Domtar AI Inc. et al v. J. D. Irving, Ltd. et al
ORDER DENYING 11 Plaintiff's Motion for Preliminary Injunction, and HOLDING IN ABEYANCE 16 Defendants' Motion to Stay. The Defendants' Motion to Stay will be held in abeyance until motions practice before this Court has concluded. Signed by US District Judge Terrence W. Boyle on 5/6/2014. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
J.D. IRVING, LTD., IRVING PERSONAL )
CARE, LTD., and JAMES DEFELICE,
DOMTAR AI INC. and its affiliate,
ASSOCIATED HYGENIC PRODUCTS
This cause comes before the Court on plaintiffs' motion for preliminary injunction [DE
11], and defendants' motion to stay [DE 16]. A hearing was held on these matters on April25,
2014 at 11:00 a.m. in Raleigh, North Carolina. For the reasons discussed below, the motion for
preliminary injunction is DENIED and the motion to stay is HELD IN ABEYANCE until
motions practice before this Court is concluded.
Plaintiffs filed this action in aid of arbitration on January 31, 2014, seeking injunctive
relief and alleging claims for breach of contract, unfair competition and unfair and deceptive
trade practices, violation of the North Carolina Uniform Trade Secrets Protection Act
("UTSPA"), tortious interference with contractual relations, conspiracy, and conversion. The
complaint alleges that defendant DeFelice was hired by plaintiff Associated Hygiene Products
("AHP") in December 2009 and thereafter executed an employment agreement that contains
covenants not to compete and to protect against the disclosure of confidential information. AHP
was acquired by plaintiffDomtar AI Inc. ("Domtar") in June 2013 and became a wholly-owned
subsidiary thereof; all agreements to which AHP was a party were assigned to and accepted by
Defendant DeFelice notified plaintiffs that he intended to resign to accept employment
with defendant J.D. Irving ("JDI"), who plaintiffs contend is a direct competitor in the baby
diaper product segment. Plaintiffs thereafter filed this suit. JDI then moved to transfer this case
to the Northern District of Georgia. On the same day, plaintiffs filed an amended complaint and
a motion for preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure.
Plaintiffs then requested an expedited hearing on their motion for preliminary injunction, and
defendant JDI moved to stay this matter pending resolution of its own motion for injunctive
relief filed in the Northern District of Georgia, or for an expedited hearing on its motion to
transfer.' On March 26, 2014, the Court entered an order denying the motion to transfer [DE 25].
On April25, 2014, the Court held a hearing on the motion for preliminary injunction and the
motion to stay. The matters are now ripe for ruling.
MOTION FOR PRELIMINARY INJUNCTION.
"A preliminary injunction is an extraordinary and drastic remedy." Munafv. Green, 533
U.S. 674 (2008). A movant must make a clear showing of each of four elements before a
preliminary injunction may issue: (1) that he is likely to succeed on the merits, (2) that he is
likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of
equities tips in his favor, and (4) that an injunction is in the public interest. Winter v. Natural
Res. Def Council, Inc., 555 U.S. 7, 20 (2008); see also Real Truth About Obama, Inc. v. Fed
Election Comm 'n, 575 F .3d 342, 34 7 (4th Cir. 2009) (holding that the Blackwelder balance-of-
On March 25,2014, defendant DeFelice and defendant Irving Personal Care notified the Court oftheir consent to
and joining in J.D. Irving's motion to transfer and motion to stay. [DE 24].
hardships test no longer applies in light of Winter) vacated on other grounds, 130 S. Ct. 2371
(20 10) (memorandum opinion). Plaintiffs seek injunctive relief on their breach of contract claim
against DeFelice and their NCTSP A claim against all defendants. Applying the standard
announced in Winter, the Court finds that plaintiffs have failed to demonstrate that they are
entitled to preliminary injunctive relief.
Breach of Contract Claim.
Likelihood of success on the merits.
The Court first considers the employment agreement between AHP and DeFelice to
determine whether AHP has demonstrated a likelihood of success on the merits on its breach of
contract claim. The Court notes that it need not decide which state's law governs the contract at
this time as plaintiffs fail to demonstrate that they are entitled to preliminary injunction relief
whether the matter is analyzed under either North Carolina or Georgia law.
Defendants argue that DeFelice's employment by JDI and its subsidiary Irving Personal
Care Ltd. ("IPC") as vice president of supply chain management in Moncton, Canada is not a
breach ofthe Agreement. The noncompete purports to restrict DeFelice from (i) working in the
diaper industry (ii) anywhere within the United States (iii) in the same capacity as he was
employed by AHP (iv) for JDIIIPC and other competitors. Defendants point out that DeFelice is
not working for JDI in the United States, he is working for them in Canada. Plaintiffs counter
that where DeFelice is physically when performing his job is of little significance because his
work for JDI will have a significant impact on Domtar's business in the United States.
