JAK Productions, Inc. v. Robert Bayer
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:15-cv-00361 Copies to all parties and the district court/agency. [999664372].. [15-1330]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1330
JAK PRODUCTIONS, INC.; GROUP CONSULTANTS, INC.,
Plaintiffs - Appellants,
v.
ROBERT BAYER,
Defendant - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Joseph R. Goodwin,
District Judge. (2:15-cv-00361)
Submitted:
August 31, 2015
Before DUNCAN and
Circuit Judge.
HARRIS,
Decided:
Circuit
Judges,
September 22, 2015
and
DAVIS,
Senior
Affirmed by unpublished per curiam opinion.
Richard M. Wallace, LITTLER MENDELSON, P.C., Morgantown, West
Virginia; David J. Carr, Paul C. Sweeney, ICE MILLER LLP,
Indianapolis, Indiana, for Appellants.
Michael B. Hissam,
Isaac R. Forman, BAILEY & GLASSER LLP, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
JAK
Productions,
(collectively,
JAK)
denying
request
their
Inc.,
appeal
for
and
from
a
Group
the
Consultants,
district
preliminary
Inc.,
court’s
injunction
order
in
their
civil action against Robert Bayer under West Virginia law and
the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(g) (2012).
The district court denied JAK’s request for the issuance of a
preliminary injunction with respect to a restrictive covenant at
section 8.a. of an employment contract between Bayer and JAK. *
We affirm.
“[W]here a preliminary injunction is under an interlocutory
examination, determining whether the district court abused its
discretion
‘is
the
extent
of
our
appellate
inquiry.’”
Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor &
City Council of Baltimore, 721 F.3d 264, 290 (4th Cir. 2013)
(en banc) (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 934
(1975)).
preliminary
As
long
as
injunction
the
district
standard,
court
made
no
“applied
clearly
a
correct
erroneous
findings of material fact, and demonstrated a firm grasp of the
*
This section restricts Bayer—who oversaw and managed
certain of JAK’s telemarketing call centers when he was employed
by
JAK—from
“directly
or
indirectly,
engag[ing]
in
any
fund-raising or telemarketing business within a thirty (30)-mile
radius” of any call center of JAK’s for a period of 18 months
after the termination of his employment.
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legal principles pertinent to the underlying dispute,” no abuse
of discretion has occurred.
Centro Tepeyac v. Montgomery Cnty.,
722 F.3d 184, 192 (4th Cir. 2013) (en banc).
underlying
the
district
court’s
denial
Factual findings
of
a
preliminary
injunction are reviewed for clear error; legal conclusions are
reviewed de novo.
Dewhurst v. Century Aluminum Co., 649 F.3d
287, 290 (4th Cir. 2011).
A
plaintiff
seeking
preliminary
injunctive
relief
must
demonstrate: “[1] that he is likely to succeed on the merits,
[2] that he is likely to suffer irreparable harm in the absence
of preliminary relief, [3] that the balance of equities tips in
his
favor,
interest.”
and
[4]
that
an
injunction
is
in
the
public
Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008).
“[A]ll four requirements must be satisfied” to
obtain the “extraordinary remedy” of a preliminary injunction.
Real
Truth
About
Obama,
Inc.
v.
FEC,
575
F.3d
342,
345-46
(4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010).
With
respect
preliminary
to
the
injunction
first
must
prong,
“the
demonstrate
by
party
‘a
seeking
clear
the
showing’
that, among other things, it is likely to succeed on the merits
at trial.”
Id. at 345 (quoting Winter, 555 U.S. at 22).
We conclude after review of the record and the parties’
briefs that the district court did not abuse its discretion in
denying JAK’s request for a preliminary injunction on the basis
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that JAK failed to demonstrate a likelihood of success on the
merits.
The district court determined that section 8.a. of the
employment
Virginia
contract
law
and
was
thus
facially
not
unreasonable
enforceable,
see
under
West
Huntington
Eye
Assocs., Inc. v. LoCascio, 553 S.E.2d 773, 780 (W. Va. 2001);
Reddy v. Cmty. Health Found. of Man, 298 S.E.2d 906, 910-11,
915, 918-19 (W. Va. 1982), and JAK’s arguments on appeal do not
establish reversible error in this determination.
Contrary to
JAK’s assertion, the district court addressed its argument that
section 8.a. pertained to recruitment activities and rejected it
based on the section’s plain language.
JAK’s
contention
that
this
ruling
We reject as unexplained
was
error
because
Bayer’s
testimony and documentary evidence received at the hearing on
the
preliminary
injunction
interpretation it advances.
relevant
law
JAK’s
request
support
the
contract
We also reject as unsupported by
contention
that
section
8.a.
should
be
construed as limiting recruitment activities.
We
therefore
We dispense
with
contentions
are
affirm
oral
the
argument
adequately
district
because
presented
in
court’s
judgment.
the
facts
and
the
materials
legal
before
this court and argument would not aid the decisional process.
AFFIRMED
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