FW-CO, Inc. v. Schulz et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
ORDER GRANTING TEMPORARY RESTRAINING ORDER
This 	matter 	is 	before 	the 	Court 	on 	the 	Emergency 	Motion 	for 	Temporary
Restraining Order and Preliminary Injunction (“Emergency TRO Motion” or “Motion”) filed
by Plaintiff FW-CO, Inc., d/b/a Fortis (“Plaintiff” or “Fortis”) on February 6, 2025. 	[Doc.
10].1 	Fortis seeks immediate injunctive relief to protect against irreparable harm
threatened to its business if its former executive, Defendant David Schupmann (“Mr.
Schupmann”), performs managerial or sales and marketing functions for Roofing USA,
Inc. (“Roofing USA”), or any other competing business. See generally [id.].
For the reasons set forth in Fortis’s Verified Amended Complaint, [Doc. 20]; the
instant Motion, [Doc. 10]; and Fortis’s oral argument at the hearing on the Emergency
1 Where the court refers to the filings made in the Electronic Court Filing (“ECF”) system
in this action, it uses the convention [Doc. ___]. When citing to transcripts filed on the
docket, this Court refers to the ECF docket number, and the original page and line number
in the transcript for the purposes of consistency.
Civil Action No. 1:25-cv-00254-NYW-TPO
FW-CO, Inc. d/b/a FORTIS,
Plaintiff,
v.
CHARLES SCHULZ,
DAVID SCHUPMANN, and
TRIDENT SOLUTIONS OF SUGAR GROVE LLC,
Defendants.
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TRO Motion, see [Doc. 27], the Court GRANTS Plaintiff’s request for a temporary
restraining order.
BACKGROUND2
This case involves an employment dispute between Plaintiff and two of its former
employees, Mr. Schupmann and Charles Schulz (“Mr. Schulz”),3 as well as an entity
formed by Messrs. Schupmann and Schulz, Trident Solutions of Sugar Grove LLC
(“Trident” and collectively, “Defendants”). 	See [Doc. 20 at ¶¶ 1–3]. 	Fortis is a roof
reconditioning, replacement, and insurance company serving commercial clients looking
to avoid full roof replacements, [id. at ¶ 23; Doc. 10 at 3], which can be “extremely
expensive and cumbersome operationally,” [Doc. 10 at 3]. 	Fortis assesses commercial
roofs, performs “reconditioning” to extend the life of commercial roofs, and issues
warranties to commercial clients whereby Fortis covers the cost of any additional roof
reconditioning needed during the warranty period. [Id.; Doc. 20 at ¶¶ 23–24].
On February 27, 2018, Fortis hired Mr. Schupmann as Senior Vice President of
Sales and Marketing. 	[Doc. 20 at ¶ 4]. 	In connection with the same, Mr. Schupmann
signed 	an 	Employment 	Agreement 	containing 	various 	restrictive 	covenants 	(the
“Agreement”). 	[Id. at ¶¶ 32–37]; see also [Doc. 10-1 (Agreement)]. 	Relevant here, the
Agreement provides that Mr. Schupmann:
2 The following facts are drawn from Fortis’s Verified Amended Complaint, [Doc. 20], and
several documents filed by Fortis in support of its Emergency TRO Motion, see [Doc. 10;
Doc. 10-1; Doc. 10-2; Doc. 10-3], and are taken as true for the purposes of this instant
Order. 	The Court also has drawn facts from Mr. Schupmann’s Declaration provided in
support of his Response to the Motion for TRO, [Doc. 21-2], and taken those as true.
3 Mr. Schupmann hired and supervised Mr. Schulz during their respective tenures at
Fortis. [Doc. 20 at ¶¶ 5, 8, 30].
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shall keep secret and shall not divulge any of the names of, or any other
information relative to, the clients and business operations of [Fortis], and
any information concerning [Fortis’s] clients, employees, . . . techniques,
methods, and any [and] all business associations or activities of [Fortis] and
its clients and any information or knowledge that [Mr. Schupmann] acquires
during [Mr. Schupmann’s] employment with [Fortis].
