A Palm Bay woman was sued by her former employer for breach of a noncompete agreement. Arcadier, Biggie & Wood, defended the woman and filed a Motion for Summary Judgment on her behalf. After reviewing the Motion for Summary Judgment the Judge found that she should prevail on her defenses as a matter of law. The case was brought in the Ninth Judicial Circuit Court Orange County Florida.
This order demonstrates how important it is to be represented by counsel at your deposition.
A copy of the judges order is attached below:
Order Granting Defendant’s Motion for Summary Judgment 48-2011-CA-015648-O
This cause coming before this Court on the Defendant’s Motion for Summary Judgment, the Court has reviewed the Defendant’s Motion for Summary Judgment, the Plaintiffs Response in Opposition, and the Defendant’s Reply. Oral arguments on the Motion for Summary Judgment were held and concluded on December 18, 2013. The Court finds as a matter of law the following:
Undisputed Material Facts
Defendant was an employee of Plaintiff. (Hall Dep. II pg. 5. 125 – pg. 6 1 4). During the course of her employment Defendant signed a contract agreeing not to compete against the Plaintiffs. (Def. Ex. 1). Defendant was terminated on May 13, 2011. (P. Amend. Compl.).
The non-compete agreement included 6 restrictive covenants. (Def. Ex. 1). The Plaintiff’s sued the Defendant alleging violations of three restrictive covenants. (P. Amend. Compl.). The covenants were Non-Disclosure, Third-Party Information/Relationships, and Non-Competition .
Defendant began working for for a new employer. (Def. Dep. II pg. 6 Ll 8).1 The new employer’s office is located on Conlan Boulevard in Palm Bay, Florida 32905 (Def. Dep. II pg. 221 L6 – 13). The Defendant has conceded that Superior is within the 75 mile radius outlined in the non-compete.
It is undisputed that Defendant’s job duties do not include solicitation of clients or potential employees on behalf of the new employer within the 75 mile radius. (Def. Dep. II pg. 214 L21
– pg. 215 L2).
It is undisputed that Defendant has not placed temporary employees with any fomer clients of Plaintiff, that there is no overlap between clients of Plaintiff and the new employer, that the Plaintiffs and new employer use different computer systems to maintain their staffing operations, and that all work performed by Defendant are for long standing clients of the new employer that are located outside of the 75 mile radius.
It is undisputed that Defendant did not receive any specific or specialized training while employed by the Plaintiffs, (Def. Dep. II pg. 15 Ll4 – 16), and that she already obtained relevant training and experience prior to her employment with the Plaintiffs.
Personal knowledge of the Plaintiffs’ Witnesses.
“Witness 1” is the owner of Plaintiff, and is the Plaintiffs’ witness with the most knowledge relating to the business practices, trade secrets, confidential information, and policies of the Plaintiffs.7
“Witness 1” does not know if Defendant disclosed any of the Plaintiffs policies, trade secrets, or confidential information. “Witness 1” is unaware of anyone with personal knowledge or any proof whatsoever regarding Defendant disclosing policies, trade secrets, or confidential information of the Plaintiff or breaching any other restrictive covenant in the agreement.
Two companies have left Plaintiff since Defendant has left but the Plaintiffs cannot contribute the loss of business to Defendant. (W1. Dep. II pg. 24 L19 – 22). “Witness “1 does not know if the Plaintiffs have been damaged by Defendant’s departure and employment with her new employer. (W1. Dep. I pg. 71 L4- 7).
The Plaintiff’s Trade Secrets.
The Plaintiffs’ witness with the most knowledge testified that the Plaintiffs’ trade secrets are flexibility with their clients, ID long term staffing contracts with their clients, payroll services, and background checks. The Plaintiff’s staffing business operates similarly to other staffing companies in the industry, the Plaintiff’s approximated that 15% of their competitors operate in a similar fashion. The Plaintiffs brought forth no evidence of what their trade secrets are worth.
Evidence Brought Forward by the Plaintiffs.
The Plaintiffs bring forth three pieces of evidence that they argue establish a genuine issue of material fact.
