Advanced Data Processing, Inc. v. Hill

Filing 26

ORDER DISMISSING in part as moot and DENIED in part as follows: the Motion is DISMISSED as moot to the extent that it seeks a temporary restraining order and a preliminary injunction requiring the return of its property, and it is DENIED insofar as it requests a preliminary injunction preventing the solicitation of its actual and prospective clients re: Plaintiff's 11 Motion for Temporary Restraining Order and Preliminary Injunction. Signed by Chief Judge Lisa G. Wood on 4/14/2016. (csr)

1n the Sniteb Statto Dttritt Court
for the boutbern flitritt of deorgia
runMuitk JDibiion
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ADVANCED DATA PROCESSING,
INC.,

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Plaintiff,

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V.

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NICOLE HILL,

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CV 216-043

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Defendant.

ORDER
Presently before the Court is Plaintiff Advanced Data
Processing, Inc.'s ("Plaintiff") Motion for Temporary
Restraining Order and Preliminary Injunction. Dkt. No. 11. The
Court held an evidentiary hearing on this Motion on April 4,
2016, and permitted follow-up briefing. Dkt. No. 19. Upon due
consideration, Plaintiff's Motion (dkt. no. 11)

is DISMISSED in

part as moot and DENIED in part as follows: the Motion is
DISMISSED as moot to the extent that it seeks a temporary

restraining order and a preliminary injunction requiring the
return of its property, and it is DENIED insofar as it requests
a preliminary injunction preventing the solicitation of its
actual and prospective clients.

AO 72A
(Rev. 8/82)

FINDINGS OF FACT

Plaintiff, a wholly owned subsidiary of Intermedix
Corporation ("Intermedix"), offers services to emergency medical
services (EMS") providers. Dkt. No. 19. Plaintiff's customers
include privately held or publicly traded ambulance companies,
state and municipal agencies that supply ambulance transport,
and public hospital authorities that operate this service. Id.
The core of Plaintiff's business is to provide revenue cycle
management ("RCM") services, or outsourced medical billing
services, to these entities. Id.
Defendant Nicole Hill ("Defendant") worked for Plaintiff
from January 2014 until approximately March 17, 2016.

Id. She

served as a sales representative and was assigned to a territory
consisting primarily of the southeastern United States. Dkt.
No. 20, 4:3-4.

Her role as a sales representative was to build

relationships with potential customers and ultimately gain their
business. Dkt. No. 19.
I.

Employee Training and Contracts
Plaintiff gives each new employee a packet of "onboarding

papers" that contains the following: (1) the Intermedix
Standards of Business Ethics and Conduct ("Standards of
Conduct");

(2)

an At Will and Policy Certification; and (3) a

confidentiality and nonsolicitation agreement. Id. The

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Standards of Conduct includes the following language under the
heading, "Confidentiality":
Due to the nature of Intermedix's business and the
sensitive information involved, the maintenance of
confidentiality and security of protected health
information (PHI) is one of the most important duties
of each and every Team Member. Not only is it the
right thing to do, it is a legal requirement.

B.

CLIENT INFORMATION

Files and information related to clients of the
Company are the sole property of the Company
and/or the client. This includes but is not
limited to:
• Billing Contracts
• Contracts
• Hospital Contracts
• Municipality/Government Contracts
• Insurance Plan Contracts
• Employer Contracts
• Provider Files
• Provider Numbers
• Fee Schedules
Team Members are required to maintain the
privacy, confidentiality, security and integrity
of client information and use such information
only for the purpose of performing related
duties.
C.

TECHNOLOGY, INTELLECTUAL PROPERTY AND OTHER
COMPANY INFORMATION

The backbone of Intermedix as a competitive
business is its ability to develop and use
technology in day-to-day operations. Failure to
maintain control of this technological edge could
cause the Company irreparable harm. Team Members
are responsible for guarding Company technology
against unauthorized disclosure. This applies to
proprietary and private data developed or
purchased by the Company or entrusted to the
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Company by clients or suppliers. These
restrictions apply whether the information is in
written or electronic form or is simply known by
Team Members.
Intermedix assets also include confidential
information relating to the present or planned
business of the Company which has not been
released publicly by authorized Intermedix
representatives. Confidential information
includes, for example:
•
•
•
•
•
•
•