[Doc. 10-1 at § 5.1.1]. Mr. Schupmann also agreed that he would not directly or indirectly
“approach, solicit, induce, divert or hire, or attempt to approach, solicit, induce, divert or
hire, 	any . . . customer 	or 	prospective 	customer” 	of 	Fortis 	to 	“terminate
such . . . relationship with [Fortis],” during his employment and for two years thereafter.
[Id. at § 5.2.1]. Finally, Mr. Schupmann also agreed that, during his employment and for
two years thereafter, he would not:
within the Area, either directly or indirectly, on his own behalf or in the
service or on behalf of others, or in any other capacity which involves duties
and responsibilities similar to those [Mr. Schupmann] has undertaken for
[Fortis], engage in any . . . business organization . . . engaged in any
business or enterprise which is the same as, or substantially the same as,
the business of [Fortis].
[Id. at §§ 5.3, 5.3.1 (“non-competition provisions”)].4
According to Fortis, Defendants operated a “kickback scheme” during Messrs.
Schupmann and Schulz’s employment in violation of the terms of the Agreement. [Doc.
20 at ¶¶ 9–11, 49–61]. Among other things, Messrs. Schupmann and Schulz guaranteed
repeat business to certain contractors from within Fortis’s contractor network in exchange
for kickbacks, which Defendants funneled to Trident. 	[Id.]. 	Defendants also redirected
Fortis customers and prospective customers to Trident. 	[Id. at ¶¶ 62–81]. 	Upon
discovering and investigating Defendants’ misconduct, Fortis terminated Messrs. Schulz
4 The “Area” is defined as “any state or country where [Fortis] engages in any business
during [Mr. Schupmann’s] employment with [Fortis].” [Doc. 10-1 at § 5.3.1].
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and Schupmann on August 9 and December 24, 2024, respectively. [Id. at ¶¶ 91, 93–94;
Doc. 10 at 6].
Fortis initiated this lawsuit on January 24, 2025, see [Doc. 1], bringing claims for
breach of fiduciary duty of loyalty and breach of contract against Defendants Schulz and
Schupmann; claims for tortious interference with contract and prospective business
advantage against Trident; and claims for civil theft, conversion, and civil conspiracy
against all Defendants, see generally [Doc. 20]. 	Plaintiff also seeks damages and
injunctive relief.5
On January 31, 2025, Fortis learned that Mr. Schupmann is now working for
Roofing USA, “a company that provides the same services that Fortis does, namely roof
repairs, replacement, and maintenance,” [Doc. 10 at 10], allegedly in contravention of
restrictive covenants contained in the Agreement, [id. at 6; Doc. 20 at ¶ 101 (alleging that
Fortis “is often directly competitive with the services offered by companies like Roofing
USA because a business in need of roofing services can choose to buy the Fortis
warranty or have repairs done by a traditional roofing contractor”)].6 Given the role that
Mr. Schupmann held at Fortis, Plaintiff asserts that he is uniquely positioned to “[e]xploit
[Fortis’s] strengths and weaknesses . . . to help Roofing USA tailor pitches to Fortis
5 Although Fortis pleads injunctive relief as a cause of action (Count III), see [Doc. 20 at
¶¶ 121–28], injunctive relief is not a separate cause of action but instead a request for a
certain type of relief, Brickert v. Deutsche Bank Nat’l Tr. Co., 380 F. Supp. 3d 1127, 1141
(D. Colo. 2019).
6 Roofing USA’s website advertises its “superior roofing solutions for commercial
properties,” and highlights “Roof Maintenance,” “Roof Replacement,” and “Roof Repairs,”
as three of its four services. 	[Doc. 10-3]; see also [id. (describing Roofing USA’s “Roof
Maintenance” service as “[a] proactive maintenance plan [that] can help you stay on top
of your repairs, protect your roof’s warranty, AND extend the life of your roof!”)].
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customers and prospects, . . . to the detriment of Fortis’s additional services, including
coordination of roof servicing, roof assessments, and roof management.” 	[Doc. 20 at
¶ 101].
Accordingly, Fortis filed the instant Emergency TRO Motion on February 6, 2025.
