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Evans v. Scribe One Limited LLC

United States District Court, D. Arizona

January 6, 2020

Kellye Evans, Plaintiff,
Scribe One Limited LLC, et al., Defendants.


          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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