E-Telequote Insurance, Inc. v. Mayberry et al

Filing 152

ORDER and PRELIMINARY INJUNCTION re 28 Motion for Preliminary Injunction. Signed by Judge William F. Jung on 5/18/2023. (JMT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
E-TELEQUOTE INSURANCE, INC.,
Plaintiff,
v.

Case No: 8:22-cv-1222-WFJ-JSS

AUBREY MAYBERRY; ALISA
CRAVEY; RICH BUDWELL;
JONATHAN MOORE; MARIO
GUTIERREZ; JOHN TELLEZ;
MYPLANADVOCATE INSURANCE
SERVICES, INC.; and
MYPLANADVOCATE INSURANCE
SOLUTIONS, INC.,
Defendants.
_________________________________/
ORDER AND PRELIMINARY INJUNCTION
This matter comes before the Court on Plaintiff e-Telequote Insurance,
Inc.’s (“Plaintiff” or “ETQ”) Motion for Preliminary Injunction against Defendants
Aubrey Mayberry, Alisa Cravey, Rich Budwell, and Jonathan Moore (collectively,
for purposes of this Order, “Defendants”). Dkt. 28. Defendants filed a response in
opposition, Dkt. 86, to which Plaintiff replied, Dkt. 93. On December 22, 2022, the
Court held an evidentiary hearing. See Dkt. 95. Upon careful consideration, the
Court grants Plaintiff’s Motion for Preliminary Injunction as set forth below.

BACKGROUND
With an emphasis on Medicare, Plaintiff is a digital insurance agency that
sells health insurance policies. Dkt. 124 ¶ 20. Defendants are former employees of
Plaintiff. Id. ¶¶ 12−15. When hired by Plaintiff, each Defendant signed an
agreement containing restrictive covenants. Dkts. 28-2 (Mayberry), 96-1 (Cravey),
96-4 (Moore), 96-8 (Budwell). Among other things, Defendants agreed (1) not to
solicit Plaintiff’s employees or consultants to leave Plaintiff’s employ and (2) not
to use or disclose Plaintiff’s confidential information and trade secrets. See, e.g.,
Dkt. 28-2 at 3, 5.
On January 13, 2023, after working for Plaintiff for nearly three years,
Defendant Budwell executed a separation agreement that included the same
restrictive covenants. Dkt. 96-7. Budwell then accepted a position with Plaintiff’s
competitor, Defendants MyPlanAdvocate Solutions, Inc. and MyPlanAdvocate
Insurance Services, Inc. (collectively, “MPA”). Dkt. 96-9. Shortly after Budwell’s
departure, Defendant Mayberry likewise began working for MPA, despite still
being employed by Plaintiff. Upon his hiring at MPA, Mayberry transferred ETQ
documents from his ETQ work e-mail account to his personal e-mail account.
Dkts. 96-13, 96-14, 96-15, 96-16, 96-17, 96-18, 96-19. Mayberry then transferred
the same documents from his personal e-mail account to his and Budwell’s MPA
work e-mail accounts. Dkt. 96-21. The transferred documents included charts
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identifying Plaintiff’s agents, production statistics, and Medicare resources. See id.
Mayberry thereafter informed MPA’s recruitment team that Defendant Moore
would be submitting an application to work for MPA. Dkt. 96-22. On March 18,
2022, while still working for Plaintiff, Moore received an offer to work for MPA.
Dkt. 96-23. After Moore received that offer, Mayberry informed Plaintiff of his
resignation. Dkt. 96-24.
Brieanna Susaeta, an employee of Plaintiff, credibly testified at the
evidentiary hearing that Mayberry and Budwell encouraged some of Plaintiff’s
employees to quit their positions at ETQ and work for MPA. See Dkt. 113 at
22−28. One such employee was Defendant Cravey, who shared with Ms. Susaeta
her plans to work for MPA. Id. at 26−28. Like Mayberry, Cravey sent several ETQ
documents from her ETQ e-mail account to her personal email account before
transferring them to the MPA work e-mail accounts of herself, Mayberry, and
several other high-ranking MPA employees. Dkt. 96-28. These documents
included Plaintiff’s internal sales call scripts, sales call instructions, training
documents, and other internal guidance documents. See id.
On May 26, 2022, Plaintiff initiated this action after learning of Defendants’
alleged conduct. Dkt. 1. Plaintiff brings several claims against Defendants,
including breach of contract and misappropriation of trade secrets, see Dkt. 124. At
this stage, Plaintiff moves for a preliminary injunction. Dkt. 28.
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LEGAL STANDARD
To obtain a preliminary injunction, a movant must satisfy four prerequisites:
(1) a substantial likelihood of success on the merits; (2) a substantial threat of
irreparable injury if injunctive relief is not granted; (3) that the threatened injury to
the plaintiff outweighs the threatened harm that the injunction may cause the
defendant; and (4) that granting the injunction would not disserve the public
interest. Am. Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407, 1410
(11th Cir. 1998). “A preliminary injunction is an extraordinary and drastic remedy
not to be granted unless the movant clearly established the burden of persuasion as
to each of the four prerequisites.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.
2000) (internal quotes and citation omitted).
ANALYSIS
Stressing an urgent need to protect its legitimate business interests, Plaintiff
moves for a preliminary injunction enjoining Defendants from soliciting Plaintiff’s
employees and using or disclosing confidential information and trade secrets in
violation of Defendants’ restrictive covenant agreements.1 Dkt. 28. The Court
considers whether Plaintiff has established its burden of persuasion as to each of
the four prerequisites to obtaining a preliminary injunction.