Pricing
Inventions
Financial Data
Trade Secrets and Know-how
Marketing and Sales Programs
Research and Development Information
Customer, Patient, and Supplier
Information
• Team Member Information
• Corporate Objectives, Strategies and
Tactics
Other Company information, such as personnel and
payroll records, accounting information,
passwords, security data, are subject to these
confidentiality provisions. Team Members must
not disclose confidential information to anyone
outside the Company unless there exists a
legitimate need for the information in order to
work with Intermedix and all necessary entities
have been properly authorized by management to
receive such information. This obligation
continues after a Team Member's termination of
employment with Intermedix.
Innovations and ideas concerning products or
manufacturing processes may be eligible for
patent, copyright, trademark or other trade
protection. Consult Intermedix Senior Management
with questions.
Team Members, upon joining Intermedix, are
required to sign an agreement under which they,
as an employee of Intermedix, assume specific
obligations relating to the treatment of Company
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and client confidential information and protected
health information (PHI). Violations may result
in immediate termination of employment and
possible further legal action.
The obligations of confidentiality and non-disclosure
set forth in these Standards are in addition to, and
are not in lieu of, any confidentiality obligations to
which a Team Member may be subject under any
applicable laws, rules, and regulations or pursuant to
any employment or non-disclosure agreement entered
into between such Team Member and Intermedix.
Dkt. No. 11, Ex. 1, pp. 10-12.
The At Will and Policy Certification requires that the
employee acknowledge, in part, that she "ha[s] access to and
ha[s] read, understand[s] and will abide by Intermedix's
policies and procedures .

. , including the Intermedix

Standards of [Conduct] ." Dkt. No. 11, Ex. 2. The employee must
sign this and the other documents in the onboarding packet and,
within the first month of employment, complete a training course
on the company's policies. Dkt. No. 19.
Upon joining the company, Plaintiff signed every paper in
her oxthoarding packet other than the confidentiality and
nonsolicitation agreement, on which she filled in her name at
the top but did not include her signature in the space provided
at the bottom. Id. Nevertheless, Defendant's onboarding packet
was placed in her personnel file and—in what Plaintiff's Vice
President of EMS Sales, William Ryan ("Ryan"), and its General
Counsel and Chief Compliance Officer, Melissa ("Leigh"),

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categorize as an "oversight" by the company—Defendant was never
required to sign the confidentiality and nonsolicitation
agreement as a condition to her employment. Id. As Leigh
recognized at the hearing on April 4, 2016, Defendant signed the
At Will and Policy Certification agreeing to be bound by the
Confidentiality provision in the Standards of Conduct—which
limits the use of confidential information to Plaintiff's
business purposes only and which applies postemployment—but
never executed any document mentioning solicitation or placing
any time limitation on her confidentiality obligations. Id. In
each year following her hiring, Defendant signed a Standards
Agreement certifying only her continued assent to the terms of
the Standards of Conduct. See Dkt. No. 11, Ex. 3.
II. Business Development

