Talk Fusion, Inc. v. Ulrich et al

Filing 68

ORDER adopting 58 Report and Recommendation and granting 2 Plaintiff Talk Fusion's Motion for Preliminary Injunction. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 7/11/2011. (CR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TALK FUSION, INC.,
a Florida Corporation,
Plaintiff,
v.

CASE NO:

8:11-cv-1134-T-33AEP

J.J. ULRICH, et al,
Defendants.
_______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff
Talk Fusion's Motion for Preliminary Injunction (Doc. # 2).
Magistrate Judge Anthony E. Porcelli has filed his report
recommending that the motion be granted as set forth in the
Report and Recommendation (Doc. # 58).

All parties were

furnished copies of the Report and Recommendation and were
afforded the opportunity to file objections pursuant to 28
U.S.C. § 636(b)(1).

Talk Fusion filed an Objection to the

Report and Recommendation (Doc. # 59), and Defendants filed a
Response to the Objection (Doc. # 63).
After conducting a careful and complete review of the
findings and recommendations, a district judge may accept,
reject

or

modify

recommendation.

the
28

magistrate

U.S.C.

§

judge’s

636(b)(1);

report

and

Williams

v.

Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert. denied,
459 U.S. 1112 (1983).

In the absence of specific objections,

there is no requirement that a district judge review factual
findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n. 9
(11th Cir. 1993), and the court may accept, reject or modify,
in whole or in part, the findings and recommendations.
U.S.C. § 636(b)(1)(C).

28

The district judge reviews legal

conclusions de novo, even in the absence of an objection. See
Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir.
1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32
(S.D. Fla. 1993), aff’d, 28 F.3d 116 (11th Cir. 1994).
Talk Fusion objects to the Report and Recommendation to
the extent that it does not enjoin Defendants from recruiting
Talk Fusion Associates who joined Talk Fusion after May 9,
2011, and objects to and requests that the Court allow a
computer expert to assist Talk Fusion's counsel in the review
of any customer lists provided by Defendants Ulrich and Read.
Defendants respond that the limitation on the injunction
to preclude Ulrich and Read from recruiting Talk Fusion
Associates who joined before May 9, 2009 was a sound finding
based upon the fact that Defendants Ulrich and Read would only
be privy to Talk Fusion's Associates until the day they were
terminated.

Defendant Ulrich also requests that the Court
2

allow the parties to appoint an independent third party to
review his Confidential Customer List as well as Talk Fusion's
list of "Active" Associates, to compare the lists and to
report the findings in order to expedite the process and
prevent

any

partiality

on

behalf

of

Talk

Fusion's

representatives.
Upon consideration of the Report and Recommendation of
the Magistrate Judge, all objections thereto and responses to
objections timely filed by the parties and upon this Court's
independent examination of the file, it is determined that the
Magistrate

Judge's

Report

and

Recommendation

should

be

adopted, Talk Fusion's objection regarding the May 9, 2009
limitation overruled, and Defendants' suggestion regarding a
third

party

to

incorporated.

review
The

the

Court,

Confidential

however,

Customer

declines

List

Defendants'

suggestion to further restrict the preliminary injunction to
"Active" members who joined Talk Fusion before May 9, 2011.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

The Magistrate Judge's Report and Recommendation
(Doc.

#

58)

is

adopted

and

incorporated

by

reference in this Order of the Court.
(2)

Plaintiff

Talk

Fusion's
3

Motion

for

Preliminary

Injunction (Doc. # 2) is GRANTED as follows:
A.

Mr. Ulrich and Mr. Read are enjoined until
November 9, 2011 from recruiting Talk Fusion
Associates for any other network marketing
business, unless:
i.

An Associate was personally sponsored by
the individual seeking to conduct network
marketing; or

ii.

An Associate joined Talk Fusion after May
9, 2011.

B.

If

Mr.

Ulrich

and/or

Mr.

Read

wishes to

conduct network marketing business in which
prohibited Associates may be recruited, albeit
unintentionally, Mr. Ulrich and/or Mr. Read
shall supply the prospective Customer List for
screening to an independent computer expert
mutually selected by the parties.

Talk Fusion

shall supply the necessary information to the
independent computer expert to allow for a
comparison of the lists and a determination of
any overlapping.

The Customer List and the

information supplied by Talk Fusion shall only
be viewed by the independent computer expert
4

and not provided by the independent computer
expert to opposing counsel.

The independent

computer expert shall have seven (7) days to
notify

the

parties

of

any

conflicting

or

overlapping names to be removed by Mr. Ulrich
and/or Mr. Read from a given network marketing
operation.
C.

WowWe shall be enjoined from aiding Mr. Ulrich
or Mr. Read in the solicitation of prohibited
Talk Fusion Associates, or soliciting Talk
Fusion Associates in concert with Mr. Ulrich
or Mr. Read.

D.

The Defendants shall be enjoined from using or
disclosing

Talk

Fusion’s

confidential

and

proprietary information and trade secrets, and
shall immediately return any such information
if in their possession.
DONE and ORDERED in Chambers in Tampa, Florida, this 11th
day of July, 2011.

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Copies:
All Counsel of Record

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