Herrick et al v. Potandon Produce, LLC et al
MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS SECOND MOTION FOR PRELIMINARY INJUNCTION - It is therefore ORDERED that Defendant Potandons Second Motion for Preliminary Injunction (Docket No. 36 ) is DENIED. Signed by Judge Brian Ted Stewart. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
COLLETTE HERRICK, JULIENE
ATWOOD, TEESHA MITCHELL, and
MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT’S
SECOND MOTION FOR PRELIMINARY
POTANDON PRODUCE, LLC, a limited
liability company, KENT M. ROMRELL,
DICK THOMAS, JAMEY HIGHAM,
TRAVIS HESS, MEL DAVENPORT,
STEVE OTTUM, J.P. SURERUS, and
JACK KELLEY, individuals,
Case No. 4:15-CV-533 TS
District Judge Ted Stewart
This matter is before the Court on Defendant Potandon’s Second Motion for Preliminary
Injunction. The Court will deny Potandon’s Motion for the reasons stated below.
Potandon Produce, LLC (“Potandon”) is a potato and onion broker located in Idaho Falls,
Idaho. Former employees Colette Herrick, Juliene Atwood, and Teesha Mitchell brought claims
against Potandon for violation of the Equal Pay Act (“EPA”) and the Fair Labor Standards Act
(“FLSA”). In its Answer to the Complaint, Potandon filed a Counterclaim against Ms. Herrick
for violation of a non-compete and confidentiality agreement (the “Agreement”) that she signed
while employed at Potandon. Potandon sought injunctive relief and filed a motion for
preliminary injunction. The Court denied this motion on February 26, 2016. The Court found
that (1) Potandon had not shown a likelihood of success on the merits for its claim for breach of
the Agreement, (2) Potandon had not shown that it is likely to suffer irreparable harm if Ms.
Herrick continued her employment at Eagle Eye as a Packaging and Transportation clerk, (3) the
balance of equities tipped in Ms. Herrick’s favor, and (4) although the public interest tipped in
favor of Potandon, that fact alone did “not compensate for the failure to meet the three other
Potandon now submits a Second Motion for Preliminary Injunction seeking to enjoin Ms.
Herrick from “engaging in any act which would be a violation of the Non-Compete and
Confidentiality Agreement,” including disclosing confidential information to a third party,
retaining any documents, confidential information, or intellectual property of Potandon, and
engaging in employment identical or similar to her role as a Potandon employee. 2 Potandon
relies on two recent developments in support of its renewed motion for injunctive relief: (1)
newly discovered evidence submitted to Potandon by Ms. Herrick as part of her interrogatory
responses and (2) a recent amendment to Idaho Code § 44-2704.
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” 3
First, Plaintiff must show a likelihood of success on the merits of its claim for breach of
the Agreement. In its Second Motion, Potandon asserts that it has obtained new evidence in
support of its allegation that Ms. Herrick has breached the Agreement. Potandon argues that (1)
Docket No. 22, at 10.
Docket 36, at 2.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Ms. Herrick’s job title at Eagle Eye is irrelevant to determining whether she has breached the
Agreement and that her work in transportation and packaging for Eagle Eye is identical to that
which she performed as a Potandon Sales Person, (2) Ms. Herrick contacted Potandon customers
during her employment with Eagle Eye in violation of the Agreement, and (3) Ms. Herrick
improperly retained and deleted Potandon’s confidential information.
To some extent, Potandon reasserts its previous arguments. Potandon argued in its
previous motion for preliminary injunction that Ms. Herrick engaged in activities similar to those
she performed for Potandon for Eagle Eye and that Ms. Herrick’s job title is not dispositive as to
whether she is violating the Agreement. Potandon cited to instances in which Ms. Herrick, while
employed at Eagle Eye, participated in conference calls to ensure timely delivery of produce that
had already been sold. The Court held that prohibiting any activity that is similar to any activity
she engaged in as a sales person for Potandon is an unreasonable restraint in an attempt to protect
an employer’s legitimate business interest. 4
Potandon now argues that Ms. Herrick engaged in identical duties to that which she
performed at Potandon. Specifically, Potandon alleges that Ms. Herrick engaged in “activities
related to packaging or transporting product,” 5 which are identical to her duties “related to the
transportation of sales orders and resolving carrier and supplier issues.” 6 Potandon does not
provide specific examples, but rather compares Potandon’s Job Description 7 with Eagle Eye’s
Docket No. 22, at 7.