Plaintiff currently has 330 clients across the United
States but has identified approximately 11,000 of the 25,000 EMS
providers nationwide as "qualified prospects." Dkt. No. 19. A
"qualified prospect" is an EMS provider that Plaintiff has
researched or met and determined to be a good candidate for its
services, and that will be able to contract within the next one
to three years. Id. Ryan, who also testified at the hearing,
estimated that roughly 3,000 of Plaintiff's 11,000 qualified
prospects are located in the southeastern states that made up
Defendant's sales territory. Id.
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To identify these qualified prospects, Plaintiff, through
Defendant and other sales agents, has engaged in the following
process:
. Plaintiff learns of EMS providers through its contacts,
at trade shows, and on the Internet. Id. Some EMS
providers put out a request for proposal ("RFP"), which
is a public solicitation to obtain bids for RCM services
from vendors such as Plaintiff. Dkt. No. 20, 5:6-11.
. To find more information about a given EMS provider,
Plaintiff may look at the provider's Web site, which
sometimes lists its number of transports and other
information regarding its business. Dkt. No. 19. For
some providers, Plaintiff makes an open-records request
to obtain data concerning the entity's current contract
for services with another vendor, communications with the
vendor, run reports, and financial reports. Id. For
information not in the public records, Plaintiff cold
calls or otherwise gets in touch with the EMS provider
and asks for a meeting to discuss its level of
satisfaction with its current vendor, its volume of
transport services, and other information. Dkt. No. 20,
5:12-21.
• Once Plaintiff gathers this data, it runs the data
through a financial model that it has designed to take
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into account a variety of factors—such as whether the
provider is profiting and whether it is billing
compliantly—and ultimately determine how much Plaintiff
could charge the entity for its services and whether it
would be profitable for Plaintiff to pursue its business.
Dkt. No. 19.
After identifying a qualified prospect, Plaintiff seeks to
develop a relationship with the entity through regular contact
and meetings. Id. If the entity is currently under contract
with one of Plaintiff's competitors, Plaintiff attempts to build
a relationship during the one- to two-year period before the
expiration of that contract, so that Plaintiff may gain the
entity's business after that time. Id. As their relationship
builds, a qualified prospect often shares information with
Plaintiff that is not available to the general public, such as
details about its satisfaction with its current vendor or its
intention to seek a sole-source contract in the future, and
Plaintiff keeps logs of this information. Id.
III. Defendant's Departure
On February 23, 2016, Defendant informed Ryan that EMS
Management and Consultants, Inc. ("EMS/MC"), Plaintiff's direct
competitor in the RCM-services industry, had offered her a job.
Id. Although Plaintiff endeavored to incentivize Defendant to
stay in its employ, Defendant later informed Ryan and other
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company representatives that she was leaving the company in an
e-mail dated March 17, 2016. Dkt. No. 11, Ex. 4, p. 2.
As is customary upon an employee's departure, Ryan logged
into Defendant's company e-mail account to review the status of
her correspondence with clients. Dkt. No. 19. Ryan discovered
that Defendant had sent certain documents from her company
account to her personal e-mail address in the weeks prior to her
separation, including the following:
. a slideshow presentation that Defendant had prepared and
presented to management listing each qualified prospect in
her territory with its potential dollar value (as
determined by Plaintiff's financial model), due date for
any RFP, date on which Plaintiff could close on its
business, motivation in contracting for services, and key
contact person, id.; see also dkt. no. 17, ex. 2, pp. 816;
a "rollout pipeline" spreadsheet displaying the clients
with whom Plaintiff had recently contracted and was
experiencing issues in the early stages of execution, dkt.
no. 19; see also dkt. no. 17, ex. 3, pp. 2-5; and
• a document outlining a comprehensive sales strategy that
Plaintiff had prepared with the help of a consulting firm
and was about to introduce to its sales people across the
country, dkt. no. 19; see also dkt. no. 17, ex. 5.
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According to Ryan, Defendant did not need to forward these
e-mails to her personal account to access the attached documents
outside of the workplace, because the company has a secured
server that is accessible remotely and even by mobile phone.
Dkt. No. 19. Defendant, however, maintains that she forwarded
each of the e-mails for one of several reasons: (1) because the
e-mail thread contained an accolade from a supervisor that she
wanted to keep in an "accolades" folder on her personal
computer;

(2) because the attachment included information

relevant to her earning of commissions and thus her ability to
make her upcoming housing and other personal bill payments; and
(3) because she preferred to work on documents using the
operating system on her personal computer. Dkt. No. 20, 9:1821, 11:14-21,

13:10-11. Plaintiff disputes the "accolade"

justification, insisting that Defendant sent a blank e-mail with
the document at issue attached rather than forwarding the e-mail
thread that included her supervisor's remarks. Dkt. No. 21, p.
7 n.3 & Ex. 1, ¶ 5.

Ryan also suspected, following Defendant's departure, that
she had contacted two of its current customers on behalf of
EMS/MC. Dkt. No. 19. According to Defendant, however, it was
the customers that had called her and inquired about meeting to
discuss business opportunities with her new company. Dkt. No.
20, 14:17-25.