1

While Plaintiff initially moved for a preliminary injunction that would also enforce Defendants’
non-compete agreements, see Dkt. 28, Plaintiff has since abandoned that request, Dkt. 151 at 2.

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I.

Substantial Likelihood of Success on the Merits
Concerning the first prerequisite, the Court finds that Plaintiff has

demonstrated a substantial likelihood of success on the merits of at least one of its
claims. A successful breach of contract claim requires a plaintiff to show (1) a
valid contract, (2) a material breach of that contract, and (3) damages. Abbott
Lab’ys, Inc. v. Gen. Elec. Cap., 765 So. 2d 737, 740 (Fla. 5th DCA 2000). Here,
Plaintiff has identified what appear to be valid, enforceable restrictive covenant
precluding solicitation of Plaintiff’s employees and misappropriation of Plaintiff’s
confidential information and trade secrets. Based on credible testimony and
evidence presented at the evidentiary hearing, Plaintiff has demonstrated that
Defendants likely violated these covenants by soliciting Plaintiff’s employees to
work at MPA and transferring Plaintiff’s internal documents to themselves and
others working at MPA, thereby causing harm to Plaintiff’s legitimate business
interests. Accordingly, Plaintiff has shown a substantial likelihood of success on
the merits of at least one claim warranting injunctive relief.
II.

Irreparable Harm
The Court also finds that Plaintiff has shown a substantial threat of

irreparable injury absent a preliminary injunction. “An injury is ‘irreparable’ only
if it cannot be undone through monetary remedies.” Arthur J. Gallagher Serv. Co.
v. Egan, 514 F. App’x 839, 843 (11th Cir. 2013) (citation omitted). Under Florida
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law, the violation of a restrictive covenant creates a rebuttable presumption of
irreparable injury. Fla. Stat. § 542.335(1)(j). Given that Plaintiff has demonstrated
a substantial likelihood of success on the merits, there exists a rebuttable
presumption of irreparable injury. See TransUnion Risk & Alt. Data Sols., Inc. v.
MacLachlan, 625 F. App’x 403, 406−07 (11th Cir. 2015). Defendants have not
rebutted this presumption. Plaintiff has therefore satisfied the second prerequisite
to obtaining a preliminary injunction.
III.