First the Plaintiff argues that testimony from the new employer establishes a genuine issue of material fact regarding whether or not Defendant disclosed trade secrets and confidential information. the employee testified:
“Q: Has [Defendant] given you any information in – that in her experience something would work better if you did it a certain way or anything like that? A: Best practices. Q: What type of best practices has she shared with you, if you know, but don’t speculate. A: Yeah. I don’t know specific, but just general best practices. Q: Okay. So there are occasions when you and [Defendant] discuss different ways of performing your job duties? A: Occasionally best practices. Q: So when you say ‘best practices,’ you mean that you discuss ways you have found that work well to do your job? A: Yes…. Q: Has [Defendant] ever discussed with you anything at all about [Plainiff]? A: No. (Employee Dep. pg. 26 L15 – 17). Q: Has she ever discussed with you anything about Plaintiff? A: No.” (Employee Dep. pg. 25 Ll 7 – pg. 26 L14); (Employee Dep. pg. 26 L18 – 20).
Second the Plaintiffs argue that Plaintiff is working for another staffing company physically located in the 75 miles radius.
Third the Plaintiffs point to Plaintiff’s testimony as an admission of breaching the contract. (Pl. Dep. II pg. 20 L3 – 17).
Conclusions of Law
Summary Judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Kitchen v. Ebonite Recreation Centers, Inc., 856 So. 2d 1083, 84-5 (5th DCA 2003) (citing Fla. R. Civ. P. 1.Sl0(c) and Fiselv. Wynns, 667 So.2d 761,764 (Fla.1996)).
A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the non-moving party. Kitchen, 856 So. 2d 1085 (citing Bruckner v. City of Dania Beach, 823 So.2d 167, 170 (Fla. 4th DCA 2002)).
Evidence relied upon by a party at the summary judgment stage of litigation must be admissible at trial. Holl v. Talcott, 191 So. 2d 40, 45 (Fla. 1966).
Testimony of Employee.
The issue is whether the testimony of the employee creates a material issue of fact with respect to whether Plaintiff disclosed confidential information, third party information, or trade secrets belonging to the Plaintiffs.
Under controlling statutes and case law in order for a noncompetition agreement to be enforceable the Plaintiff must come forward with specific identifiable misappropriations by the Defendant. See Passalacqua v. Naviant, Inc., 844 So. 2d 792, 796 (4th DCA 2003) (The Plaintiff failed to bring forth any identifiable misappropriations of trade secrets or confidential information therefore he cannot establish a legitimate business interest.) (citing Fla. Stat. § 542.335); University of Florida, Board a/Trustees v. Sana!, 837 So. 2d 512,515 (1st DCA 2003) (“A plaintiff seeking to enforce a restrictive covenant should be entitled to do so only if “it can demonstrate that the defendant has misappropriated (or threatens to misappropriate) identifiable assets” of the plaintiffs business.) (quotation omitted.).
The testimony of the employee talks about best practices in general and does not indicate that the Defendant disclosed any identifiable trade secret, confidential information, and/or practices of the Plaintiffs. Further the employee testified unequivocally that Defendant did not discuss anything regarding the Plaintiffs with him.
There is no evidence in the record of the Defendant disclosing or threatening to disclose any identifiable assets of the Plaintiffs. There is no evidence in the record of the new employer adopting the policies and practices of the Plaintiffs.
Further under Fla. Stat. § 688.002, “a trade secret must have independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use,” additionally confidential information must also have some type of value under Fla. Stat. § 552.335(1)(b)(2).
The Plaintiffs’ witness with the most knowledge testified that 15% of other staffing companies operate similarly to the Plaintiffs, and there was no evidence put forth by the Plaintiffs of the value of their trade secrets or confidential information.
There is no general issue of material fact regarding whether the Defendant Garrett disclosed identifiable trade secrets or confidential information because there is no evidence of Defendant Garret disclosing identifiable assets of the Plaintiffs: Let alone identifiable assets which are not generally known in the staffing industry and have some economic value to the Plaintiffs.
The 75 Miles Radius.
The issue is whether or not the Plaintiffs have a legitimate business interest in enforcing the 75 mile radius restrictive covenant against Defendant.