AO 72A
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Leigh sent an e-mail to Defendant on March 18,
10

2016, reminding her of her agreement to abide by the
Confidentiality provision in the Standards of Conduct following
her employment. Dkt. No. 11, Ex. 5.
IV. Plaintiff's Action for Injunctive Relief

Plaintiff filed a verified Complaint against Defendant on
March 29, 2016, seeking injunctive relief on grounds of breach
of contract, misappropriation of trade secrets, and tortious
interference with business relations. Dkt. No. 1. Along with
the Complaint, Plaintiff made the instant Motion for a temporary
restraining order and preliminary injunction requiring that
Defendant return her company computer and the documents that she
sent to her personal e-mail account, and to refrain from
contacting Plaintiff's current and prospective clients. Dkt.
Nos. 8, 11. Plaintiff served Defendant with a copy of the
Complaint and a Summons on March 30, 2016. Dkt. No. 12.
The Court held a hearing on Plaintiff's Motion on April 4,
2016, at which both parties were present and represented by
counsel. Dkt. No. 19. The parties and their counsel conferred
at the hearing and agreed that Defendant would return the
computer and written documents, give copies of all electronic
documents to her counsel, and permanently delete the electronic
documents from her personal e-mail account and computer. Id.
The parties further agreed that the only remaining issue with

:ii

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respect to Plaintiff's Motion is the request to enjoin Defendant
from soliciting its actual and prospective clients. Id.
Though absent from both the Complaint and Motion, Plaintiff
clarified the parameters of the requested injunctive relief at
the hearing and in its posthearing brief: the injunction against
solicitation would be limited to the clients and qualified
prospects listed in the documents that Defendant transmitted to
her personal e-mail account, and—while the permanent injunction
sought in the Complaint is intended to last for a period of one
to two years, id.—the preliminary injunction would enjoin
solicitation only during the pendency of this case, dkt. no. 21,
pp. 1-2.

Defendant testified at the hearing that she has no

intention to contact Plaintiff's current customers, and that her
new employer, in fact, has a policy prohibiting her from doing
so, but that she cannot prevent those customers from contacting
her to do business. Dkt. No. 20, 10:11-20.

She also indicated

that she has initiated contact with approximately a dozen of
Plaintiff's qualified prospects since her separation. Id. at
15:5-21.

After oral argument, the Court directed the parties to file
supplemental briefing on the solicitation issue. Dkt. No. 19.
Those briefs are now before the Court, see dkt. nos. 21-22, 24,
and Plaintiff's Motion is ripe for review.

AO 72A
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CONCLUSIONS OF LAW
I. Temporary Restraining Order

A court may issue a temporary restraining order without
notice to the adverse party only if
(A) specific facts in an affidavit or a verified
complaint clearly show that immediate and irreparable
injury, loss, or damage will result to the movant
before the adversary party can be heard in opposition;
and
(B) the movant's attorney certifies in writing any
efforts made to give notice and the reasons why it
should not be required.
Fed. R. Civ. P. 65(b).
Because Defendant received notice of this action after
Plaintiff filed the instant Motion, dkt. no. 12, Plaintiff's
request for a temporary restraining order is now moot. This
portion of Plaintiff's Motion is DISMISSED.
II. Preliminary Injunction

Before a preliminary injunction may issue, the moving party
must give notice to the adverse party and post security in an
amount sufficient to pay the adverse party's costs and damages
in the event that she is wrongfully enjoined. Fed. R. Civ. P.
65(a) (1), (c) . Plaintiff's counsel confirmed that Plaintiff was
prepared to post any security payment directed by the Court.
Dkt. No. 19. Additionally, to be eligible for a preliminary
injunction, the movant must establish each of the following
elements:
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(1) it has a substantial likelihood of success on
the merits; (2) irreparable injury will be
suffered unless the injunction issues; (3) the
threatened injury to the movant outweighs
whatever damage the proposed injunction may cause
the opposing party; and (4) if issued, the
injunction would not be adverse to the public
interest.
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26
(11th Cir. 2005) (quoting Klay v. United Healthgroup, Inc., 376
F.3d 1092, 1097 (11th Cir. 2004), and Suntrust Bank v. Houghton
Mifflin Co., 268 F.3d 1257, 1265 (11th Cir. 2001)). "'(A]
preliminary injunction is an extraordinary and drastic remedy
not to be granted unless the movant clearly establishe[s] the
burden of persuasion' as to each of the four prerequisites."
Siegel v. LePore, 234 F.3d 1163, 1176-77 (11th Cir. 2000)
(quoting McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306
(11th Cir. 1998))
Plaintiff fails to meet its burden of demonstrating that it
is entitled to a preliminary injunction. To the extent that
Plaintiff seeks an injunction requiring that Defendant return
the laptop computer and e-mailed documents, its Motion is
DISMISSED as moot based on the agreement of the parties at the

