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UNPUBLISHED PER CURIAM OPINION filed.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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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