Superior Performers, Inc. v. Meaike, 1:13CV1149
| Decision Date | 11 April 2014 |
| Docket Number | 1:13CV1149 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | SUPERIOR PERFORMERS, INC. d/b/a NATIONAL AGENTS ALLIANCE, Plaintiff, v. SHAWN L. MEAIKE, MARC J. MEADE, BRYANT STONE, FRANK EUFEMIA, JAIME EUFEMIA, and MICHAEL SIZER, Defendants. |
This matter is before the Court on a Motion for Preliminary Injunction [Doc. #13] filed by Plaintiff Superior Performers, Inc., d/b/a National Agents Alliance ("Plaintiff" or "NAA"). Defendants are Shawn L. Meaike, Marc J. Meade, Bryant Stone, Frank Eufemia, Jaime Eufemia, and Michael Sizer ("Defendants"). The Court previously granted Plaintiff's Motion for Temporary Restraining Order ("TRO") [Doc. #36], which expires upon issuance of this Order, pursuant to the Court's statement to that effect at the March 5, 2014 hearing on Plaintiff's Motion for Preliminary Injunction. Thereafter, the ruling of the Court in the present Order will govern the parties, unless there are future Orders by the Court.
In response to Plaintiff's Motion for Preliminary Injunction, Defendants filed a Response in Opposition to Plaintiff's Motion for Preliminary Injunction [Doc. #48] with declarations by each Defendant, a "Supplemental Brief" in Opposition to the Motion for Preliminary Injunction and Motion to Compel Letters Related to the TRO or the March 5, 2014 Hearing [Doc. #68], a Reply to Plaintiff's Response to the Supplemental Brief [Doc. #75], andtwo Motions to Strike [Docs. #44, #65] the affidavits and declarations that Plaintiff filed in support of its Motion for Preliminary Injunction. Additionally, Plaintiff filed a Reply to Defendants' Response in Opposition to Plaintiff's Motion for Preliminary Injunction [Doc. #57], supplemental evidence in addition to that which was filed with the Motion for Preliminary Injunction, a Response to Defendants' Supplemental Brief [Doc. #70], and a Response in Opposition to Defendants' first Motion to Strike [Doc. #56]. These Motions are ripe for review,1 upon conclusion of the Court's March 5, 2014 hearing on the Motion for Preliminary Injunction [Doc. #13]. For the reasons set forth below, the Court will grant in part and deny in part Plaintiff's Motion for Preliminary Injunction [Doc. #13], deny Defendants' Motions to Strike [Docs. #44, #65], and deny as moot Defendants' Motion to Compel [Doc. #68].
For purposes of disposing of Plaintiff's Motion for Preliminary Injunction, the evidence presented thus far tends to show the following facts. Plaintiff, doing business as National Agents Alliance ("NAA"), is an Independent Marketing Organization and Managing General Agent for various life insurance companies. Plaintiff earns a portion of the commissions made by NAA agents selling life insurance issued by those insurance companies. NAA agents also recruit other agents to work for NAA, and the recruiting agents then earn an extra commissionon sales made by any new agents they recruit. The newly recruited agents are called "Downline Agents," and when they join, both the Downline Agent and the recruiting agent sign an Agent Agreement with Plaintiff. In the course of working for Plaintiff, agents are required to, among other things, buy "leads" (names and contact information for people who are supposedly interested in buying insurance) from Plaintiff, and then cold call those leads in hopes of eventually selling life insurance to those individuals.