hearing, see dkt. no. 19. Plaintiff's remaining request—that
the Court enjoin Defendant from contacting its clients and
prospective clients—is due to be denied, because Plaintiff fails

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to show a substantial likelihood that it will prevail on the
merits of its claims, as is required under the first element.
A. Breach of Contract Claim

Under Georgia law, a plaintiff asserting a breach of
contract claim must prove "the (1) breach and the (2) resultant
damages (3) to the party who has the right to complain about the
contract being broken." Canton Plaza, Inc. v. Regions Bank,
Inc., 732 S.E.2d 449, 454 (Ga. Ct. App. 2012) (emphasis removed)
(quoting Duke Galish, LLC v. Manton, 707 S.E.2d 555 (Ga. Ct.
App. 2011)).
Plaintiff does not point to any evidence, at this stage,
that suggests that Defendant breached any contractual duty in
contacting its actual or prospective clients following her
departure. The parties do not dispute that Defendant never
signed the confidentiality and nonsolicitation agreement in her
onboarding packet. Dkt. No. 19. Although Defendant executed
the At Will and Policy Certification and the Standards Agreement
representing that she would abide by the Standards of Conduct
both during and after her employment, dkt. no. 11, exs. 2-3, she
did not undertake any obligation not to solicit customers in
doing so. The Confidentiality provision in the Standards of
Conduct precludes only the "disclos[ure] [of] confidential
information to anyone outside the [c]ompany unless there exists
a legitimate need for the information in order to work with
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Intermedix." Dkt. No. 11, Ex. 1, p. 12. As the provision
defines "confidential information" as including "Ef]iles and
information related to clients of the [c]ompany" and
"information relating to the present or planned business of the
[c]ompany," Id. at ex. 1, p. 11, perhaps Defendant's e-mailing
of client and sales-strategy documents would have contravened
her duty of confidentiality had she disclosed the information to
her new company. However, because the Standards of Conduct are
silent as to competing against Plaintiff or soliciting its
actual or prospective customers—and nothing suggests that these
activities involve any "disclosure" of confidential client files
or sales information—Plaintiff's contacting of these customers
did not constitute a breach of any obligation under the
Standards of Conduct.
In its most recent briefing on the issue, Plaintiff
continues to underscore that Defendant's e-mailing of client
documents breached her confidentiality obligations under the
Standards of Conduct. See Dkt. No. 21, pp. 6-7. Even assuming
the wrongfulness of that conduct, this argument is moot based on
Defendant's agreement to return the documents. Equally
unconvincing is Plaintiff's suggestion that Defendant's
forwarding of documents is indicative of her intentions in
contacting its qualified prospects. See Id. Defendant's
motivation for contacting those entities is irrelevant, as
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Defendant had no contractual duty not to solicit them in the
first place. Without sufficient evidence of any contractual
breach at this time, Plaintiff fails to demonstrate that its
contract claim supports the issuance of a preliminary
injunction.
B. Misappropriation of Trade Secrets Claim

The Georgia Trade Secrets Act of 1990, O.C.G.A. §§ 10-1-760
to -767 (the "Trade Secrets Act"), provides that a court may
enjoin actual or threatened misappropriation of a trade secret,
even in the absence of a contractual agreement prohibiting the
same. O.C.G.A. § 10-1-762(a), (d). "Misappropriation" refers
to "the acquisition, disclosure, or use under specified
circumstances of a 'trade secret." Smith v. Mid-State Nurses
Inc.,

403

S.E.2d 789, 789-90 (Ga. 1991) (citing O.C.G.A. § 10-1-

761 (2)). Georgia law defines a "trade secret" as information
that
(A) [d]erives economic value, actual or potential,
from not being generally known to, and not being
readily ascertainable by proper means by, other
persons who can obtain economic value from its
disclosure or use; and

(B) [us the subject of efforts that are reasonable
under the circumstances to maintain its secrecy.
O.C.G.A. § 10-1-761(4).

"[A] list of actual or potential customers" may constitute
a trade secret if, in addition to satisfying the above

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requirements, it is "not commonly known by or available to the
public." Id. "[C]ustomer lists which are simply compilations
of public information and which could be as easily compiled by
third parties [are] not . . . deemed to constitute trade
secrets." Robert B. Vance & Assocs., Inc. v. Baronet Corp., 487
F. Supp. 790, 799 (N.D. Ga. 1979). By contrast, where a party
compiling a customer list, "while using public information as a
source, . . . expends a great deal of time, effort and expense
in developing the list[] and treats the list[] as confidential
in its business, the list[] may be entitled to trade secret
protection." Id. However, even in the latter case, the list is
protected only to the extent that competitors do not duplicate
the party's efforts through legitimate independent research.
Penalty Kick Mgmt. Ltd. v. Coca-Cola Co., 164 F. Supp. 2d 1376,
1380 (N.D. Ga. 2001) (quoting Essex Grp. v. Southwire Co., 501
S.E.2d 501, 501 (Ga. 1998)), aff'd, 318 F.3d 1284 (11th Cir.
2003). Where the client list includes nonpublic information
uniquely known by the party—for example, who referred a
customer, what services it needed, or whether it is susceptible
to poaching by a competitor—the list is protected. See, e.g.,
Amedisys Holding, LLC v. Interim Healthcare of Atlanta, Inc.,
793 F. Supp. 2d 1302, 1311 (N.D. Ga. 2011) (citing Paramount Tax
& Accounting, LLC v. H & R Block E. Enters., 683 S.E.2d 141, 147
(Ga. Ct. App. 2009)).
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Significantly, it is only the tangible customer list that
is the property of the party and warrants protection as a trade
secret in these instances. DeGiorgio v. Megabyte Int'l, Inc.,
468 S.E.2d 367, 369 (Ga. 1996) (citing O.C.G.A. § 10-1-761(4)
and Avnet, Inc. v. Wyle Labs., Inc., 437 S.E.2d 302, 302 (Ga.
1993)). The information reflected in the customer list is not
itself inherently confidential;

