United States District Court, D. Nebraska
CDM INVESTMENT GROUP, INC., a Nebraska Corporation; and AIRTITE, INC., a Nebraska Corporation; Plaintiffs,
DUSTIN SANDOVAL, IVAN MEIRING, and INTEGRATED SPECIALTY CONTRACTORS, LLC, an Illinois Limited Liability Company; Defendants.
MEMORANDUM AND ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion for Preliminary
Injunction, ECF No. 3, and the Motion for Temporary
Restraining Order, ECF No. 11, filed by Plaintiffs CDM
Investment Group, Inc. (CDM), and Airtite, Inc., doing
business as E&K of Chicago, Inc. (E&K) (collectively,
Plaintiffs). For the reasons stated below, the Motions will
E&K is a wholly owned subsidiary of E&K Companies,
Inc.,  which is a wholly owned subsidiary of
Plaintiff CDM. Plaintiffs both operate in the construction
industry. Defendant Dustin Sandoval became an employee of
Plaintiffs in 2001 and was eventually promoted to Vice
President of Sales for E&K and Chief Procurement Officer
for CDM. Defendant Ivan Meiring became an employee of
Plaintiffs in 2012 and eventually achieved the position of
Senior Estimator/Sales Manager. On January 22, 2018, Sandoval
and Meiring resigned their positions and terminated their
employment to begin working at a competing construction
company they formed in September of 2017 called Integrated
Specialty Contractors, LLC (Integrated).
their employment with Plaintiffs, Sandoval and Meiring
purchased shares of CDM and are currently minor shareholders
of the company. In order to purchase shares, CDM required
them to enter into a Shareholder Buy-Sell Agreement. Sandoval
Shareholder Agr., ECF No. 9-1, Page ID 85; Meiring
Shareholder Agr., ECF No. 9-1, Page ID 71. They were also
required to sign Confidentiality and Conflict of Interest
Agreements at the beginning of their employment. Sandoval
Confidentiality Agr., ECF No. 9-1, Page ID 96; Meiring
Confidentiality Agr., ECF No. 9-1, Page ID 81.
January 25, 2018, three days after Sandoval and Meiring left
Plaintiffs' employ, their company, Integrated, was
awarded the “Brightstar” construction project by
Leopardo Companies. Although Sandoval and Meiring were
responsible for bidding on projects for Plaintiffs, no bid
for the Brightstar project was submitted on Plaintiffs'
behalf. Given the temporal proximity of their resignation and
the award of the Brightstar project, Plaintiffs believe
Sandoval and Meiring submitted a bid on Integrated's
behalf while they were still employed by Plaintiffs. Also, on
January 29, 2018, Integrated offered employment positions to
two current E&K employees and they both accepted the
offers the same day.
filed their Complaint, ECF No. 1-1, Page ID 5, in the
District Court of Douglas County, Nebraska, and asserted a
claim for breach of fiduciary duty against Sandoval, Meiring,
and Integrated (collectively, Defendants) and a claim for
breach of contract against Sandoval and Meiring. On February
9, 2018, Defendants removed the case to this Court and
Plaintiffs filed their Motion for Preliminary Injunction. On
February 12, 2018, Plaintiffs also filed their Motion for a
Temporary Restraining Order. A hearing on the motions was
held on February 13, 2018.
in the Eighth Circuit apply the factors set forth in
Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109,
114 (8th Cir. 1981) (en banc), when determining whether to
issue a preliminary injunction or temporary restraining
order. Those factors are: “(1) the threat of
irreparable harm to the movant; (2) the state of 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. “No single factor is
determinative.” WWP, Inc. v. Wounded Warriors,
Inc., 566 F.Supp.2d 970, 974 (D. Neb. 2008). “A
preliminary injunction is an extraordinary remedy and the
burden of establishing the propriety of an injunction is on
the movant.” Roudachevski v. All-Am. Care Centers,
Inc., 648 F.3d 701, 705 (8th Cir. 2011) (citing
Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir.
Threat of Irreparable Harm
harm occurs when a party has no adequate remedy at law,
typically because its injuries cannot be fully compensated
through an award of damages.” Grasso Ents., LLC v.
Express Scripts, Inc., 809 F.3d 1033, 1040 (8th Cir.
2016) (quoting Gen Motors Corp. v. Harry Brown's,
LLC, 563 F.3d 312, 319 (8th Cir. 2009)). Thus,
“economic loss, on its own, is not an irreparable
injury so long as the losses can be recovered.”
Chlorine Inst., Inc. v. Soo Line R.R., 792 F.3d 903,
915 (8th Cir. 2015) (quoting DISH Network Serv. L.L.C. v.
Laducer, 725 F.3d 877, 882 (8th Cir. 2013)). A mere
possibility of irreparable harm, however, is insufficient to
justify a preliminary injunction. The movant must
“demonstrate that irreparable [harm] is likely
in the absence of an injunction.” Sierra Club v.
U.S. Army Corps of Eng'rs, 645 F.3d 978, 992 (8th
Cir. 2011) (quoting Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008) (emphasis in original).
“The absence of irreparable injury is by itself
sufficient to defeat a motion for a preliminary
injunction.” Chlorine Inst., 792 F.3d at 915
(quoting DISH Network, 725 F.3d at 882).
support their argument that an injunction is warranted,
Plaintiffs rely on the Confidentiality Agreements, wherein
the Parties agreed that a violation would result in
irreparable harm and the party in violation waived the
defense that an adequate remedy at law existed. Sandoval
Confidentiality Agr. § 4, ECF No. 9-1, Page ID 98;
Meiring Confidentiality Agr. § 4, ECF No. 9-1, Page ID
83. However, “an irreparable-harm provision, without
more, is insufficient to establish irreparable harm[ ]”
and Plaintiffs have shown nothing more. Minn. Vikings
Football Stadium, LLC v. Wells Fargo Bank, 157 F.Supp.3d
834, 841 (D. Minn. 2016) (citing Dominion Video
Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d
1256, 1266 (10th Cir. 2004)).
have not demonstrated that money damages would be an
insufficient remedy for the alleged breach of contract and
fiduciary duty. They argue this case is similar to
Barrett v. Reynolds where the Court found a threat
of irreparable harm because the circumstances indicated the
party sought to be enjoined was likely to become
“judgment proof” absent an injunction. No.
8:12CV328, 2012 WL 5569755, at *4 (D. Neb. Nov. 15, 2012).
Here, there is no argument that Defendants are, or will
likely become, judgment proof. If the injunctive relief
sought by the Plaintiffs were ordered, such relief would
increase the likelihood that the Defendants could
become judgment proof. Thus, Barrett does not
support Plaintiffs' contention that they face a threat of
irreparable harm absent injunctive relief.
further argue that “[i]f they are not immediately
enjoined, Defendants will continue to usurp business
opportunities [from] the Plaintiffs.” Pl.'s Br.
Mot. Prelim. Inj., ECF No. 4, Page ID 56. Their argument is
based on Integrated's successful bid for the Brightstar
project, which Plaintiffs contend might have been awarded to
them but for Defendants' actions. However, “a loss of
customers” does not necessarily constitute irreparable
harm. Novus Franchising, Inc. v. Dawson, 725 F.3d
885, 895 (8th Cir. 2013) (citing Gen. Motors Corp.,
563 F.3d at 319) (affirming district court's denial of a
preliminary injunction because there was a “question
whether [the plaintiff's] injuries, i.e.,
‘a loss of customers or customer goodwill, ' [were]
truly ‘irreparable' in the sense that they could
not be addressed through money damages”) (internal
citations omitted). Although Plaintiffs argue Defendants have