United States District Court, D. Nebraska
KISTCO COMPANY, a Nebraska Corporation doing business as KISTLER EQUIPMENT COMPANY; Plaintiff,
PATRIOT CRANE AND RIGGING, LLC, a Nebraska Corporation; and JAMES GLODOWSKI, an individual; Defendants.
C. Buescher United States District Judge
matter came on for hearing on Plaintiff's Motion for
Preliminary Injunction on the 13th day of November, 2019.
Filing 4. Both parties appeared by counsel of record
and adduced evidence. For the reasons set forth herein, the
Motion for Preliminary Injunction is granted in part and
denied in part.
following is a summary of facts alleged in Plaintiff's
Complaint and accompanying supplement, Filing 1;
Filing 10, as well as the evidence submitted at the
preliminary injunction hearing: the affidavit and declaration
of Laura McElligott, Filing 16; Filing 32;
the declaration of Jack Tarr, Filing 30, and the
declaration of James Glodowksi, Filing 31.
Kistco Company, doing business as Kistler Equipment Company
(“Kistler”), is an Omaha-based company that
provides design, installation, repair, maintenance, and
inspection services for cranes and hoists. Filing 1 at
2, ¶7. Kistler hired Defendant, James Glodowski, as
a technician in early 2016. Filing 1 at 2, ¶8.
Glodowski was responsible for servicing Kistler's
customers and developing and maintaining a relationship with
those customers. Filing 1 at 2, ¶9. Glodowski
was the face of Kistler for many of its customers, and
customers contacted him directly to schedule service calls.
Filing 1 at 2, ¶¶7, 10. Glodowski rose
through the ranks at Kistler and became Kistler's key
service-department employee and longest-tenured technician.
Filing 1 at 4, ¶¶17, 18. Such longevity
and reliability garnered Glodowski greater trust,
responsibility, and access to confidential customer and
internal financial information. Filing 1 at 4,
condition of his employment with Kistler, Glodowski signed a
contract agreeing to three relevant restrictions. The first,
entitled “Post-Employment Competition” provided
For a period of one (1) year immediately following
termination (for any or no reason) of employment with
Employer, Employee will not seek or accept employment with,
and will not call on or solicit the business of, or sell to,
or service (directly or indirectly, on Employee's own
behalf or in association with any other individual or
entity), any of Employer's customers with whom Employee
did business and had personal contact while employed by
Employer, except to the extent such activities are unrelated
to, and not competitive with, the business, products and/or
services offered or provided by Employer or cannot adversely
affect Employer's relationship or volume of business with
such customers. Employee specifically acknowledges that this
restriction is necessary and reasonable for the protection of
Employer's customer goodwill, and that it will not
prevent Employee from being gainfully employed following
termination of employment with Employer because Employee will
be free to engage in any occupation, and even to compete with
Employer, as long as Employee honors the restrictions
contained in this paragraph concerning contact with certain
of Employer's customers.
Filing 10 at 1; Filing 1 at 3, ¶14.
the employment contract provided Glodowski would not solicit
or hire-on his own behalf or on behalf of an entity-any of
Kistler's employees with whom he worked for other
employment in competition with Kistler. Filing 1 at
3-4, ¶¶15, 16.
the contract provided Glodowski would never use or disclose
any of Kistler's private customer, financial, or business
information for any purpose other than furthering
Kistler's business interests. Filing 1 at 5,
stated purpose of the first two restrictions was to protect
Kistler's customer goodwill, and those two restrictions
were to last for a one-year period following the termination
of Glodowski's employment with Kistler. Filing at 1 at
3-4, ¶¶14, 15.
about April 10, 2019, Glodowski resigned from his employment
with Kistler and shortly thereafter started working for
Defendant, Patriot Crane and Rigging, LLC
(“Patriot”), one of Kistler's competitors.
Filing 1 at 5-6, ¶¶21, 26. Another Kistler
technician, Jeremy Bradford, left his employment at Kistler
within a day of Glodowski's resignation and also began
working for Patriot. Filing 1 at 6, ¶27.
