JAK Productions, Inc. v. Bayer

94 F. Supp. 3d 777, 2015 U.S. Dist. LEXIS 38987, 2015 WL 1400553
CourtDistrict Court, S.D. West Virginia
DecidedMarch 27, 2015
DocketCivil Action No. 2:15-cv-00361
StatusPublished

This text of 94 F. Supp. 3d 777 (JAK Productions, Inc. v. Bayer) is published on Counsel Stack Legal Research, covering District Court, S.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
JAK Productions, Inc. v. Bayer, 94 F. Supp. 3d 777, 2015 U.S. Dist. LEXIS 38987, 2015 WL 1400553 (S.D.W. Va. 2015).

Opinion

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION AND ORDER

JOSEPH R. GOODWIN, District Judge.

Pending before the court is the plaintiffs’ motion for a preliminary injunction with respect to the parties’ covenant to not compete. (Pis.’ Mot. for a TRO & Prelim. Inj., Writ of Replevin, Leave to Conduct Expedited Discovery, & Produc. of Docs. & Things [Docket 5]). For the reasons explained below, the plaintiffs’ request for a preliminary injunction on this issue is DENIED. The court DIRECTS the Clerk to refer any remaining discovery matters contained in plaintiffs’ motion [Docket 5] to the Magistrate Judge.

I.Findings of Fact

The plaintiffs JAK Productions, Inc. (“JAK”) and Group Consultants, Inc. (“GCI”) request that the defendant Robert Bayer be preliminarily enjoined from violating the noncompete provision in section 8.a. of his Employment Contract. See infra Part III (discussing scope of order). I need only make findings of fact that are pertinent to this determination. I FIND as follows:

1. JAK performs telemarketing work to fundraise for nonprofit organizations. (See Prelim. Inj. Hr’g Tr. (“Tr.”) [Docket 22], at 92:2-7; Pis.’ Proposed Findings of Fact & Conclusions of Law [Docket 30], at 2).

2. GCI performs “consultant services for nonprofit organizations.” (Tr. [Docket 22], at 91:23-24; see Pis.’ Proposed Findings of Fact & Conclusions of Law [Docket 30], at 2).1

3. JAK and GCI employed Mr. Bayer beginning in February 2010. (See Compl. [Docket 1], at 2; Pis.’ Proposed Findings of Fact & Conclusions of Law [Docket 30], at 2-3; Def.’s Proposed Findings of Fact & Conclusions of Law Re: Request for Prelim. Inj. Sought by Pis., JAK & GCI (“Def.’s Proposed Findings of Fact & Conclusions of Law”) [Docket 31], at 3-4).

4. Mr. Bayer entered into an Employment Contract with JAK and GCI dated [779]*779February 24, 2010. (See Ex. 1 Employment Contract [Docket 1-1], at 1).

5. The Employment Contract included restrictive covenants, including a noncom-petition provision located in section 8.a. (See id. at 3). That provision provides as follows:

8. Restrictive Covenant
a. Geographic Limitation. To the fullest extent permitted by applicable law, for a period of eighteen (18) months after the termination of employment with EMPLOYER (for any. reason, including resignation), Employee, on behalf of any entity in competition with EMPLOYER (whether as a proprietor, partner, joint venturer, stockholder, director, officer, trustee, principal, agent, servant, employee, consultant, or in any other capacity, hereafter referred to as “in any capacity”), may not, directly or indirectly, engage in any fund-raising or telemarketing business within a thirty (30)-mile radius of any call center of EMPLOYER for which Employee, directly or indirectly, is responsible or involved with, during the two (2) years prior to the termination of Employee’s employment with EMPLOYER. Employee understands and agrees that the term “any entity in competition with EMPLOYER” includes any business that engages in fund-raising on behalf of public safety or other civic associations, including but not limited to police and firefighter associations, and/or any business that engages in providing similar inbound and outbound telemarketing services to like clients.

(Id.).

