A Blog About Intellectual Property Litigation and the District of Delaware


A sweetgum ball obliterated by a hatchet, a fate similar to that of plaintiffs' <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Temporary Restraining Order'>TRO</a>
A sweetgum ball obliterated by a hatchet, a fate similar to that of plaintiffs' TRO Andrew E. Russell, CC BY 2.0

The practice in Delaware has long been that calls to chambers are generally only appropriate in a relatively narrow range of circumstances, and "please decide my motion immediately" is not one of them.

It looks like one plaintiff's counsel may have learned this this hard way on Wednesday when they filed a TRO seeking to enforce an arbitration clause in an employment agreement, and then immediately called the court to urge that it receive immediate attention. Here is the Court's response, issued the same day as the motion:

Plaintiffs have filed a motion for a temporary restraining order and preliminary injunction (D.I. 5) and Plaintiffs' law firm has called chambers, alleging that the motion presents an emergent situation that requires my immediate attention. . . . I will . . . bar Plaintiffs' counsel from calling chambers again for the duration of this case. The idea that this meritless motion presented an emergency that required the Court's immediate attention is preposterous.

The Court found the motion meritless because it sought only to enforce an arbitration clause by enjoining the filing of a suit in South Carolina, when that court could just as easily enforce that provision:

Plaintiffs seek by their motion an order precluding Defendant from filing a lawsuit in South Carolina. Plaintiffs argue the injunctive relief they seek is necessary because Defendant is "unjustifiably seeking to file claims in a South Carolina court that are subject to a valid and binding arbitration clause that requires the parties to arbitrate the covered claims in Delaware." . . . .
I will deny Plaintiffs' motion because Plaintiffs have not demonstrated that Defendant's filing of a suit in South Carolina will cause them irreparable harm. . . . [O]bviously if Defendant brings claims in a South Carolina court that are covered by a mandatory arbitration clause, Plaintiffs can ask the South Carolina court to enforce the arbitration clause.

Technically, plaintiff's counsel got exactly what he asked for—the Court ruled on his motion on the same day. Be careful what you wish for.

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