United States District Court, D. Nebraska
WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY, a Nebraska Fraternal Benefit Society, Plaintiff,
ROBERT WEATHERSBEE, and MAXIE BONDURANT, Defendants.
MEMORANDUM AND ORDER
M. Gerrard, United States District Judge
matter is before the Court on the plaintiff's renewed
motion for a temporary restraining order (filing
11). That motion will be granted.
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 . . .
(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[.]
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.
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
Fed. R. Civ. P. 65(b)(1).
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.
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.
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 ...