Automated Marketing Systems, Inc. v. Martin, 72-1035.

Decision Date05 October 1972
Docket NumberNo. 72-1035.,72-1035.
Citation467 F.2d 1181
PartiesAUTOMATED MARKETING SYSTEMS, INC., Plaintiff-Appellant, v. Donald R. MARTIN et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Robert E. Wagner, Chicago, Ill. (Carl F. Eiberger, Denver, Colo., on the brief), for plaintiff-appellant.

Richard C. Landrum, Denver, Colo., for defendants-appellees.

Before HILL, BARRETT and DOYLE, Circuit Judges.

HILL, Circuit Judge.

This is an appeal from the denial by the United States District Court for the District of Colorado of appellant's request for a preliminary injunction, seeking to enjoin appellees from further contacting or soliciting former customers of appellant, and from using confidential commercial information of appellant.

Automated Marketing Systems, Inc. (Automated) is a holding company with various divisions, one of which is Sales Follow-Up Company (Sales Follow-Up). That division dealt in a service provided to automobile dealers called an "after sales program" consisting of mailed communications from the automobile dealer to his customers. The purpose of this service was to maintain contact and promote good relations between the dealer and the customer, with the hope of receiving the customer's future trade when he purchased another automobile. The mailings provided by Sales Follow-Up on behalf of the dealer contained, among other things, advice as to the most advantageous time for the customer to trade his car, customary holiday greeting cards, gifts and periodic service reminders.

Martin was initially employed by Automated in its Sales Follow-Up as a division sales manager in late 1967 and given responsibility for selling the after sales program to dealers in the company's Colorado region, with emphasis on the Denver area. In June, 1968, Martin was promoted to regional manager and given responsibility as supervisor of the salesmen of a large area of the central United States. In November, 1968, he was transferred to San Francisco, California, as regional manager of that area. A contract of employment was signed by Martin at that time which contained the restrictive covenant that forms one of the bases of Automated's requests for preliminary injunction. Martin was subsequently promoted to assistant national sales manager, then to national sales manager with responsibility for the entire United States. No employment contracts were ever executed at the times of his promotions to these subsequent positions. Martin was terminated by Sales Follow-Up on August 15, 1970. In November, 1970, Martin and Grothe established Consumer Contact Corporation, offering essentially the same type of after sales program as that offered by Automated.

Automated filed suit on August 23, 1971, and, after first outlining the development and characteristics of the after sales program, alleged various items which it contends were confidential commercial property.1 Appellees in their answer admitted the confidential value of certain of the items,2 but denied the confidential value of the remaining items. Automated sought recovery under five claims, four of which involved, either partially or entirely, claims for injunctive relief. The first claim alleged the breach of the restrictive covenant of an employment contract preventing Martin from diverting away customers of Automated.3 The third and fifth claims alleged unfair competition by Martin in his use, on behalf of Consumer Contact Corporation, of Automated's confidential commercial property and secrets, and in his offer of confusingly similar services which were the product of Automated's research in development of the after sales program technology. The fourth claim alleged that Martin had induced a former divisional manager of Automated to terminate his employment with Automated for the purpose of soliciting his former dealer accounts as a representative of Consumer Contact Corporation, in violation of the restrictive covenant of his employment contract with Automated.

The necessary showing to obtain a preliminary injunction was defined by this court in Crowther v. Seaborg, 415 F.2d 437 (10th Cir. 1969), where, at 439 we stated:

In hearings upon motions for temporary or preliminary injunctive relief, the burden is upon the one requesting such relief to make a prima facie case showing a reasonable probability that he will ultimately be entitled to the relief sought. The applicant has the additional burden of showing a right to
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39 cases
  • ETP Rio Rancho Park, LLC v. Grisham
    • United States
    • U.S. District Court — District of New Mexico
    • 8 de fevereiro de 2021
    ...171 L.Ed.2d 1 (2008) )). The movant bears the burden of demonstrating all four prongs’ satisfaction. See Automated Mktg. Sys., Inc. v. Martin, 467 F.2d 1181, 1183 (10th Cir. 1972). "[A]ny modified test which relaxes one of the prongs for preliminary relief and thus deviates from the standar......
  • ETP Rio Rancho Park, LLC v. Grisham
    • United States
    • U.S. District Court — District of New Mexico
    • 26 de fevereiro de 2021
    ...171 L.Ed.2d 1 (2008) )). The movant bears the burden of demonstrating all four prongs’ satisfaction. See Automated Mktg. Sys., Inc. v. Martin, 467 F.2d 1181, 1183 (10th Cir. 1972). "[A]ny modified test which relaxes one of the prongs for preliminary relief and thus deviates from the standar......
  • Courthouse News Serv. v. New Mex. Admin. Office of the Courts
    • United States
    • U.S. District Court — District of New Mexico
    • 8 de outubro de 2021
    ...171 L.Ed.2d 1 (2008) )). The movant bears the burden of demonstrating all four prongs’ satisfaction. See Automated Mktg. Sys., Inc. v. Martin, 467 F.2d 1181, 1183 (10th Cir. 1972). "[A]ny modified test which relaxes one of the prongs for preliminary relief and thus deviates from the standar......
  • Gardner v. Schumacher
    • United States
    • U.S. District Court — District of New Mexico
    • 13 de janeiro de 2021
    ...)). The movant bears the burden of demonstrating that those equitable factors weigh in its favor. See Automated Mktg. Sys., Inc. v. Martin, 467 F.2d 1181, 1183 (10th Cir. 1972)."[T]he limited purpose of a preliminary injunction ‘is merely to preserve the relative positions of the parties un......
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1 books & journal articles
  • An Empirical Look at Preliminary Injunctions in Challenges Under Environmental Protection Laws
    • United States
    • Environmental Law Reporter No. 47-5, May 2017
    • 1 de maio de 2017
    ...Motor Corp., 470 F.2d 1323, 1326 (8th Cir. 1973) (using “substantial probability of success”); Automated Mktg. Sys., Inc. v. Martin, 467 F.2d 1181, 1183 (10th Cir. 1972) (using “reasonable probability” of success). Yet, these “verbal diferences do not seem to relect substantive disagreement......

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