a company
called Scribe One in which nearly all critical contracts
between the parties either were not reduced to writing or
have been lost. At bottom, Plaintiff Kellye Evans claims that
she is the sole owner of Scribe One; Defendants contend that
Defendant Sydney Stern owns Scribe One, that Evans worked for
Scribe One as an employee, that Evans owns a preexisting
business called Evans Consulting, and that Evans Consulting
contracted (apparently orally) with Scribe One for staff and
other back office support.
On
November 19, 2019, the Court denied Evans' motion for a
preliminary injunction, in which she asked the Court to
enjoin Defendants from certain activities that she believed
would interfere with her ability to effectively operate
Scribe One. (Doc. 102.) In doing so, the Court found, based
on the evidence presented at the preliminary injunction
hearing, that Evans was unlikely to succeed on her claim that
she is Scribe One's sole and lawful owner. Shortly
thereafter, Defendants terminated Evans' employment with
Scribe One. Evans has since amended her complaint to add
alternative claims based on Defendants' version of events
but continues to assert principally that she owns Scribe One.
(Doc. 121.)
On
December 20, 2019, Defendants filed the instant motion, which
asks the Court to “compel [Evans] to provide passwords
to business accounts for Scribe One or otherwise take actions
to allow . . . Stern to access accounts for platforms
necessary for the continued operation of Scribe One.”
(Doc. 123.) In particular, Defendants seek access to: (1) a
WhenIWork account, which is used for employee scheduling and
timekeeping, (2) Adobe Captivate Prime, a subscription
service used to store and display files, and which Evans has
used to store and present training materials for newly hired
scribes, [2] and (3) a YouCanBookMe account, which is
used to help potential hires make appointments for
interviews.
In
response, Evans contends that the WhenIWork account and Adobe
Captivate Prime materials belong to her, she created them for
Evans Consulting before the formation of Scribe One and
allowed Scribe One to use them during her employ with the
company, but following her termination no longer wants to
share them with Scribe One. As for the YouCanBookMe account,
Evans contends that she has not used the account since May
2019 and does not know or have access to the login
information. (Doc. 124.)
II.
Legal Standard
No
party briefed the legal standard applicable to
Defendants' request. The Court does not have carte
blanche to direct the parties' business affairs simply
because they are litigating a business dispute. If a party
wants the Court to order affirmative relief, it must identify
the authority that permits the Court to do so. Defendants
have not. In fact, their motion cites no legal authority
whatsoever.
Defendants
style their motion as a “motion to compel, ” but
a motion to compel is a tool to induce compliance with
discovery requests. See Fed. R. Civ. P. 37(a). A
litigant may, for example, move to compel compliance with a
subpoena, production of documents, answers to
interrogatories, or a witness' presence at a deposition.
Defendants, however, are not seeking to compel responses to
discovery requests. Instead, they are asking the Court for
substantive relief-an order directing Evans to turn over
passwords and, in the process, presumably finding that these
accounts and materials belong to Scribe One. Defendants'
motion is more akin to a motion for a preliminary injunction,
and the Court will treat it as such.
A
litigant seeking a preliminary injunction must establish that
she is likely to succeed on the merits of some claim or
counterclaim, that she is likely to suffer irreparable harm
in the absence of preliminary relief, that the balance of
equities tips in her favor, and that an injunction is in the
public interest. Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008); Am. Trucking Ass'n,
Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th
Cir. 2009). These elements may be balanced on a sliding
scale, whereby a stronger showing of one element may offset a
weaker showing of another. See Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131, 1134-35 (9th
Cir. 2011). But the sliding-scale approach does not relieve
the movant of the burden to satisfy all four prongs for the
issuance of a preliminary injunction. Id. at 1135.
Instead, “‘serious questions going to the
merits' and a balance of hardships that tips sharply
towards the [movant] can support issuance of a preliminary
injunction, so long as the [movant] also shows that there is
a likelihood of irreparable injury and that the injunction is
in the public interest.” Id. at 1135. The
movant bears the burden of proof on each element of the test.
Envtl. Council of Sacramento v. Slater, 184
F.Supp.2d 1016, 1027 (E.D. Cal. 2000).
III.
Discussion
Defendants'
motion is woefully deficient, as it fails to discuss any
aspect of the preliminary injunction standard. The Court will
limit its analysis to the likelihood of success on the merits
and irreparable harm factors. As explained below, Defendants
have not carried their burden on those factors, making the
balance of hardships and the public interest factors
irrelevant.
A.
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