Zep Manufacturing Corporation v. Haber, Civ. A. No. 14154.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Writing for the CourtINGRAHAM
Citation202 F. Supp. 847
PartiesZEP MANUFACTURING CORPORATION, Plaintiff, v. Robert F. HABER, Defendant.
Docket NumberCiv. A. No. 14154.
Decision Date08 March 1962

202 F. Supp. 847

ZEP MANUFACTURING CORPORATION, Plaintiff,
v.
Robert F. HABER, Defendant.

Civ. A. No. 14154.

United States District Court S. D. Texas, Houston Division.

March 8, 1962.


Baker, Botts, Shepherd & Coates, Houston, Tex. (Robert A. White), Houston, Tex., and Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for plaintiff.

Herbert N. Lackshin and William E. Ladin, Houston, Tex., for defendant.

INGRAHAM, District Judge.

An application for a preliminary injunction is before the court, with jurisdiction alleged on the basis of diversity of citizenship and an amount in controversy exceeding $10,000, exclusive of interest and costs. The application is opposed by defendant's motion to dismiss for failure to state a claim and for lack of jurisdiction.

Plaintiff, Zep Manufacturing Corporation, asks this court to issue a temporary restraining order against defendant, Robert F. Haber, during the pendency of its action for a permanent injunction against defendant for alleged violations of a covenant not to compete. Until January 20, 1962, defendant was under contract to plaintiff, a manufacturer and distributor of maintenance and sanitation supplies, as a salesman and sales supervisor. The contract of employment contained a restrictive covenant not to compete with plaintiff in a specified area for one year after termination of employment. Defendant terminated his employment with plaintiff on January 20, 1962, and shortly thereafter began selling for Titan Chemical Corporation, in competition with plaintiff. Because this court finds it has no jurisdiction over the dispute, it is unnecessary to relate further details of the covenant or of defendant's conduct alleged to be in violation thereof.

202 F. Supp. 848

This action must be dismissed because the evidence fails to show that more than $10,000 is in controversy. Although plaintiff's complaint states that more than $10,000 is involved, the facts adduced during the interlocutory hearing and the facts set out in the briefs of the parties do not support this statement. The prayer asks nothing but injunctive relief. It is not ancillary to any other action asserted.

In a suit for an injunction, the amount in controversy is determined by the value of the object to be gained by the plaintiff. Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U.S. 121, 36 S.Ct. 30, 60 L.Ed. 174 (1915). In terms promulgated by this circuit, "jurisdiction is to be tested by the value of the right sought to be protected against interference." Seaboard Finance Co. v. Martin, 244 F.2d 329 (5th Cir. 1957). Although some courts have held that the amount in controversy is the benefit to the plaintiff from the injunction, or the cost to the defendant of complying with it, whichever is greater (See,...

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11 practice notes
  • Hedberg v. State Farm Mutual Automobile Insurance Co., No. 17797.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 30 Agosto 1965
    ...Co., supra, 344 F.2d 730, 733-34 (8 Cir. 1965). Hedberg, in support of his position, relies particularly on Zep Mfg. Co. v. Haber, 202 F.Supp. 847 (S.D.Texas 1962) and on our own cases of S. S. Kresge Co. v. Amsler, 99 F.2d 503 (8 Cir. 1938), cert. denied 306 U.S. 641, 59 S.Ct. 582, 83 L.Ed......
  • Basicomputer Corp. v. Scott, No. 91 CV 2178.
    • United States
    • U.S. District Court — Northern District of Ohio
    • 26 Diciembre 1991
    ...not subject to competition from each defendant, and its value subject to competition from each defendant. E.g. Zep Mfg. Corp. v. Haber, 202 F.Supp. 847 (D.Tex.1962); Burndy Corp. v. Cahill, 196 F.Supp. 619, 622 (D.Minn.1961) (vacated on other grounds, 301 F.2d 448 (8th In such an examinatio......
  • Melkus v. Allstate Ins. Co., No. 78-40120.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 3 Octubre 1980
    ...the Snow decision in dismissing consideration of Defendant's view point in this case. Snow v. Ford, supra and Zep Mfg. Corp. v. Haber, 202 F.Supp. 847 (SD Tex. 1962). The second approach taken by the courts considers both the Plaintiff's and the Defendant's viewpoints. Miller, supra, is one......
  • STATE OF LA. EX REL. GUSTE v. Fedders Corp., Civ. A. No. 81-630-B.
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • 24 Mayo 1982
    ...3 Sebert, Enforcement of State Deceptive Trade Practice Statutes, 42 Tenn.L.Rev. 689, 719-20 (1975). 4 E.g. Zep Mfg. Corp. v. Haber, 202 F.Supp. 847 (S.D.Tex.1962); Massachusetts State Pharmaceutical Ass'n. v. Federal Prescription Service, Inc., 431 F.2d 130 (8 Cir. 5 E.g. Family Motor Inn ......
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11 cases
  • Hedberg v. State Farm Mutual Automobile Insurance Co., No. 17797.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 30 Agosto 1965
    ...Co., supra, 344 F.2d 730, 733-34 (8 Cir. 1965). Hedberg, in support of his position, relies particularly on Zep Mfg. Co. v. Haber, 202 F.Supp. 847 (S.D.Texas 1962) and on our own cases of S. S. Kresge Co. v. Amsler, 99 F.2d 503 (8 Cir. 1938), cert. denied 306 U.S. 641, 59 S.Ct. 582, 83 L.Ed......
  • Basicomputer Corp. v. Scott, No. 91 CV 2178.
    • United States
    • U.S. District Court — Northern District of Ohio
    • 26 Diciembre 1991
    ...not subject to competition from each defendant, and its value subject to competition from each defendant. E.g. Zep Mfg. Corp. v. Haber, 202 F.Supp. 847 (D.Tex.1962); Burndy Corp. v. Cahill, 196 F.Supp. 619, 622 (D.Minn.1961) (vacated on other grounds, 301 F.2d 448 (8th In such an examinatio......
  • Melkus v. Allstate Ins. Co., No. 78-40120.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 3 Octubre 1980
    ...the Snow decision in dismissing consideration of Defendant's view point in this case. Snow v. Ford, supra and Zep Mfg. Corp. v. Haber, 202 F.Supp. 847 (SD Tex. 1962). The second approach taken by the courts considers both the Plaintiff's and the Defendant's viewpoints. Miller, supra, is one......
  • STATE OF LA. EX REL. GUSTE v. Fedders Corp., Civ. A. No. 81-630-B.
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • 24 Mayo 1982
    ...3 Sebert, Enforcement of State Deceptive Trade Practice Statutes, 42 Tenn.L.Rev. 689, 719-20 (1975). 4 E.g. Zep Mfg. Corp. v. Haber, 202 F.Supp. 847 (S.D.Tex.1962); Massachusetts State Pharmaceutical Ass'n. v. Federal Prescription Service, Inc., 431 F.2d 130 (8 Cir. 5 E.g. Family Motor Inn ......
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