[Doc. 10].7 On February 11, 2025, Fortis filed a Verified Amended Complaint, [Doc. 20],
and shortly thereafter, Mr. Schupmann and Trident responded to the instant Motion, [Doc.
21]. 	The Court held a hearing on the Emergency TRO Motion on February 13, 2025.
[Doc. 27].8
ANALYSIS
Rule 65(b) of the Federal Rules of Civil Procedure provides for the issuance of
temporary restraining orders. To merit the issuance of a temporary restraining order, the
movant must establish that (1) it has a substantial likelihood of prevailing on the merits;
(2) it will suffer irreparable injury if it is denied the injunction; (3) its threatened injury
outweighs the injury that the opposing party will suffer under the injunction; and (4) an
injunction would not be adverse to the public interest. 	See Wiechmann v. Ritter, 44 F.
App’x 346, 347 (10th Cir. 2002) (citing Country Kids ‘N City Slicks, Inc. v. Sheen, 77 F.3d
1280, 1283 (10th Cir. 1996)); Briscoe v. Sebelius, 927 F. Supp. 2d 1109, 1114 (D. Colo.
7 While the Emergency TRO Motion seeks a TRO against Mr. Schupmann and Trident,
[Doc. 10 at 1], Plaintiff does not assert any independent basis for immediate injunctive
relief against Trident and thus falls far short of meeting its burden to obtain a TRO against
Trident. Trident, through Mr. Schupmann’s Declaration under oath, represented that it “is
not currently conducting business and has no plans to do so in the future.” [Doc. 21 at 4
(citing [Doc. 21-1 at ¶ 8])]. Plaintiff’s counsel further clarified at oral argument that Plaintiff
seeks a TRO only “against Mr. Schupmann and anyone in active concert with him.” [Doc.
32 at 27:11–16].
8 Fortis and Mr. Schulz have filed a Joint Motion for Entry of Consent Preliminary
Injunction, [Doc. 29], which is separately pending before the Court.
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2013). 	Here, Fortis contends that Mr. Schupmann’s current employer, Roofing USA, is
engaged in a business which is the same as, or “similar” to the business of Fortis by
providing roofing replacement, repair, and maintenance services in Florida, Georgia,
North Carolina, South Carolina, South Dakota, Texas, and Virginia, “just outside the
warranty context ,” and seeks to enforce the non-competition provisions of its Agreement
with Mr. Schupmann. [Doc. 10 at 6]. Mr. Schupmann disagrees, arguing that Fortis and
Roofing USA are not competitors, as Roofing USA is in the roofing contractor business
and Fortis is in the warranty business. 	[Doc. 21 at 6]. 	Because Fortis seeks only to
enforce the non-compete provisions of the Agreement, this Court construes this as a
request to preserve the status quo. See Bar Method Franchisor LLC v. Henderhiser LLC,
580 F. Supp. 3d 979, 988 n.6 (D. Colo. 2022) (observing that “[s]eeking the relief of simply
enforcing the current terms of the Settlement Agreement, on the other hand, would
preserve the status quo”); Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d
792, 798 n.3 (10th Cir. 2019) (quoting 11A Charles A. Wright & Arthur R. Miller, Federal
Practice & Procedure § 2948 (3d ed. 2018) (defining “[t]he status quo” as “the last
peaceable 	uncontested 	status 	existing 	between 	the 	parties 	before 	the 	dispute
developed”)).
Substantial Likelihood of Success on the Merits. The Court turns first to the
question of whether Fortis has established a substantial likelihood of success on the
merits that Mr. Schupmann breached his Agreement with Fortis by working for Roofing
USA because the analysis contained herein intrinsically impacts its consideration of
irreparable harm. This Court is persuaded that Fortis has adequately established that Mr.
Schupmann was “an executive or management personnel” as contemplated by Colo.
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Rev. Stat. § 8-2-113(2)(d), so that Mr. Schupmann falls within the exception set forth in
the statute.9 	See, e.g., [Doc. 20-1 (referring to Mr. Schupmann as an “executive” and
identifying him as a Senior Vice-President of Sales and Marketing); Doc. 20 at ¶¶ 8
(characterizing Mr. Schupmann as Mr. Schulz’s supervisor), 30 (alleging that “[f]rom the
start of his employment, Schupmann operated in an executive role and managed Fortis’s
marketing and operations staff”)].