6. While employed, Mr. Bayer did work for JAK’s call centers in Parkers-burg, West Virginia; Fairmont, West Virginia; Portsmouth, Ohio; and Washington, Pennsylvania. (See Tr. [Docket 22], at 18:16-19:10, 19:20-20:7, 92:4-7). The Washington, Pennsylvania, call center is now closed. (See id. at 18:20-22, 92:6-7).

7. In 2014, Mr. Bayer resigned from his employment with JAK and GCI. (See Def.’s Proposed Findings of Fact & Conclusions of Law [Docket 31], at 9). His last day of employment was March 27, 2014. (See Tr. [Docket 22], at 22:14-16; Pis.’ Proposed Findings of Fact & Conclusions of Law [Docket 30], at 3).

8. Mr. Bayer commenced employment with Residential Programs, Inc. (“RPI”) in April 2014. (See Tr. [Docket 22], at 9:18-21,10:2-4).

9. RPI and JAK are direct competitors. (See id. at 16:18-19; Pis.’ Proposed Findings of Fact & Conclusions of Law [Docket 30], at 9).

10. Mr. Bayer performed work from his home for RPI from April 2014 until he began working in RPI’s new call center in Athens, Ohio, on October 20, 2014. (See Tr. [Docket 22], at 14:7-18; Pis.’ Proposed Findings of Fact & Conclusions of Law [Docket 30], at 10).

11. Mr. Bayer’s home is within a 30-mile radius of JAK’s Parkersburg, West Virginia, call centers. (See Tr. [Docket 22], at 44:21-25; Pis.’ Proposed Findings of Fact & Conclusions of Law [Docket 30], at 10).

12. RPI’s call eenter in Athens, Ohio, is within a 30-mile radius of at least one of JAK’s Parkersburg, West Virginia, call centers. (See Tr. [Docket 22], at 45:1-18; Pis.’ Proposed Findings of Fact & Conclusions of Law [Docket 30], at 10; Def.’s Proposed Findings of Fact & Conclusions of Law [Docket 31], at 10).

13. While working from home, Mr. Bayer assisted RPI in opening its Athens, [780]*780Ohio, call center. (See Tr. [Docket 22], at 14:22-15:5; Pis.’ Proposed Findings of Fact & Conclusions of Law [Docket 30], at 9).

14. While working at RPI’s Athens, Ohio, call center, Mr. Bayer performs similar operations work as he did at JAK’s call centers. (See Tr. [Docket 22], at 23:5-8; Pis.’ Proposed Findings of Fact & Conclusions of Law [Docket 30], at 10).

II. Procedural History

The plaintiffs filed their complaint on January 8, 2015 [Docket 1]. They bring actions against Mr. Bayer for breach of contract, conversion, misappropriation of trade secrets, and breach of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(g). The plaintiffs also filed a motion for a temporary restraining order and preliminary injunction, writ of replevin, leave to conduct expedited discovery, and production of documents and things [Docket 5] and filed a memorandum in support [Docket 6].

I set a TRO hearing on this motion for January 9, 2015. (See Pis.’ Notice of Hr’g [Docket 12], at 1). However, the hearing was cancelled upon the request of the parties. Instead, the parties stipulated to the following: (1) Mr. Bayer “is temporarily restrained ... from violating the non-compete (i.e., paragraph 8.a.’s 30-mile radius restriction) obligations as set forth in his Employment Contract until further order of this Court;” (2) Mr. Bayer “is preliminary enjoined from violating his anti-piracy, non-solicit, and confidentiality obligations as set' forth in his Employment Contract ... throughout the pendency of this litigation or until further order of the Court;” (3) Mr. Bayer is preliminary enjoined from using or destroying any of the plaintiffs’ data; (4) Mr. Bayer is preliminarily enjoined from using or disclosing the plaintiffs’ confidential information or trade secrets; (5) Mr. Bayer must return all of plaintiffs’ property; and (6) Mr.

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94 F. Supp. 3d 777, 2015 U.S. Dist. LEXIS 38987, 2015 WL 1400553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jak-productions-inc-v-bayer-wvsd-2015.