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Centimark Corporation, A Pennsylvania Corporation v. Donald Lavine

July 28, 2011

CENTIMARK CORPORATION, A PENNSYLVANIA CORPORATION,
PLAINTIFF,
v.
DONALD LAVINE, AN INDIVIDUAL,
DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM OPINION RE: PLAINTIFF'S MOTION TO CONVERT TEMPORARY RESTRAINING ORDER TO A PRELIMINARY INJUNCTION (DOC. NO. 42) AND DEFENDANT'S MOTION TO DISSOLVE OR MODIFY TEMPORARY RESTRAINING ORDER (DOC. NO. 50)

I.Introduction

Presently before this Court are two motions, the first being Plaintiff, CentiMark's Motion to Convert Temporary Restraining Order ("TRO") to a Preliminary Injunction (Doc. No. 42), and the second being Defendant, Donald Lavine's Motion to Dissolve or Modify TRO (Doc. No. 50). After careful consideration of Plaintiff's Motion to Convert TRO to a Preliminary Injunction (Doc. No. 42), Memorandum in support thereof (Doc. No. 45), and Defendant's brief in opposition thereto (Doc. No. 65), Plaintiff's Motion will be GRANTED. As to the second motion, the Court has considered Defendant's Motion to Dissolve or Modify TRO (Doc. No. 50), Brief in support thereof (Doc. No. 54), and Plaintiff's Brief in opposition thereto (Doc. No. 61). Defendant's Motion to Dissolve or Modify TRO will be DENIED.

II.Factual Background

On June 8, 2011, CentiMark filed a Complaint against Lavine alleging breach of an Employment Agreement because of his post-employment actions. Doc. No. 1. CentiMark filed a Motion for a TRO and Preliminary Injunction on June 6, 2011, seeking that Lavine be enjoined from: 1) working for a direct competitor; 2) actively soliciting the same customers that were his accounts while employed by CentiMark; 3) diverting business and customers away from CentiMark to a competitor; and 4) misappropriating CentiMark's confidential information. Doc. No. 4. On June 20, 2011, CentiMark's Motion was granted. Doc. No. 18. Subsequently, on June 29, 2011, Lavine filed a Motion to Dismiss for lack of personal jurisdiction or in the alternative to change venue. Doc. No. 23. Said Motion was denied by this Court on July 20, 2011. Doc. No. 62.

This Court incorporates further facts as previously set forth in Doc. No. 62, 1-3.

III. Discussion

In support of its Motion to Convert TRO to a Preliminary Injunction, CentiMark argues that: 1) it has demonstrated a reasonable probability on the merits because Lavine knowingly entered into his Employment Agreement with adequate consideration and then breached its terms; 2) CentiMark will suffer irreparable harm due to the loss of customer relationships, goodwill, and confidential information unless injunctive relief is granted; 3) greater harm to Lavine would not result from an injunction to preserve the status quo; and 4) the requested injunction will serve the public interest by protecting important business tools. Doc. No. 45.

In support of his Motion to Dissolve or Modify TRO, Lavine argues that: 1) the Employment Agreement is not ancillary to his employment and thus is unenforceable;

2) enforcement of the covenant not to compete of the Employment Agreement is not reasonable because CentiMark is overreaching by attempting to keep Lavine unemployed even though, he was discharged involuntarily; and 3) if it is not dissolved, the TRO should be modified to allow him to earn a living. Doc. No. 54. Because CentiMark and Lavine's Motions address similar points and both involve application of the same legal principles, they will be addressed together in this Memorandum Opinion.

According to applicable case law, when considering a motion for preliminary injunctive relief or a TRO, this Court must consider four factors: 1) whether the movant has shown a reasonable probability of success on the merits; 2) whether the movant would be irreparably injured by denial of such relief; 3) whether granting the preliminary injunction or TRO will result in greater harm to the nonmoving party; and 4) whether granting the preliminary injunction would be in the public interest. S.I. Handling., Inc. v. Heisley, 753 F. 2d 1244, 1254 (3rd Cir. 1985). The Court will consider these factors in turn.

1.CentiMark's Reasonable Probability of Success on the Merits

Both CentiMark's argument that they have demonstrated a reasonable probability of success on the merits and Lavine's argument that CentiMark has not demonstrated the same are premised on whether Lavine entered into a valid, enforceable Employment Agreement with CentiMark, which undisputedly contained a covenant not to compete and other post-employment obligations. Many of the same well-briefed arguments on this issue were previously brought before this Court in ...


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