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

Filing 9

ORDER denying 2 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,
ORDER
vs.
ROBERT WEATHERSBEE, and
MAXIE BONDURANT,
Defendants.
This matter is before the Court on the plaintiff's motion for a temporary
restraining order (filing 2). That motion will be denied.
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 plaintiffs allege 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 damages 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).
Although the plaintiff has alleged ongoing misconduct, and the
potential for immediate injury, it has not certified its efforts, if any, to notify
the defendants. And because a temporary restraining order is an emergency
remedy which should be issued only in exceptional circumstances, Zidon v.
Pickrell, 338 F. Supp. 2d 1093, 1094-95 (D.N.D. 2004), the Court will deny
the motion until and unless such efforts are made. Accordingly, the plaintiff's
motion for a temporary restraining order is denied.
IT IS SO ORDERED.
Dated this 3rd day of November, 2016.
BY THE COURT:

John M. Gerrard
United States District Judge

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