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AmeriPride Services Inc. v. Peterson

United States District Court, D. Nebraska

March 5, 2018

AMERIPRIDE SERVICES INC., Plaintiff,
v.
JEFFREY PETERSON, Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon Senior United States District Judge.

         This matter is before the court on the plaintiff's motion for a temporary restraining order, Filing No. 3. The plaintiff seeks to enforce a non-compete agreement. The defendant was served with the petition and summons in this case via messenger and email on March 1, 2018 at 1:17 p.m. Filing No. 19, Return of Service. The plaintiff represented to the court that the defendant was notified via email on March 2, 2018 at approximately 7:30 a.m. of the hearing that occurred at 11:00 a.m. that morning. The defendant did not appear at the hearing. The defendant has not yet entered an appearance in the action and accordingly is not notified via ECF of any filings.

         I. BACKGROUND

         Evidence of record establishes that defendant Jeffrey Peterson was employed by AmeriPride as a Sales Executive. As a Sales Executive, Peterson was assigned a territory which spanned four to six sales routes. He was primarily responsible for securing new business, in addition to expanding and maintaining customers for AmeriPride. AmeriPride alleges Peterson was given access to AmeriPride's confidential information, including customer lists, prospect lists, co-worker performance and preferences, marketing strategies, pricing information, and customer requirements.

         Peterson's AmeriPride employment agreement (the "Agreement") includes nondisclosure, employee non-solicitation, and customer non-solicitation obligations as follows:

The Employee agrees that during his/her employment with the Company and for a period of one (1) year after the termination of that employment, (s)he will neither: (a) divulge to any person other than those employed by the Company, any Confidential Information, nor (b) solicit or encourage or, in any way, assist any current employee of the Company to leave employment of the Company for employment (or any other form of association) with any business engaged in the Textile Rental Business, nor (c) shall (s)he directly or indirectly engage or participate in or assist, as owner, part owner, partner, director, officer, trustee, employee, agent or consultant, or in any other capacity, for himself/herself or for any other firm or corporation in the Textile Rental Business with respect to customers or prospective customers which Employee shall have served or called on during the six (6) month period immediately preceding termination.

Filing No. 5-1, Declaration of Jeremy D. Robb, Michael Jackson, Ex. A at 3-4, Non-compete Agreement. In October of 2017, Aramark announced the purchase of AmeriPride. Effective early this year, AmeriPride became a wholly-owned subsidiary of Aramark. There is no evidence as to the terms of the merger. AmeriPride has shown however, that Peterson's compensation did not change with the announcement of the merger and that Aramark confirmed in a communication to sales employees at the time of the merger that there would be no changes to compensation in the fiscal year 2018. Although there is no evidence in the record regarding the number of employee terminations, reductions in sales territory, or changes in sales quotas.

         In November 2017, Peterson announced his resignation. Peterson thereafter began working for a direct competitor of AmeriPride, Spin Linen Management ("SLM"). The plaintiff has shown by affidavit that on or around December 8, 2017, Peterson emailed his former customers from his SLM account. Filing No. 7-2, Index of Evid., Ex. 2, affidavit of Rachel Reese at 1-2.

         The record shows that in response to a cease and desist letter dated February 1, 2018, Peterson responded; “I have no plans to solicit AmeriPride customers with whom I worked in a sales capacity with between May 25, 2017 and November 25, 2017. In addition, I have no plans to solicit any employees of AmeriPride. The plaintiff concedes that Peterson's alleged contact with customers predated the cease and desist letter. The Plaintiff also asserts that it has lost at least two customers to its competitor SLM, one indicating that it preferred to continue to do business with Mr. Peterson and not AmeriPride.

         II. DISCUSSION

         A. Rule 65 Standards

         Under the federal rules, 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 ...

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