Rollins Burdick Hunter of Wisconsin, Inc. v. Lemberger

105 F.R.D. 631, 2 Fed. R. Serv. 3d 601, 1985 U.S. Dist. LEXIS 20113
CourtDistrict Court, E.D. Wisconsin
DecidedMay 6, 1985
DocketNo. 83-C-761
StatusPublished
Cited by2 cases

This text of 105 F.R.D. 631 (Rollins Burdick Hunter of Wisconsin, Inc. v. Lemberger) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rollins Burdick Hunter of Wisconsin, Inc. v. Lemberger, 105 F.R.D. 631, 2 Fed. R. Serv. 3d 601, 1985 U.S. Dist. LEXIS 20113 (E.D. Wis. 1985).

Opinion

DECISION AND ORDER

WARREN, District Judge.

BACKGROUND

This action was initiated on June 10, 1983, when the plaintiff filed its original complaint, alleging principally that the defendant, a former employee, had breached his agreement not to compete by soliciting and eventually securing the account of one of the plaintiff’s customers following his termination from the plaintiff’s employ. Specifically, the complaint states that, in [632]*632consideration for the defendant’s continued employment with the plaintiff, the parties had, on or about January 24, 1981, entered into an “Agreement Not To Compete”, the relevant provision of which is as follows:

If Employee terminates his employment with Agency for any reason or if Agency terminates his employment for cause, Employee agrees that he will not, directly or indirectly (through partners, agents, employers, employees or any other persons acting for Employee) for a period which is the lesser of (i) two years or (ii) Employee’s period of employment from the date of this Agreement until termination, solicit, contact or otherwise do any competitive business with any individual, firm, corporation, partnership, organization or association who was a customer or client of Agency during a period which is the lesser of (i) two years or (ii) Employee’s period of employment from the date of this Agreement until termination.

Exhibit A to Plaintiff's Complaint at 1 (Paragraph 2) (January 24, 1981). The plaintiff further alleges that, following his termination of employment as of April 30, 1983, the defendant solicited one of the plaintiff’s customers for the purpose of securing that customer’s business account; that the customer subsequently terminated its relationship with the plaintiff, causing it certain financial losses in excess of $10,-000.00; and, significantly, that despite the plaintiff’s demands to cease and desist such solicitation activities, the defendant continues to compete with his former employer, in violation of the non-competition agreement of January 24, 1981.

Framing its complaint under theories of breach of contract, tortious interference with a contractual relationship, and unjust enrichment, the plaintiff seeks judgment in the amount of those commissions, monies, and profits purportedly derived by the defendant from his wrongful conduct, along with such other monetary damages as the plaintiff may have incurred as a result of the defendant’s alleged violation of the agreement not to compete. By its ad dam-num clause, the plaintiff also seeks preliminary and permanent injunctive relief, preventing the defendant and his agents “from soliciting, contacting or otherwise doing any competitive business with any individual, firm, corporation, partnership, organization or association which was a customer or client of the Agency during the term of defendant’s employment with the Agency until after April 30, 1985.” Plaintiff’s Complaint at 5 (June 10, 1983).

By its answer of July 19, 1983, the defendant admits several of the foundational, factual allegations in the complaint, denies all substantive charges set forth therein, and raises some eleven affirmative defenses—among them, that the January 24, 1981 agreement not to compete is unsupported by sufficient consideration and was entered into under duress; that the plaintiff is es-topped from asserting any rights under that agreement based on its consent to and approval of the defendant’s employment with a competitive general insurance agency—namely, North Star Casualty Services, Inc.—consent and approval upon which the defendant detrimentally relied; and that, in any event, the second paragraph of the non-competition agreement is overly broad, unduly restrictive, and constitutes an unreasonable restraint of trade and competition. The defendant further alleges affirmatively that the plaintiff’s complaint fails to state a claim for relief, that the Court lacks personal jurisdiction over him as a party to this action, and that the lawsuit is improperly venued in this federal district.

The defendant also counterclaims against the plaintiff for damages in the amount of $1,600.00, purportedly representing the unpaid balance of the defendant’s salary for the month of April of 1983, pursuant to a certain oral agreement between the parties for payment and receipt of employment services. In addition to his request for judgment on the counterclaim, the defendant seeks dismissal of the complaint against him and an award of those costs and reasonable attorneys’ fees incurred in the defense of this matter.

[633]*633On August 3, 1983, the plaintiff filed its reply to the defendant’s counterclaim, denying all material allegations therein and articulating three affirmative defenses of its own—namely, that the alleged agreement upon which the counterclaim moves is unsupported by sufficient consideration, that the defendant has failed to mitigate his claim to damages, and that the income he earned as an employee of North Star Casualty Services, Inc. during the month of April of 1983 should be offset against any ultimate award of damages. The plaintiff requests judgment dismissing the defendant’s counterclaim on the merits and awarding it those expenses attendant upon its defense.

Pursuant to the ad damnum clause of the original complaint, the plaintiff, on September 26, 1983, moved, under Rule 65(a) of the Federal Rules of Civil Procedure, “to enjoin defendant from further and continued violation of his non-competition agreement with plaintiff and to restrain defendant from further tortious interference with the plaintiff’s contractual relationships with its customers.” Plaintiff’s Motion for Preliminary Injunction at 1 (September 26, 1983). Accompanying that motion was a supporting memorandum of law and the affidavits of Franklyn T. Thatcher, the president of that division of the plaintiff for which the defendant formerly worked, and of plaintiff’s counsel, Jeffrey P. Clark, who directs the Court’s attention to relevant portions of the defendant’s deposition transcript.

On October. 12, 1983, the defendant filed its memorandum in opposition to the plaintiff’s Rule 65(a) motion, accompanied by the affidavits of the defendant himself and of Allin M. Karls, president of North Star Casualty Services, Inc.—the corporation that apparently employed the defendant following his termination with the plaintiff. Finally, on October 24, 1983, the plaintiff filed a reply brief in support of its petition for preliminary injunctive relief; that memorandum was supported by a supplemental affidavit of Franklyn T. Thatcher, in principal response to the affidavits offered by the defendant in opposition.

Following completion of the briefing schedule on the plaintiff’s request for in-junctive relief, the Court, on November 9, 1983, conducted a conference call with counsel for both parties and, based on their representations at that time, scheduled a hearing for December 2, 1983. As a result of conflicts with the Court’s criminal docket,' the hearing was eventually rescheduled for March 8, 1984. However, in the week immediately preceding that hearing date, the parties filed and served a series of letters, affidavits, and memoranda, all with respect to the impact on the pending motion for preliminary relief of the defendant’s acceptance of a new position with the Great Global Assurance Company in Scottsdale, Arizona.

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Bluebook (online)
105 F.R.D. 631, 2 Fed. R. Serv. 3d 601, 1985 U.S. Dist. LEXIS 20113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rollins-burdick-hunter-of-wisconsin-inc-v-lemberger-wied-1985.