When Defendants individually began working as NAA agents, they each signed an Agent Agreement with Plaintiff. Then in order to access the website where the leads are retrieved, they had to periodically electronically sign, or "click through," an Agent Agreement to reaffirm their consent to its terms and conditions. In multiple Agent Agreements clicked through by each Defendant, including the most recent Agreements, there is a restrictive covenant that purports to restrict these agents' freedom to interact with any current NAA employee or independent contractor. (E.g., Ex. A - Pl.'s Mot. for Prelim. Inj. [Doc. #15-1], ¶ 15 at 10.) This restrictive covenant reads as follows:
Non-Solicitation of Employees and Independent Contractors. During the Restriction Period, the Independent Contractor shall not, directly or indirectly: (a) solicit for the provision of services or employment any employee or independent contractor of NAA or its Affiliates, (b) advise or recommend to any other person that they employ or solicit for provision of services any employee or independent contractor of NAA or its Affiliates, or (c) encourage or advise such employees or independent contractors to sever, discontinue or not renew any agreement or relationship to NAA or its Affiliates, or (d) otherwise establish or seek to establish any business relationship with any such employee or independent contractor relating to the sale of Life Insurance Products.
(Id.) The Agent Agreement defines the restriction period as "the period of time Independent Contractor provides services to NAA or services as a down-line agent of NAA and for a periodof two (2) years following the termination of Independent Contractor's provision of such services." (Id. ¶ 10g at 9.)
Additionally, Defendant Meaike, Defendant Meade, and Defendant Stone also entered into Management Agreements, which included a restrictive covenant with nearly identical restrictions. (E.g., Ex. B - Pl.'s Mot. for Prelim. Inj. [Doc. #15-2], ¶ 8 at 5.) The restrictive covenant in these Agreements reads as follows:
Each Defendant's independent contractor relationship with Plaintiff was terminated in either December 2013 or January 2014.2 Each Defendant has now joined Defendant Meaike's new venture, Family First Life ("FFL"). As of the March 5, 2014 hearing, it appears that approximately 186 of Plaintiff's current and former agents have signed on to work with FFL. (Sheckells Aff. [Doc. #59], ¶ 6 at 2.) Of those 186, approximately 121 of them are current NAA agents now working for FFL. (Id.) Plaintiff alleges that, at a minimum, Defendants are inviolation of the restrictive covenant because they have "otherwise establish[ed]" a business relationship with these 121 current NAA employees or independent contractors.3 Plaintiffs also allege that some or all of these 121 agents were solicited directly or indirectly by Defendants, which Defendants dispute.4
The Court previously granted Plaintiff's Motion for TRO [Doc. #36], which remained in effect from the March 5, 2014 hearing until this Order was issued. At the March 5, 2014 hearing on Plaintiff's Motion for Preliminary Injunction [Doc. #13], the Court heard arguments as to the Motion and the Court has reviewed evidence submitted by both parties. Plaintiff's Motion for Preliminary Injunction rests on its breach of contract claim. Specifically, Plaintiff seeks to continue enjoining Defendants "and those in active concert with them" from thefollowing conduct:
(Pl.'s Mot. for Prelim. Inj. [Doc. #13], at 1-2.) Plaintiff later contended in its Reply and at the hearing that its unfair and deceptive trade practices claim forms a separate basis for injunctive relief. .) However, the only basis upon which Plaintiff sought preliminary injunctive relief in its Motion for Preliminary Injunction was on the breach of contract claim.5 Therefore, the Court will not consider the alternative basis for injunctive relief raised for the first time in Plaintiff's Reply Brief. See Fed. R. Civ. P. 7(b)(1)(B) ( ).
Prior to considering the merits of Plaintiff's Motion for Preliminary Injunction, the Court notes that Defendants filed two Motions to Strike Plaintiff's evidence in whole or in part, arguing that the affidavits submitted in support of the Motion for Preliminary Injunction were either untimely presented or they contain inadmissible hearsay, speculation, and/or a lack offirst-hand knowledge. (Mots. to Strike [Docs. #44, #65].) While Federal Rule of Civil Procedure 6(c)(2) does require any supporting affidavits to be served with a motion, the Court has discretion to consider affidavits that were not filed with the accompanying motions in preliminary injunction hearings. See 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2949, at 237 (2013) ( ...
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