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Woodmen of the World Life Insurance Society v. Weathersbee

United States District Court, D. Nebraska

November 4, 2016

WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY, a Nebraska Fraternal Benefit Society, Plaintiff,
v.
ROBERT WEATHERSBEE, and MAXIE BONDURANT, Defendants.

          MEMORANDUM AND ORDER

          John M. Gerrard, United States District Judge

         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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