Glodowski later told one of Kistler's employees that he
informed Patriot that he would not go work there unless he
could bring Bradford with him. Filing 1 at 6,
months after Glodowski resigned, a Kistler technician saw
Glodowski at the place of business of one of its customers,
Sioux City Foundry, and Sioux City Foundry stopped making
frequent breakdown calls to Kistler despite previously making
such calls several times a month. Filing 1 at 6-7,
¶¶31-32; Filing 16 at 1. Another Kistler
technician saw Glodowski at the place of business of another
customer, Valmont, and a third customer, Airlite Plastics,
stopped calling Kistler for service and will not return phone
messages left by Kistler's employees. Filing 1 at
7, ¶¶33-34; Filing 16 at 2. On
October 30, 2019, Kistler Operations Manager Connie Skalka
emailed Superior Industries (“Superior”), a prior
customer of Kistler, to offer to schedule their annual hoist
inspections. Filing 1 at 8, ¶38; Filing
16 at 2. Superior responded Patriot and Glodowski had
already performed the inspection. Filing 1 at 8,
¶39. Kistler argues that Glodowski, with support,
encouragement, and/or incentives from Patriot, continues to
breach his contract by soliciting Kistler's customers and
employees and using its confidential information. Filing
1 at 8, ¶40.
preliminary injunction hearing, Kistler offered an affidavit
and a declaration from Laura McElligott, co-owner of Kistler,
in addition to its Verified Complaint and a copy of the
employment contract between Kistler and Glodowski. McElligott
listed eighty-four Kistler customers with whom Glodowski did
business and had contact during his time with Kistler.
Filing 32 at 3-4.
submitted the declarations of Jack Tarr and James Glodowski
in opposition to the motion for preliminary injunction.
Filing 30; Filing 31. Tarr, Patriot's
Operations and Sales Manager, averred that the crane-service
business has “a limited universe of customers in the
Midwest.” Filing 30 at 1. He further stated
that while Glodowski is not responsible for sales at Patriot,
his position as Service Manager “does require him to
have contact with the customer in order to define the scope
of work to be performed as well as to timely schedule the
work.” Filing 30 at 2. Tarr stated that
Superior was the only customer that previously did business
with Kistler who started doing business with Patriot after
Glodowski was hired. Filing 30 at 5. Tarr provided a
list of eight customers, including Superior, who hired
Patriot because they were unsatisfied with Kistler.
Filing 30 at 5.
declaration stated that he has not solicited any of
Kistler's customers on behalf of Patriot. Filing 31
at 2. He averred the only Kistler customer to start
doing business with Patriot after his hire was Superior and
that he did not initiate the contact with Superior.
Filing 31 at 3. Glodowski stated, “Superior
Industries' Maintenance Manager, Heath Shalon, contacted
me about services that could be performed by Patriot. . . .
Mr. Shalon was unhappy with the services provided by Kistler
and, for that reason, he sought work from Patriot.”
Filing 31 at 3.
motion states it seeks a preliminary injunction preventing
Glodowski and Patriot from “directly or indirectly,
soliciting, contacting, servicing, contracting with, or
accepting business from customers of Kistler with whom
Glodowski did business and had personal contact while
employed by Kistler” for one year. Filing 4 at
2-3. However at the hearing, Kistler modified its
request to only enjoin Patriot from working with prior
Kistler customers if Glodowski has direct contact with the
customers or plays a role in recruiting the customers to
Patriot. As the Court understands its modified request,
Kistler no longer seeks to enjoin Patriot from doing business
with prior Kistler customers if Glodowski has no involvement
with them. Kistler further seeks a preliminary injunction
preventing Patriot and Glodowski “and all persons
acting in concert or active participation with them for a
period of two years from the date of the Court's order
from directly or indirectly using, disclosing, or
transmitting” confidential information Glodowski
obtained during his employment at Kistler and preventing
Glodowski and Patriot from destroying any data relevant to
Kistler's claim. Filing 4 at 2-3.
deciding a motion for a preliminary injunction, the court
must consider “(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.”
Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d
109, 113 (8th Cir. 1981). “A preliminary injunction is
an extraordinary remedy . . . .” Roudachevski v.
All-Am. Care Ctrs., Inc., 648 F.3d 701, 705 (8th Cir.
2011) (citing Watkins, Inc. v. Lewis, 346 F.3d 841,
844 (8th Cir. 2003)). The burden of establishing the