Balancing of Harms

As to the balancing of harms, the Court finds that the relative harms to the
parties weigh in favor of issuing a preliminary injunction. At this stage, the relief
that Plaintiff seeks would merely enforce two restrictive covenants to which
Defendants previously agreed to be bound, thereby enjoining Defendants from (1)
soliciting Plaintiff’s employees and (2) using or disclosing Plaintiff’s confidential
information and trade secrets. Notably, Plaintiff does not presently seek to enforce
Defendants’ non-compete agreements, meaning that Defendants would not
presently be precluded from working for Medicare-focused companies. See Dkt.
142-1 at 8; Dkt. 151 at 2. There would be little, if any, harm to Defendants under
these terms. Conversely, without a preliminary injunction, Plaintiff would be
harmed by the solicitation of its employees and the misappropriation of
confidential information. Plaintiff has thus met the balancing of harms prerequisite.
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IV.

Public Interest

Finally, the requested preliminary injunction would not be adverse to the
public interest. In fact, the public interest is served through the enforcement of
contractual rights, including those found within restrictive covenants signed by
employees. See, e.g., Hilb Rogal & Hobbs of Fla., Inc. v. Grimmel, 48 So. 3d 957,
959−62 (Fla. 4th DCA 2010) (explaining that the public interest is served through
the enforcement of restrictive covenants); Pitney Bowes Inc. v. Acevedo, No. 821808-CIV, 2008 WL 2940667, at *6 (S.D. Fla. July 28, 2008) (“[T]he public has
a cognizable interest in the protection and enforcement of contractual rights.”); Se.
Mech. Servs., Inc. v. Brody, No. 8:08-cv-1151-T-30EAJ, 2008 WL 4613046, at
*16 (M.D. Fla. Oct. 15, 2008) (“[A] preliminary injunction would affirmatively
serve the public interest by protecting business from misappropriation of
confidential information and resources.”). With this understanding, Plaintiff has
established the fourth and final prerequisite to obtaining a preliminary injunction.
PRELIMINARY INJUNCTION
Based on the foregoing, Plaintiff’s Motion for Preliminary Injunction, Dkt.
28, is GRANTED as follows:
1. Defendants 2 will not use, disclose, or share any of Plaintiff’s confidential

2

The Court reiterates that, for purposes of this Order, “Defendants” refers to Aubrey Mayberry,
Alisa Cravey, Rich Budwell, and Jonathan Moore.

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information and trade secrets, including:
a. information related to Plaintiff’s operations, such as seminar or
teaching materials, templates, techniques, models, call flows,
scripts, guidance materials, and similar documents;
b. employee personnel information, such as compensation, bonus
structures, training, contact information;
c. Plaintiff’s financial status, billing systems, financial reports,
accounting information, and financial plans; and
d. documents that may contain or be derived from confidential
information, works, or inventions or that may be connected with or
derived from Defendants’ employment with Plaintiff.
2. By June 2, 2023, Defendants shall (a) provide a declaration to Plaintiff
identifying any of Plaintiff’s confidential information or trade secrets that
are, or have been, in Defendants’ possession, custody, or control since
leaving Plaintiff’s employ, and (b) confer with Plaintiff about returning or
destroying such materials.
3. Defendants shall not solicit, request, recruit, cause, encourage, or suggest
any of Plaintiff’s employees or consultants cease their employment or
consulting relationships with Plaintiff to work for any business competing
with Plaintiff.
4. This Preliminary Injunction is binding on Defendants and inures to the
benefit of Plaintiff, its parent, assigns, and successors.
5. The Court finds that no bond is required, as there is no evidence that
Defendants will suffer any economic harm from the issuance of this

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preliminary injunction. See Thursday LLC v. Klhip Inc., 8:17-CV-1587-T36AEP, 2017 WL 6947456, at *2 (M.D. Fla. Dec. 11, 2017).
6. This Preliminary Injunction shall take effect immediately and will remain
in effect until the entry of final judgment or an order indicating otherwise.
DONE AND ORDERED at Tampa, Florida, on May 18, 2023.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record
Defendants, pro se

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