Both Georgia and North Carolina law consider reasonableness as to time and territory
when adjudging the permissibility of restrictive employment covenants. A.E.P. Indus., Inc. v.
McClure, 302 S.E.2d 754, 760 (N.C. 1983); Aga v. Rubin, 533 S.E.2d 804, 805 (Ga. App. 2000).
By arguing that DeFelice's work in Canada would have an impact on Domtar's business in the
United States and is therefore prohibited by the contract, plaintiffs essentially argue that there is
no territorial restriction on the contract. Indeed, in today's interconnected world, if DeFelice
worked for JDI in Europe, or Mexico, or any country, his work might have some impact on
Domtar' s business in the United States. Domtar' s interpretation of its own contract that would
allow DeFelice to be in breach by working in Canada greatly expands the territorial scope of the
contract to what is probably an impermissible degree under both Georgia and North Carolina
law. See Fuller v. Kolb, 234 S.E.2d 517 (Ga. 1977) (affirming dismissal of employer's suit to
enforce restrictive covenant because the absence of territorial limitations renders covenant void);
Hartman v. WH Odell andAssocs., Inc., 450 S.E.2d 912,917 (N.C. App. 1994) (noncompete
with "nationwide" scope overbroad and unenforceable). Therefore it is not likely that plaintiffs
claim for breach of contract based on the noncompete covenant would succeed on the merits.
Plaintiffs also have not shown that their breach of contract claim based on the
nonsolicitation restriction in the agreement is likely to succeed on the merits. Defendants argue
that DeFelice was not involved in soliciting business for plaintiffs and therefore forcing him to
comply with the customer nonsolicitation restriction renders it, and all other restrictions in the
agreement unenforceable. See Capricorn Sys., Inc. v. Pednekar, 546 S.E.2d 554, 557 (Ga. App.
2001) (noncompete and nonsolicit overbroad where not restricted to activity that employee had
actually engaged in for former employer); Adv. Tech. Consultants Inc. v. Roadtrac, LLC, 551
S.E.2d 735, 737 (Ga. App. 2001) (overbroad nonsolicit automatically invalidated all other
restrictive covenants in the same agreement).
Likelihood to suffer irreparable harm.
Plaintiffs have not presented any evidence that they would be irreparably harmed by
DeFelice's continued employment with JDI. Plaintiffs delayed seeking a preliminary injunction
for six weeks after the filing of their complaint and two months after the termination of DeFelice.
This supports a finding that they are not suffering an irreparable harm. Southtech Orthopedics,
Inc. v. Dingus, 428 F. Supp. 2d 410,420 (E.D.N.C. 2006). Further plaintiffs do not point to the
defection of a single customer, the loss of a single sale, or any other harm suffered as a result of
DeFelice's employment with JDI.
Because plaintiffs do not establish a likelihood of success on the merits of their breach of
contract claim, or show a likelihood to suffer irreparable harm from DeFelice's alleged breach,
the preliminary injunction is denied as to plaintiffs' breach of contract claim.
UTSP A Claim.
Plaintiffs seek an order enjoining defendant DeFelice from disclosing, accessing, or
utilizing any of plaintiffs' trade secret and proprietary and confidential information, including
that he be "walled" from any responsibilities at JDI in which he is in position to disclose, access,
or utilize any of plaintiffs' trade secret and proprietary and confidential information.
For the same reasons articulated by the Court supra Part I.A.ii., plaintiffs have failed to
establish a likelihood of irreparable harm. The delay between DeFelice's termination and
plaintiffs' filing for a preliminary injunction suggests that fear of irreparable harm is less than
dire. The absence of irreparable harm is sufficient to deny plaintiffs' motion for preliminary
injunction. Accordingly it is denied as to plaintiffs' UTSP A claim.
MOTION TO STAY.
Having considered the competing interests and in exercising its judgment, the Court
declines to rule on the motion to stay at this time. It shall be held in abeyance until motions
practice before this Court has concluded.
For the reasons discussed above, plaintiffs' motion for preliminary injunction [DE 11] is
DENIED. Defendants' motion to stay [DE 16] is HELD IN ABEYANCE until motions practice
before this Court is concluded.
SO ORDERED, this _k_ day of May, 2014.
T RRENCE W. BOYLE
UNITED STATES DISTRICT JUD
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