"[ciustomers are not trade

secrets." Bacon v. Volvo Serv. Ctr., Inc., 597 S.E.2d 440, 443
(Ga. Ct. App. 2004) (quoting Crews v. Roger Wahl, C.P.A., P.C.,
520 S.E.2d 727, 732 n.4 (1999)). "[U]tilizing personal
knowledge of customer and vendor information. . . . may be
forbidden through the use of restrictive covenants, but not
under the Trade Secrets Act." DeGiorgio, 468 S.E.2d at 369
(citing Avnet, Inc., 437 S.E.2d at 302)
The Amedisys decision illustrates this point. See Amedisys
Holdings, LLC, 793 F. Supp. 2d at 1302. In Amedisys, the
employer-plaintiff filed suit against three of its former sales
representatives after they allegedly took confidential and
trade-secret materials and used them to benefit their new
employer. Id. at 1305. Relevant here is that the first
employee had sent copies of the plaintiff's patient referral
logs—which contained information on patients from geographic
areas in which the employee had not worked during her
employment—both to her personal e-mail account and to the second
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employee-defendant. Id. at 1305-06. The third employee had
inadvertently kept a workbook listing doctors in her territory
that frequently referred patients for services, but later
returned the workbook at the plaintiff's request. Id. at 130506, 1309. All three employees had solicited business at
hospitals and patient care centers on behalf of their new
employer after leaving the company. Id. at 1306.
In ruling on the plaintiff's motion for a preliminary
injunction against soliciting its current and prospective
clients, the court determined that the plaintiff succeeded in
establishing a likelihood of success on the merits of its
misappropriation claim against only the first employee. Id. at
1311-13. The court cited evidence revealing that the first
employee was being untruthful about her reason for e-mailing
herself the log sheets and was, in fact, using them to solicit
business on behalf of her new employer. Id. at 1311-12. As to
the other employees, the court noted the absence of any evidence
that they had used the materials that they had received or
neglected to return, for the benefit of their new employer. Id.
at 1312-13. With regard to the third employee in particular,
the court emphasized that she had promptly returned the workbook
and, in any event, had developed such substantial relationships
with the doctors that she did not need to consult the workbook
to know whom to contact to generate business. Id.
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Even assuming, without deciding, that Plaintiff's lists of
actual clients and qualified prospects meet the statutory
requirements of a "trade secret," there is insufficient
evidence, at this stage, that Defendant misappropriated that
information. Contrary to Plaintiff's contentions, dkt. no. 21,
pp. 12-15, Defendant is unlike the first employee in .Amedisys,
in that she was responsible for the sales territory in which the
entities listed in the e-mailed documents are located, and she
assisted in compiling these lists during her employment with
Plaintiff. See Dkt. No. 19; Dkt. No. 20, 4:3-4. Moreover, the
Court finds Defendant's testimony as to her reasons for
forwarding the e-mails to be credible and believes, for the
purposes of this Motion, that she did not intend to use the
attached materials to poach Plaintiff's current or prospective
clients. See Dkt. No. 20, 9:18-21, 11:14-21, 13:10-11.
Rather, Defendant is more similar to employees two and
three in Amedisys, as there is no evidence indicating that she
used the e-mailed materials to the benefit of EMS/MC at any
time. Furthermore, like the third employee in that case,
Defendant has since returned or deleted the documents, and
nothing suggests that her limited communications with
Plaintiff's actual or prospective clients since her departure
were generated by anything other than her preexisting knowledge
of and relationships with these entities. See, e.g., id. at
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4:3-4, 10:11-20, 15:5-21. While Plaintiff has multiple legal
mechanisms available to prevent an employee from utilizing her
personal knowledge of the industry to contact customers after
leaving the company, the Georgia Trade Secrets Act is not one of
them. Plaintiff thus fails to show that it is likely to prevail
on its misappropriation claim.'
Absent a substantial likelihood that it will succeed on the
merits of these claims, Plaintiff cannot meet its burden of
establishing that the extraordinary remedy of a preliminary
injunction is appropriate in this case. Accordingly, the Court
need not evaluate the remaining preliminary-injunction elements
to conclude that Plaintiff's Motion seeking to enjoin Defendant
from contacting customers must be DENIED. See Bloedorn

V.

Grube, 631 F.3d 1218, 1229 (11th Cir. 2011) ("If [the movant] is
unable to show a substantial likelihood of success on the
merits, we need not consider the other requirements."); Pittman
v. Cole, 267 F.3d 1269, 1292 (11th Cir. 2001) ("[W]hen a
plaintiff fails to establish a substantial likelihood of success
on the merits, a court does not need to even consider the
remaining three prerequisites of a preliminary injunction.").

' While Plaintiff also brings claim for tortious interference with
business relations, dkt. no. 1, it does not rely on this claim as a
basis for seeking a preliminary injunction in this Motion, see dkt.
no. 11.
AO 72A
(Rev. 8/82)

I

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CONCLUSION
For the reasons stated above, the relevant considerations
counsel against granting Plaintiff's Motion for Temporary
Restraining Order and Preliminary Injunction. Plaintiff's
Motion (dkt. no. 11) is DISMISSED in part as moot and DENIED in
part at this time: it is DISMISSED in that Plaintiff's requests
for a temporary restraining order and a preliminary injunction
for the return of property are now moot, and it is DENIED in
that Plaintiff is not entitled to a preliminary injunction
precluding Defendant from contacting its actual and prospective
clients. All of these conclusions are based on the evidence
presently before the Court. Obviously, if, during discovery,
contrary evidence were to be developed, it may bear
reexamination.

SO ORDERED, this 14 day of April, 2016.

0

(~-~

LISA GODBEY OD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

AO 72A
(Rev. 8/82)

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