Thus, the Court now turns to the central inquiry, i.e., whether Fortis has carried its
burden to establish a substantial likelihood that Mr. Schupmann:
within the Area, either directly or indirectly, on his own behalf or in the
service or on behalf of others, or in any other capacity which involves duties
and responsibilities similar to those [Mr. Schupmann] has undertaken for
[Fortis], engage in any . . . business organization . . . engaged in any
business or enterprise which is the same as, or substantially the same as,
the business of [Fortis].
[Id. at §§ 5.3, 5.3.1]. Based on the record currently before it, including review of Fortis’s
Amended Verified Complaint and the exhibits attached thereto, [Doc. 20]; the exhibits to
instant Motion, [Doc. 10], this Court concludes that Fortis has carried its burden at this
juncture.
While 	Mr. 	Schupmann 	emphasizes 	the 	distinction 	between 	the 	respective
business models of Fortis and Roofing USA, this Court focuses on the plain language of
9 In determining whether the executive or management personnel exception applies,
courts consider several factors, including where the employee fits in the company’s
compensation structure; the number of employees under the employee’s supervision;
whether the alleged manager had a role in setting company strategy; and the amount of
autonomy the alleged manager possessed to make business decisions. 	See Exec.
Consulting Grp., LLC v. Baggot, No. 18-cv-00231-CMA-MJW, 2018 WL 1942762, at *6
(D. Colo. Apr. 25, 2018) (citing DigitalGlobe, Inc. v. Paladino, 269 F. Supp. 3d 1112, 1122
(D. Colo. 2017); DISH Network Corp. v. Altomari, 224 P.3d 362, 366 (Colo. App. 2009)).
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the Agreement. 	First, Mr. Schupmann does not dispute that as the Vice President of
Sales, he works in a managerial capacity for Roofing USA and in a capacity that involves
duties and responsibilities (e.g., sales) like those he provided to Fortis. 	Compare [Doc.
20 at ¶ 100], with [Doc. 21-1 at ¶ 4]. 	Second, the non-competition provisions do not
require that Fortis’s and Roofing USA’s respective business models, revenue drivers, or
services be identical. 	Rather, the plain language of the non-competition provisions
requires this Court to determine whether Roofing USA is a “Competing Business”, defined
broadly to mean “any business organization of whatever form directly engaged in any
business or enterprise which is the same as, or is substantially the same as, the business
of” Fortis. [Doc. 20-1 at § 5.3.1 (emphasis added)].10
Both Fortis and Roofing USA focus on commercial roofing. Compare [Doc. 20 at
¶ 10], with [Doc. 10-3]. In its Verified Amended Complaint, Fortis states that it provides
an initial roofing reconditioning service, i.e., roofing repair work that brings the subject
roof up to the Fortis’s standard to qualify for a roofing warranty. [Doc. 20 at ¶¶ 7, 23].11
[Id.]. Because not all roofs are eligible for the warranty program, Fortis advises clients if
the roof requires an immediate replacement, and clients may request that Fortis manage
the roof replacement process. 	[Id. at ¶ 27]. 	In such instances, Fortis earns a general
management fee and works with its contractor network to replace the roof. 	[Id.]. 	Fortis
10 While Fortis utilizes the term “similar” when comparing Fortis’s business to that of
Roofing USA, [Doc. 10 at 6], this Court hews to the language of the Agreement that
requires “the same” or “substantially the same,” [Doc. 20-1 at § 5.3.1].
11 The fact that Fortis works with outside contractors to provide the labor and materials
on these projects does not belie the fact that Fortis earns revenue for this initial roofing
work.
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has received over $1,000,000 in revenue for roof replacement management projects
between 2022 and 2024. [Id.].
