Woodmen of the World Life Insurance Society v. Weathersbee et al

Filing 15

MEMORANDUM AND ORDER granting 11 Renewed Motion for Temporary Restraining Order. Ordered by Judge John M. Gerrard. (DCD)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WOODMEN OF THE WORLD LIFE
INSURANCE SOCIETY, a Nebraska
Fraternal Benefit Society,

8:16-CV-498

Plaintiff,
MEMORANDUM AND ORDER
vs.
ROBERT WEATHERSBEE, and
MAXIE BONDURANT,
Defendants.
This matter is before the Court on the plaintiff's renewed motion for a
temporary restraining order (filing 11). That motion will be granted.
Briefly summarized, the plaintiff alleges that the defendants breached
the non-solicitation provision of their respective employment contracts.
Pursuant to that provision, a WoodmenLife employee cannot, for a period of
two years following the termination of his or her employment contract,
(i) induce or attempt to induce any WoodmenLife member or
certificate owner with whom the WoodmenLife Representative
did business and had personal contact during the term of this
contract, to surrender, cancel, lapse, forfeit, or otherwise
terminate any WoodmenLife insurance certificates or annuity
certificates . . .
[or]
(iii) induce or attempt to induce any WoodmenLife employee or
sales representative with whom the [employee] actually worked
and had personal contact while employed by WoodmenLife, to
terminate their relationship with WoodmenLife[.]
Filing 1 at 4. The plaintiff alleges that the defendants have and continue to
breach this provision by soliciting WoodmenLife members or representatives
with whom they had contact during their contractual relationship with the
plaintiff. As a result of this breach, the plaintiff contends that it has and will

continue to suffer irreparable harm in the form of "permanently damaged
relationships with its members, lost relationships with its workforce, and
irreversible damage to its goodwill in the Florida communities in which [the
defendants] are actively soliciting Woodmen members and Representatives."
Filing 3 at 2.
The Court may issue a temporary restraining order without written or
oral notice to the adverse party or its attorney 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 adverse 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)(1).
In its November 3, 2016 Memorandum and Order, this Court denied
the plaintiff's motion for a temporary restraining order, noting that the
plaintiff had not certified its efforts to notify the defendants in accordance
with Fed. R. Civ. P. 65(b)(1)(B). Filing 9 at 2. The Court further remarked
that, given the exceptional nature of temporary restraining orders, the Court
would deny the plaintiff's request "until and unless" it fully complied with the
notice requirements of Rule 65. Filing 9 at 2.
The plaintiff's renewed motion and accompanying exhibits set forth the
efforts it has made in providing the defendants notice. Specifically, the
plaintiff has shipped a copy of the complaint, motion, and accompanying
briefs to both defendants' home addresses via overnight mail; it retained a
Florida process server to serve each defendant with a copy of the summons
and complaint on an expedited basis; and plaintiff's counsel has attempted to
contact each defendant by phone at their last known telephone numbers.
Filing 11-2 at 1-2. These efforts are sufficient to satisfy the notice
requirement of Fed. R. Civ. P. 65(b)(1)(B).
In determining whether to grant a temporary restraining order, the
Court must also consider the factors set forth in Dataphase Systems, Inc. v.
CL Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). Those factors include: "(1) the
threat of irreparable harm to the movant; (2) the state of the balance between
this harm and the injury that granting the injunction will inflict on other
parties litigant; (3) the probability that movant will succeed on the merits;
and (4) the public interest." Id. at 114. No single factor is dispositive, and the

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burden is on the movant to establish the propriety of the remedy. Baker Elec.
Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994).
The plaintiff argues that it faces irreparable harm because, absent a
TRO, the defendants will continue to lure away customers of WoodmenLife in
violation of their respective employment agreements. Filing 3 at 16. This
activity, it contends, has and will continue to result in economic loss and lost
client goodwill. Filing 3 at 17. To this end, the plaintiff estimates that the
total value of the cancelled insurance policies to date exceeds $850,000, filing
1 at 9, and that the former employees have indicated "no intent of restraining
their solicitation activities absent Court order." Filing 3 at 17. Based on these
allegations and accompanying exhibits, the plaintiff has demonstrated that
immediate and irreparable injury, loss, or damages will result in the absence
of a TRO.
The plaintiff has also satisfied its burden with respect to the balance of
hardships and public interest factors set forth in Dataphase. As the plaintiff
asserts, the defendants would not face substantial harm from an order that
restrains them from violating their existing employment contracts. Filing 3
at 19. Further, the plaintiff contends that the issuance of a TRO is in the
public interest because the law favors the integrity of contractual agreements
and the protection of businesses from unfair competition. Filing 3 at 20. The
Court concludes that harm to the defendants, if any at this point, would not
outweigh the hardships to the plaintiff, and that maintaining the status quo
serves the public interest in this case.
CONCLUSION
After weighing the evidence, and applying the factors as set forth
above, the Court concludes that a TRO is necessary to preserve the status
quo. This decision is based on the plaintiff's allegations and evidence with
respect to current injury and threat of irreparable harm, and its reasonable
efforts to notify the defendants in this matter. Accordingly,
IT IS ORDERED:
1.

The Renewed Motion for Temporary Restraining Order
(filing 11) is granted as follows.

2.

From this date forward, the defendants, Robert
Weathersbee and Maxie Bondurant, shall not, directly or
indirectly, induce or attempt to induce, any WoodmenLife
member or certificate owner with whom the defendants did
business or had personal contact during the term of their
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employment, to surrender, cancel, lapse,
otherwise terminate any WoodmenLife
certificates or annuity certificates.

forfeit, or
insurance

3.

From this date forward, the defendants, Robert
Weathersbee and Maxie Bondurant, shall not induce or
attempt to induce any WoodmenLife employee or
representative with whom the defendants actually worked
with or had personal contact with while employed by
WoodmenLife, to terminate their employment relationship
with WoodmenLife.

4.

This Order shall remain in full force until altered,
amended, or vacated by the Court.

5.

Pursuant to Fed. R. Civ. P. 65(c), the Court has considered
the evidence presented to it, and determines, at this point,
that no security is necessary to pay costs and damages in
the event of wrongful restraint or injunction.

6.

Pursuant to Fed. R. Civ. P. 65(b)(3), a preliminary
injunction hearing shall be set at the earliest possible time
and, in any event, no later than 14 days from this date.

Dated this 4th day of November, 2016 at about 4:45 PM.
BY THE COURT:

John M. Gerrard
United States District Judge

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