United States District Court, N.D. Georgia, Atlanta Division
ANDREW WELLS, BARRY FRASER, BRENTON COLLINS, DIRK BOTTERBUSCH, CAREY STEWART, CHARLES PEREZ, BENJAMIN SHUGART, AND KASHIF CHOUDRY, Plaintiffs,
DAUGHERTY SYSTEMS, INC., Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Plaintiffs' Emergency Motion for Temporary Restraining Order  ("TRO Motion") and Motion for Leave to File Supplemental Brief in Support of Emergency Motion for Temporary Restraining Order  ("Motion for Leave"). Also before the Court is Defendant Daugherty Systems, Inc.'s ("Defendant") Motion to Quash Subpoena [16, 17] ("Motion to Quash").
On August 25, 2014, Plaintiffs filed their Amended Complaint  ("Complaint") against Defendant. Plaintiffs are former employees of Defendant who terminated their employment and established their own consulting firm, named Aspirent, in Georgia. (Complaint ¶¶ 1-2, 22-24). Plaintiffs, as part of their employment with Defendant, executed employment agreements that contained restrictive covenants (the "Restrictive Covenants") limiting Plaintiffs' right to compete with Defendant. (Complaint ¶¶ 26-30). Plaintiffs seek a declaration from the Court that the Restrictive Covenants to which they agreed are overbroad and unenforceable under Georgia law, and they seek to enjoin Defendant from "enforce[ing] (through court action or otherwise) the restrictive covenants [or] taking any other action to preclude Plaintiffs from engaging in the activities which the foregoing restrictive covenants purport to prohibit. (Complaint ¶¶ 41, 47).
On August 25, 2014, Plaintiffs filed their TRO Motion, requesting that the Court temporarily restrain Defendant from:
(i) attempting to enforce (through court action or otherwise) the unenforceable restrictive covenants contained in their employment agreements; and (ii) taking any other action that purports to intimidate and preclude customers or potential customers from working with Plaintiffs, including making false statements that Plaintiffs are unethical and are violating contractual obligations, and that Plaintiffs cannot be legally allowed on their customers' property, until such time as Plaintiffs' motion for summary judgment on its declaratory judgment claim is resolved.
(TRO Motion ¶ 9).
The Court set a hearing on the TRO Motion for September 12, 2014. On September 5, 2014, Defendant filed its Response in Opposition  ("Response") to the TRO Motion, and on September 9, 2014, Plaintiffs filed their Reply  to the Response ("Reply").
Plaintiffs subpoenaed Mr. Ron Daugherty, Defendant's CEO, and John Wirth, Defendant's Senior Vice President, to appear at the September 12, 2014 hearing. On September 10, 2014, Defendant filed its Motion to Quash Plaintiffs' subpoenas.
On September 11, 2014, the Court conducted a telephonic conference with counsel for the parties to discuss the scope of the TRO Motion and the hearing set for September 12, 2014. The Court, after considering the issues presented at the telephonic conference and upon review of the TRO Motion, Response, and Reply, concluded that it had sufficient information to decide the TRO Motion without the necessity of oral argument, and cancelled the hearing.
On September 11, 2014, Plaintiffs filed their Motion for Leave and their proposed "Response to Reply to Response to Motion"  ("Surreply"). On September 12, 2014, Defendant filed its supplemental response  ("Sur-Surreply") in opposition to the TRO Motion.
A. Legal Standard
To be eligible for a temporary restraining order or preliminary injunctive relief under Rule 65, a movant must establish each of the following elements: (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. See Schiavo ex rel. Schindler v. Schiavo , 403 F.3d 1223, 1225-26 (11th Cir. 2005); Parker v. State Bd. of Pardons and Paroles , 275 F.3d 1032, 1034-35 (11th Cir. 2001). Preliminary injunctive relief is a drastic and extraordinary remedy which should not ...