Roofing USA advertises that it performs roof maintenance, replacement, and repair
work. 	[Doc. 10-3 at 1]. 	Mr. Schupmann concedes that Roofing USA performs roofing
installation and remediation services for commercial roofs. [Doc. 21-1 at ¶ 5]. In addition,
like Fortis, Roofing USA advertises a proactive maintenance program that helps “protect
your roof’s warranty, AND extend the life of your roof.” 	[Doc. 10-3 at 1]. 	The fact that
Roofing USA does not itself provide that warranty does not undercut the fact that it is
offering a roofing service to allow a client to protect its warranty. [Doc. 21-1 at ¶ 6]. Nor
is it disputed that Roofing USA also manages roofing replacement processes through
subcontractors. 	See generally [Doc. 21-1 at ¶ 6]. 	Based on the record before it, this
Court concludes that Fortis has carried its burden as to a substantial likelihood of success
on the merits.
Irreparable Harm. The United States Court of Appeals for the Tenth Circuit
(“Tenth 	Circuit”) 	recognizes 	that 	irreparable 	harm 	is 	“the 	single 	most 	important
prerequisite for the issuance of a preliminary injunction, the moving party must first
demonstrate that such injury is likely before the other requirements for the issuance of an
injunction will be considered.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp.,
356 F.3d 1256, 1260 (10th Cir. 2004). While irreparable harm often arises in the context
of a breach of a non-compete agreement, see id. at 1263 (citing cases), the breach alone
does not automatically, nor as a matter of course, allow the Court to conclude that
irreparable harm exists. Instead, courts also examine the following non-exhaustive list of
factors: the inability to calculate damages, harm to goodwill, diminishment of competitive
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positions in the marketplace, loss of employees’ unique services, the impact of state law,
and lost opportunities to distribute unique products. Id.
Fortis alleges in its Verified Amended Complaint that in his capacity at Roofing
USA, Mr. Schupmann “poses a serious threat of unfair competition in that he can exploit
the relationships that he developed on behalf of Fortis with commercial clients and
prospects to sell roofing maintenance, repairs, and replacement,” and direct Fortis’s
current and prospective customers away from Fortis’s warranty offering and additional
services. 	[Doc. 20 at ¶ 101]. 	Fortis avers it has received multiple inquiries from Coca-
Cola regarding warranty forms and contractual language, and upon information and
belief, Coca-Cola has taken such action because Mr. Schupmann continues to contact
Coca-Cola in an effort to solicit its business away from Fortis. [Id. at ¶ 102]. Fortis further
contends that the loss of goodwill cannot be compensated. 	[Id. at 11–12]. 	Mr.
Schupmann argues that Fortis has failed to identify “a single customer it has lost to
Roofing USA, points to no confidential information Schupmann purportedly is using in his
current employment, and makes no specific allegation that Schupmann is, in fact,
currently attempting to compete with it.” [Doc. 21 at 5].
Though 	recognizing 	the 	appeal 	of 	Mr. 	Schupmann’s 	argument, 	this 	Court
ultimately concludes that Fortis has sustained its burden of establishing irreparable harm
at this juncture for the following reasons. As an initial matter, to the extent that Roofing
USA falls within the non-compete provisions of the Agreement, Mr. Schupmann’s
employment alone, with duties and responsibilities similar to those he performed for
Fortis, violates the Agreement. Mr. Schupmann does not rebut Fortis’s verified contention
that he performs duties or has responsibilities similar to those he performed for Fortis,
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and he is not permitted under the Agreement to work for any business organization
“engaged in any business or enterprise which is the same as, or substantially the same
as, the business of” Fortis. See generally [Doc. 21-1]. In addition, Fortis avers that Mr.
Schupmann was given significant access to its customer relationships, confidential
information, and trade secrets. 	[Doc. 20 at ¶ 32]. While Mr. Schupmann states under
oath that he has never used any proprietary information or trade secrets of Fortis while at
Roofing USA and that he does not intend to do so, it is unrebutted that he cannot solicit
work for Roofing USA that Fortis could perform as part of its services to Fortis’s former,
existing, and future business prospects that were developed while Mr. Schupmann was
at Fortis. 	Mr. Schupmann does not address Fortis’s contention that he cannot contact
such prospects. See generally [Doc. 21-2]. As a result, based on the record before the
Court, Fortis’s contention that Mr. Schupmann’s continued contact with Fortis customers
threatens irreparable harm stands unrebutted.12
It is well-established that Colorado courts – both state and federal – have
recognized that confidential and proprietary client lists and data can constitute protectible
trade secrets. Hertz v. Luzenac Grp., 576 F.3d 1103, 1114 (10th Cir. 2009); Saturn Sys.,
Inc. v. Militare, 252 P.3d 516, 522 (Colo. App. 2011). 	Second, courts have also
recognized that a receiving party of customer lists can obtain a competitive advantage in
terms of soliciting business. 	See Fireworks Spectacular, Inc. v. Premier Pyrotechnics,
12 The Court recognizes that the factual record on this issue is subject to better
development, which may ultimately impact its determination in the context of the
forthcoming preliminary injunction motion, dispositive motions, or at trial. 	EIS Ultimate
Holding, LP v. Huset, No. 23-cv-02324-GPG-MDB, 2024 WL 4472008, at *18 (D. Colo.
Sept. 19, 2024).
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Inc., 86 F. Supp. 2d 1102, 1106 (D. Kan. 2000).13 	Third, courts have recognized that
injunctive relief is especially appropriate in non-competition cases because of the difficulty
in proving money damages caused by illicit competition. Exec. Consulting Grp., 2018 WL
1942762, at *8. Fourth, human relationships and goodwill often form the backbone for a
successful sale of services, and it is difficult not only to determine how to quantify the
value of those intangibles, but also how to repair them once damaged. See, e.g., [Doc.
20 at ¶ 102]; EIS Ultimate Holding, LP v. Huset, No. 23-cv-02324-GPG-MDB, 2024 WL
4472008, at *10 (D. Colo. Sept. 19, 2024). In finding that Fortis has met its burden as to
irreparable harm, this Court notes, as others have, that “absolute certainty” is not the
standard. Id.
Balance of the Harms. The Court does not take lightly the potential harm to Mr.
Schupmann and his career in granting a temporary restraining order. But that injury may
be discounted given Mr. Schupmann’s awareness of his contractual obligations to Fortis
when he took his position with Roofing USA. 	See Core Progression Franchise LLC v.
O’Hare, No. 21-cv-0643-WJM-NYW, 2021 WL 1222768, at *10 (D. Colo. Apr. 1, 2021),
aff’d, No. 21-1151, 2022 WL 1741836 (10th Cir. May 31, 2022) (discounting injury to
defendant based on the fact that the defendant brought that injury upon itself); Fitness
Together Franchise, L.L.C. v. EM Fitness, L.L.C., No. 20-cv-02757-DDD-STV, 2020 WL
6119470, at *11 (D. Colo. Oct. 16, 2020) (citing Novartis Consumer Health, Inc. v.
Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 596 (3d Cir. 2002));
13 Not surprisingly in these kinds of cases, there is currently an asymmetry of information
at this juncture regarding Mr. Schupmann’s use of confidential customer lists or data that
may be cured through the contemplated expedited discovery.
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ConvergeOne, Inc. v. Logicalis, Inc., No. 22-cv-02151-HLT-ADM, 2022 WL 2791177, at
*12 (D. Kan. July 15, 2022). This Court concludes that the balance of harms tips in favor
of Fortis, but this Court will tailor the TRO to minimize the harm to Mr. Schupmann.
Public 	Interest. 	Preventing 	unfair 	competition 	and 	enforcing 	appropriate
restrictive covenants under Colorado law helps protect and encourage investment in not
only businesses, but employees. 	See Bar Method Franchisor, 580 F. Supp. 3d at 997
(collecting cases). 	Simply put, “it is in the public interest for laws to be obeyed and
contracts to be observed.” 	Panorama Consulting Sols., LLC v. Armitage, No. 17-cv-
01400-RM, 2017 WL 11547493, at *4 (D. Colo. June 9, 2017).
Duration. 	Plaintiff did not simultaneously move for a preliminary injunction, see
[Doc. 10], and at oral argument, indicated that it only sought a TRO until the time of the
preliminary injunction hearing. 	[Doc. 32 at 53:12–16]. 	Generally, a TRO expires within
14 days of issuance, unless the Court extends it for good cause. Fed. R. Civ. P. 65(b)(2).
