COLORADO COURT OF APPEALS Court of Appeals No.: 06CA2011 ...
UNITED STATES COURT OF APPEALS U.S. COURT OF … · Frederick J. Martone, District Judge, Presiding...
Transcript of UNITED STATES COURT OF APPEALS U.S. COURT OF … · Frederick J. Martone, District Judge, Presiding...
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JDA SOFTWARE, INC., an Arizonacorporation,
Plaintiff- Appellant,
TOM BISSETT,
Defendant - Appellee.
No. 07-16091
FILEDJUN 10 2008
MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS
0SBORN MALEDON
JUN 1 6 2008
D.C. No. CV-07-00720-PHX-FJM
MEMORANDUM *
Appeal from the United States District Courtfor the District of Arizona
Frederick J. Martone, District Judge, Presiding
Arguedand Submitted December 5, 2007San Francisco, California
Before: B. FLETCHER, CANBY, and RAWLINSON, Circuit Judges.
Plaintiff JDA Software, Inc. ("JDA") appeals the district court’s denial of
JDA’s request for a preliminary injunction to enforce a non-competition and
confidentiality agreement between JDA and its former employee, defendant Tom
*This disposition is not appropriate for publication and is not precedentexcept as provided by 9th Cir. R. 36-3.
kwiktag ® 039 943 524
Bissett ("Bissett"). This court has jurisdiction on appeal of an interlocutory order
of the district court refusing to issue an injunction. 28 U.S.C. § 1292(a)(1). We
now affirm.
DISCUSSION
The district court’s denial of JDA’s request for a preliminary injunction is
subject only to "limited and deferential" review, Harris v. Bd. of Supervisors, 366
F.3d 754, 760 (gth Cir. 2004), and "may be reversed only if the court abused its
discretion," Earth Islandlnst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (gth Cir.
2006). A district court abuses its discretion if it "base[s] its decision on an
erroneous legal standard or clearly erroneous findings of fact." Id. at 1156. Once
the panel "determine[s] that the district court employed the appropriate legal
standards which govern the issuance of a preliminary injunction, and correctly
apprehended the law with respect to the underlying issues in litigation," its
"inquiry is at an end." Harris, 366 F.3d at 760 (internal quotation marks and
alterations omitted).
The district court held that JDA had not met the requirements for a
preliminary injunction, namely, to show either "(1) a likelihood of success on the
merits and the possibility of irreparable injury; or (2) serious questions going to the
merits and a balance of hardships strongly favoring the plaintiffs." Paramount
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Land Co. LP v. Cal. Pistachio Comm ’n, 491 F.3d 1003, 1008 (9th Cir. 2007).
A. Likelihood of Success on the Merits
We agree with the district court’s holding that under applicable Arizona law,
evidence of a literal breach of a non-competition agreement does not equate to the
likelihood of success on the merits. In Arizona, a post-employment restriction in
such an agreement "will not be enforced.., if... greater than necessary to protect
the employer’s legitimate interest." Valley Med. Specialists v. Farber, 982 P.2d
1277, 1283 (Ariz. 1999); see also Hilb, Rogal & Hamilton Co. of Ariz. v.
McKinney, 946 P.2d 464, 467 (Ariz. App. 1997)("Covenants not to compete are
disfavored and thus are strictly construed against employers."); Valley Med.
Specialists, 982 P.2d at 1286 (court will not "add terms" or "rewrite provisions" to
"make [a covenant not to compete] more reasonable" because doing so would
encourage employers to "create ominous covenants" with an "in terrorem effect on
departing employees"). The district court properly based its decision on JDA’s
inability to show that the violated provisions of the covenant served the "legitimate
purpose of post-employment restraints" that would justify their enforcement:
"prevent[ing] competitive use, for a time, of information or relationships which
pertain peculiarly to the employer and which the employee acquired in the course
of the employment." Id. at 1281 (quoting Harlan M. Blake, Employee Agreements
Not To Compete, 73 Harv. L. Rev. 625, 647 (1.960)).
JDA also contends that the district court erred by finding insufficient
evidence that Bissett was competing in a way legitimately protected by the
Agreement. We reject the contention. In his present position, Bissett does not deal
with any of the customers with whom he had relationships while working for JDA
or Manugistics. In light of conflicting evidence on the question of whether Bissett
obtained from JDA or Manugistics confidential information useful to him in his
new position, the District Court did not clearly err in determining that JDA had not
produced sufficient evidence to prevail on its factual claims for purposes of a
preliminary injunction.
B. Irreparable Harm
JDA next argues that the district court applied the second prong of the test
incorrectly by requiring it to show that irreparable harm "will" result without an
injunction. The district stated the correct legal standard, however, and its analysis
respected the principle that "[t]he required degree of irreparable harm increases as
the probability of success [on the merits] decreases." Dept. of Parks and
Recreation v. Bazaar delMundo, 448 F.3d 1118, 1123 (9th Cir. 2006) (citations
omitted). Therefore, its application of the irreparable harm standard was not
erroneous.
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FILEDJDA Software, Inc. v. Bissett, Case No. 07-16091Rawlinson, Circuit Judge, concurring:
I concur in the result.
JUN 10 2008
MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS
United States Court of Appeals for the Ninth CircuitOffice of the Clerk
95 Seventh Street; San Francisco, California 94103
General InformationJudgment and Post-JUdgment Proceedings
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(3) Statement of CounselA petition should contain an introduction stating that, in counsel’s judgment,one or more of the situations described in the "purpose" section above exist.The points to be raised must be stated clearly.
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2
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94119-3939.(Atm:. Opinions Clerk).
3Post Judgment Form - Rev. 3/2007
Form 10. Bill of Costs
United States Court of Appeals for the Ninth Circuit
BILL OF COSTS
Note: If you wish to file a bill of costs, it MUST be submitted on this form .and filed, withthe clerk, with proof of service, within 14 days of the date of entry of judgment, and
in accordance with Circuit Rule 39-1. A late bill of costs must be accompanied by a¯ motion showing good cause. Please refer to FRAP 39, 28 U.S,C. § 1920, and Circuit
Rule 39-1 when preparing your bill of costs.
v. CA No.
The Clerk is requested to tax the following costs against:
Cost
Taxable
under FRAP
39, 28 U.S.C.
§ 1920, Circuit
Rule 39-1
No.
tLEQUESTED
Each Column
Must Bc Completed
Pages
per
Cost
per
TOTAL
cosT
ALLOWED
To Be Completed by the Clerk
No. Pages
per
Cost TOTAL
COST
Excerpt of
Record
Appellant’s
Brief
Appellee’s.
Brief
Appellant’s
Reply Brief
Page **
TOTAL
Does. Page
TOTAL
Fol~m 10. Bill of Costs : Continued
Other: Any other requests must be accompanied by a ~tatement explaining why the item(s) should¯
be taxed pursuant to Circuit Rule 39-1. Additional items without such supporting
statements will not be considered.
Attorneys fees cannot be requested on this form.
If more than 7 excerpts or 20 briefs are request~xl, a statement explaining the excess
number.must be submitted. ¯ ’
** Costs per page may not exceed. 10 or actual cost,, whichever is less. Circuit Rule 39-1.
I, , swear.under penalty of perjury that the services for which costs are taxed were
actually and necessarily performed, and that the requested costs were actually expended as listed.
Signature:
Date:.
Name of Counsel (printed or typed):Attorney for:
Date: Costs are taxed in the amount of $
Clerk of Court
By. , Deputy Clerk
Thomas L. HudsonOSBORN MALEDON, PA2929 North Central AvenuePhoenix, AZ 85012
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