Under controlling case law and statutes the Plaintiff cannot enforce a noncompetition agreement’s geographic restriction as a restraint on generic competition in the market place, rather it must relate to a legitimate business interest. Sana!, 837 So. 2d 515 – 516. In Sanal, the Defendant was operating within a noncompetition agreement’s geographic restriction before the expiration of the agreement. Id. At Summary Judgment the Plaintiff in Sanal, could not establish that the Defendant provided services to its former clients, the Plaintiff could not establish that its current clients followed the Defendant to his new employer; the Plaintiff could not establish that it suffered any damages, and it was undisputed that the Defendant only worked with preexisting clients of his new employer. Id. at 514. The trial Court found that the Defendant had violated the agreement however the agreement was unenforceable because the Plaintiffs could not overcome the fact that it had no legitimate business interest. Id. at 515. The Florida First District Court of Appeals held that Summary Judgment was properly granted for the Defendant. Id. at 516.
In this case it is undisputed that the Defendant is operating inside the restrictive covenant, however Defendant only works for long established clients of her new employer, the employees being staffed by Defendant are outside of the 75 mile radius, Defendant’s job duties do not include solicitation of clients or potential employees on behalf of Superior within the 75 mile radius, Defendant has not placed temporary employees with any former clients of Plaintiff, there is no overlap between clients of Plaintiff and the new employer, the Plaintiffs and the new employer use different computer systems to maintain their staffing operations, Defendant did not receive any specific or specialized training while employed by the Plaintiffs, that she already obtained relevant training and experience prior to her employment with the Plaintiffs, and that the Plaintiffs have not been damaged by Defendant’ s employment with her new employer.
There is no genuine issue of material fact; the Plaintiffs do not have a legitimate business interest in enforcing the geographic restriction against the Defendant.
Testimony of Defendant.
The final issue is whether Defendant’s testimony that she breached the noncompetition agreement creates a geniune issue of material fact regarding whether the agreement is enforceable against Defendant.
First at the deposition Defendant’s attorney objected to the question and argues that the testimony is inadmissible because it calls for a legal conclusion. (Def. Dep. II pg. 20 L3 – 17). A question that calls for a legal conclusion is an expression·of opinion. Marine Investment Company v. Van Vorhis, 162 So. 2d 909, 910 (Fla. 1st DCA 1964). A lay witness cannot testify regarding an opinion if giving that opinion requires a special skill, knowledge, experience, or training. Fla. Stat. § 90.701.
Essentially when Plaintiffs’ Counsel asked, “Absent the alleged sexual harassment and retaliatory conduct, would you have been able to work for the new employer?” and “Just to make sure I was absolutely clear on that, this agreement would have prevented you from working for the new employer if it was effective?” Plaintiffs Counsel is asking Defendant to give a legal opinion as to whether or not the agreement is enforceable against her. See Marine Investment, 162 So. 2d 910 (“The challenged interrogatory also calls for an expression of opinion as to the legal effect of any such extraneous data as might appear from such books and records.”)
There is no evidence or underlying foundation establishing that Defendant is qualified to give that opinion. Therefore it is inadmissible under Fla. Stat. § 90.701 and will not be considered for summary judgment purposes. Holl, 191 So. 2d at 45.
Second even if the testimony is admissible and Defendant is ‘technically’ breaching the noncompetition agreement by working inside the geographic restriction she is still entitled to Summary Judgment because the Plaintiffs have not established a legitimate business interest that requires protection. Sanal, 837 So. 2d at 515 (“The trial court concluded that Dr. Sanal was ‘practicing medicine in violation of the terms of the non-compete agreement.’ However, it concluded, further, that the University had failed to establish that it had any ‘legitimate business interest….’ Accordingly, the trial court denied the University’s request for temporary injunctive relief, and granted Dr. Sanal’s motion for summary judgment.”).
The Defendant Garrett’s Motion for Summary Judgment is hereby GRANTED. The Court will reserve jurisdiction for attorney fees and costs and all other reasons consistent with this Order.
DONE AND ORDERED m Orlando, Orange County, Florida, on this 17th day of January, 2014.