Here, 	the 	Court 	finds 	good 	cause 	to 	extend 	the 	TRO, 	up 	to 	and 	including 	the
determination of the forthcoming motion for preliminary injunction, with the explicit
recognition that expedited discovery and a more fulsome record could tip the Court’s
consideration regarding the entry of a longer preliminary injunction in either Party’s favor.
Security. Rule 65(c) provides as follows:
No restraining order or preliminary injunction shall issue except upon the
giving of security by the applicant, in such sum as the court deems proper,
for the payment of such costs and damages as may be incurred or suffered
by any party who is found to have been wrongfully enjoined or restrained.
Fed. R. Civ. P. 65(c). Given the restrictions on Mr. Schupmann’s employment, this Court
finds that security is required, in the amount of Mr. Schupmann’s compensation and
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benefits (to the extent that they will not continue), for the duration of the TRO.
Thus, for the reasons set forth in herein, Plaintiff’s request for a TRO is GRANTED,
subject to the posting of a bond and only until the determination of the forthcoming
Motion for Preliminary Injunction.
CONCLUSION
Accordingly, IT IS ORDERED that:
(1) 	Plaintiff’s 	Emergency 	Motion 	for 	Temporary 	Restraining 	Order 	and
Preliminary Injunction [Doc. 10] is GRANTED as follows:
(a) 	Defendant 	David 	Schupmann 	is 	restrained 	from 	engaging 	in
managerial or sales and marketing functions for any entity that offers
commercial roof maintenance plans, commercial roof repairs, or
commercial roof replacements in any state in which FW-CO, Inc.
d/b/a Fortis operated between February 27, 2018 and December 24,
2024;
(b) 	Pursuant to Rule 65(b)(2) of the Federal Rules of Civil Procedure,
this Temporary Restraining Order shall 	expire 	upon 	the 	Court’s
ruling on Plaintiff’s request for a preliminary injunction;
(c) 	Pursuant to Fed. R. Civ. P. 65(c), Plaintiff shall post bond in an
amount equal to Mr. Schupmann’s anticipated compensation with
Roofing USA for the period this Order remains in effect;
i. 	On or before February 26, 2025, the Parties shall meet and
confer regarding the necessary inputs for calculating the bond
amount, which will be calculated based on Mr. Schupmann’s
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compensation (and if applicable, benefits) at Roofing USA while
this Order is in effect;
ii. 	To the extent the Parties can agree, the Parties shall FILE a
stipulation as to the bond calculation by no later than February
28, 2025; and
iii. 	To the extent the Parties are unable to reach an agreement, the
Parties shall jointly contact chambers by no later than February
28, 2025 to schedule a status conference; and
(2) 	Pursuant to Fed. R. Civ. P. 65, a preliminary injunction hearing is SET for
May 30, 2025 at 9:00 a.m. in Courtroom A 902 before Judge Nina Y. Wang, Alfred A.
Arraj United States Courthouse, 901 19th Street, Denver, Colorado 80294. The Parties
shall submit all proposed exhibits and witness lists no later than May 23, 2025;
(3) 	Any expedited discovery shall be completed by no later than April 8, 2025;
Fortis shall FILE its forthcoming Motion for Preliminary Injunction by no later than April
29, 2025; and any response thereto shall be filed by no later than May 13, 2025. No reply
shall be permitted absent leave of the Court; and
(4) 	A telephonic Status Conference is SET for February 26, 2025 at 11:00 a.m.
before Judge Nina Y. Wang to discuss the pending Joint Motion for Entry of Consent
Preliminary Injunction [Doc. 29]. 	The Parties shall participate using the following dial-in
information: 571-353-2301; Access Code: 783456374.
Case No. 1:25-cv-00254-NYW-TPO Document 35 filed 02/24/25 USDC Colorado
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16
DATED: February 24, 2025 	BY THE COURT:
_______________________
Nina Y. Wang
United States District Judge
Case No. 1:25-cv-00254-NYW-TPO Document 35 filed 02/24/25 USDC Colorado
pg 16 of 16