Docket No. 36-1, at 8.
Id. at 7.
Docket No. 36-4, at 5.
offer letter, 8 which lists some, but not all of the responsibilities of a “Packaging Coordinator.”
As Potandon recognizes, job titles or descriptions are not dispositive as to whether a breach or
violation of the Agreement has been committed. Even had Ms. Herrick engaged in activities
related to the transportation of sales orders at Potandon in her role as a sales representative, those
duties were, as Ms. Herrick attests, incidental to the primary responsibility of customer service
and sales. As the Court previously held, broadly prohibiting Ms. Herrick from engaging in any
duties she once engaged in is an unreasonable restriction on her rights.
Next, Potandon argues that Ms. Herrick breached the Agreement by contacting Potandon
customers. Potandon submits two text messages and a Facebook post in which Ms. Herrick
interacted with Potandon’s customers. In the first text message to the buyer of a top Potandon
customer, Ms. Herrick asks for the buyer’s email address. The buyer asked about the pending
litigation regarding the non-compete matter. Ms. Herrick states that she’s had to hire an attorney
and that “[it’s] like David and goliath.” The buyer then responds, “Bastards!!! Sorry to hear it.
Do you have all your pots ready for the winter?”
In the second text message, Ms. Herrick tells a different buyer, “I just couldn’t take it
anymore! I really appreciate our business and friend relationships! You guys are awesome
people!” The buyer responds, “Likewise Collette it’s been a pleasure. I wish you had it better
there. You deserve it.”
Docket No. 36-2, at 9.
Last, Potandon submits a screenshot of Ms. Herrick’s Facebook post in which she shared
Lou Brutus’s 9 post and tagged a partner and executive of another Potandon customer in the post.
Ms. Herrick commented, “thought of you immediately!! xoxo.”
These interactions fall short of suggesting breach of the Agreement. Section 4 of the
Agreement prohibits solicitation of Potandon customers, but makes no mention of prohibiting all
contact. Section 4 states,
During Employee’s employment at Potandon and for a period of eighteen (18)
months after the termination of that employment (for any reason, whether
voluntary or involuntary), Employee shall not, with respect to any business in
competition with Potandon’s Business, for herself or on behalf of any person or
entity, directly or indirectly:
4.1 Attempt, assist or actually solicit, divert, take away, or advertise to any
customer, co-packer, or other supplier of Potandon or a Potandon affiliate, for
whom Employee performed services, or with whom Employee developed a
relationship, while working on behalf of Potandon or a Potandon affiliate during
her employment with Potandon.
Ms. Herrick’s text messages and Facebook post with Potandon’s customers did not
amount to solicitation. There was no discussion of the sale of fresh potatoes or onions. Though
Ms. Herrick requested the email of a Potandon customer, the Court cannot assume that the
request was for the purpose of solicitation without further information. The Facebook post is
devoid of any reference to business activity. Thus, Ms. Herrick’s communications do not
suggest breach of the Agreement.
Finally, Potandon argues that Ms. Herrick breached the Agreement by retaining
confidential documents following termination of her employment. Potandon submits documents
A radio personality.
that appear to be customer lists and sales information, which Ms. Herrick turned over to
Potandon during discovery. 10
Section 5.3 of the Agreement states,
All Confidential Information provided to Employee, and all documents and
Confidential Information prepared by Employee in the course of Employee’s
employment, including, but not necessarily limited to, . . . financial plans and
information, business plans, customer lists, and other documents . . . and any and
all copies thereof, are the exclusive property of Potandon and shall be returned
immediately to Potandon upon termination of Employee’s employment or upon
Potandon’s request at any time. 11
Ms. Herrick had in her possession what appears to be confidential information as defined
by Section 5.3 of the Agreement. However, this section does not relate to the non-compete
portion of the Agreement and has no bearing on the question of whether Ms. Herrick should be
enjoined from employment at Eagle Eye. Accordingly, Potandon fails to demonstrate its
likelihood of success on the merits of its claim for breach of the Agreement and the Court need
not reach the other factors of a preliminary injunction. Because of this, the Court need not
discuss the effect of the amendment to Idaho Code § 44-2704, as that provision requires a
showing of a breach, which Potandon has failed to do.
Docket No. 40.
Docket No. 10-3, at 7.
It is therefore
ORDERED that Defendant Potandon’s Second Motion for Preliminary Injunction
(Docket No. 36) is DENIED.
DATED this 17th day of November, 2016.
BY THE COURT:
United States District Judge
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