United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND TEMPORARY RESTRAINING
ANNEMARIE CARNEY AXON, UNITED STATES DISTRICT JUDGE
case is before the court on Plaintiff McGriff, Seibels &
Williams, Inc.'s (“MSW”) motion for a
temporary restraining order. (Doc. 12). Defendants Paul
Sparks, Darren Sonderman, David McMahan, John Tanner, and J.
Gregory McCollister previously worked for MSW as executives
in MSW's Financial Services Division. Defendants now work
for an MSW competitor.
alleges in its amended verified complaint that Defendants
have breached the terms of their employment agreements by
soliciting MSW clients and employees and that they have
interfered with MSW's business relationships as a result.
MSW asserts claims against Defendants for breach of contract,
tortious interference with business relations, breach of
fiduciary duty, and conspiracy to interfere with business
to Rule 65 of the Federal Rules of Civil Procedure, MSW seeks
a temporary restraining order enjoining Defendants from using
MSW's confidential, proprietary or trade secret
information; soliciting MSW's clients and employees;
interfering with MSW's business relationships; and
destroying electronic devices and data. (Doc. 12 at 9).
Defendants did not file a substantive response in opposition
to MSW's request for temporary injunctive relief.
Instead, Defendants filed a motion to dismiss, or
alternatively, motion to stay, asking the court to abstain
from exercising jurisdiction over this case pending
resolution of parallel litigation in Georgia state and
federal court. (Doc. 16). The court declines Defendants'
invitation and DENIES Defendants'
reasons stated on the record during an August 14, 2019
hearing and for the reasons explained below, the court
GRANTS IN PART and DENIES IN
PART MSW's request for a temporary restraining
order. (Doc. 13). With respect to Defendants Sparks,
Sonderman, and McCollister, the court GRANTS
MSW's motion to the extent MSW seeks to enjoin these
Defendants from soliciting MSW's clients and employees
and from interfering with MSW's business relationships.
The court DENIES MSW's motion as it
relates to other forms of relief against Sparks, Sonderman,
and McCollister. The court also DENIES
MSW's motion with respect to Defendants Tanner and
McMahan because at this stage, Plaintiffs have not advanced
substantive allegations against these Defendants.
injunctive relief “is an extraordinary remedy.”
Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir.
2011). To prevail on an application for a temporary
restraining order, a plaintiff must establish: “(1) a
substantial likelihood of success on the merits; (2) that
irreparable injury will be suffered if the relief is not
granted; (3) that the threatened injury outweighs the harm
the relief would inflict on the non-movant; and (4) that
entry of the relief would serve the public interest.”
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223,
1225-26 (11th Cir. 2005).
respect to the first prong, MSW need only demonstrate a
likelihood of success on the merits with respect to one of
its claims. See Schiavo ex rel. Schindler v.
Schiavo, 403 F.3d 1289, app. at 1298 (11th Cir. 2005)
(“Once again the critical issue is whether Plaintiffs
have established a substantial likelihood of success on the
merits of any one of Counts Six through Ten.”) (quoting
Schiavo ex rel. Schindler v. Schiavo, 2005 U.S.
Dist. LEXIS 4609, at *3 (M.D. Fla. Mar. 25, 2005));
United States v. Jenkins, 714 F.Supp.2d 1213, 1220
(S.D. Ga. 2008) (“In order to demonstrate that it is
likely to prevail on the merits, Plaintiff need only
demonstrate the likelihood of prevailing on one cause of
action.”). MSW has demonstrated a likelihood of success
on the merits of its tortious interference with business
establish tortious interference with business relations, a
plaintiff must prove: “1) the existence of a contract
or business relation; 2) the defendant's knowledge of the
contract or business relation; 3) intentional interference by
the defendant with the contract or business relation; 4) the
absence of justification for the defendant's
interference; and 5) damage to the plaintiff as a result of
the interference.” Tom's Foods, Inc. v.
Carn, 896 So.2d 443, 453 (Ala. 2004) (quotation marks
alleges that Defendants Sparks, Sonderman, and McCollister
were aware of MSW's various business relationships
because they had worked for MSW for years. (Doc. 11 at
¶¶ 3-4, 8, 13, 14, 23-24, 75, 88; Doc. 20-1). MSW
alleges that Defendants intentionally interfered with those
relationships without justification by soliciting MSW's
clients and that MSW has been damaged as a result. (Doc. 11
at ¶¶ 71-76, 78, 89-90). Therefore, at this
juncture, MSW has demonstrated a likelihood of success on the
merits of its tortious interference claim against Defendants
Sparks, Sonderman, and McCollister.
also has demonstrated that it will suffer irreparable harm in
the absence of temporary injunction. “An injury is
irreparable if it cannot be undone through monetary
remedies.” Scott v. Roberts, 612 F.3d 1279,
1295 (11th Cir. 2010) (quotation marks omitted). “Even
when a later money judgment might undo an alleged injury, the
alleged injury is irreparable if damages would be
‘difficult or impossible to calculate.'”
Id. (quoting Fla. Businessmen for Free Enter. v.
City of Hollywood, 648 F.2d 956, 958 n.2 (5th Cir. Unit
B June 1981)). MSW already has lost ten employees in less
than one month based on the conduct alleged in the amended
complaint, and at least three of MSW's clients have been
solicited. (Doc. 11 at ¶¶ 71-73, 75, 77). It is
impossible for the court to calculate monetary damages that
would compensate MSW for the loss of good will and potential
business that it otherwise might have retained but for the
conduct alleged in the amended complaint.
court also finds that the threatened injury to MSW outweighs
any potential harm to the Defendants. This is particularly so
in light of Defendants' counsel's representation to
the court during the August 14, 2019 hearing that counsel has
instructed Defendants not to violate the terms of the very
MSW employment agreements that are the subject of this
lawsuit, pending decisions in the parallel Georgia
the court finds that a temporary restraining order under
these circumstances is not adverse to the public interest.
the court ORDERS as follows: