United States District Court, M.D. Florida, Orlando Division
DALTON JR. UNITED STATES DISTRICT JUDGE.
moves for an emergency injunction pending appeal. (Doc. 45
(“Appeal Motion”).) Defendant
opposes. (Doc. 48.) On review, the Appeal Motion is due to be
removal from state court, Plaintiff ActivEngage
(“ActivEngage”) moved for a
preliminary injunction. (See Docs. 2, 9.)
ActivEngage alleged its former CEO and co-founder Defendant
Todd L. Smith (“Smith”) violated
the Florida Uniform Trade Secrets Act
(“FUTSA”), Defend Trade Secrets
Act (“DTSA”), and his fiduciary
duty by misappropriating ActivEngage's trade secret, a
product named ActivProspect. (See Doc. 9.) The Court
denied ActivEngage's requested relief, finding it had not
shown a substantial likelihood of success or irreparable
injury. (Doc. 35 (“PI Order”).)
ActivEngage appealed. (Doc. 42.)
ActivEngage seeks a preliminary injunction pending appeal of
the PI Order. (Doc. 45.) ActivEngage argues it will succeed on
appeal because the Court should have held an evidentiary
hearing on its preliminary injunction motion
(“PI Motion”) and did not make a
finding on the merits of its breach of fiduciary duty claim.
(Id. at 6-12.) In the Appeal Motion, ActivEngage
repeats its previous arguments-it will be irreparably harmed
without injunctive relief and neither Smith nor the public
will be harmed by the relief. (Id. at 13-16; see
also Doc. 9.) Smith responds the Court did not have to
hold an evidentiary hearing nor make a finding on
ActivEngage's breach of fiduciary duty claim and
ActivEngage hasn't shown irreparable injury. (Doc . 4 8
.) Briefing complete, the matter is ripe. (See Docs.
district court may issue a preliminary injunction pending
appeal when the movant shows: (1) a substantial likelihood of
success on the merits of the appeal; (2) substantial risk of
irreparable injury unless the injunction issues; (3) no
substantial harm to other interested persons; and (4) no harm
to the public interest. See Touchston v. McDermott,
234 F.3d 1130, 1132 (11th Cir. 20 00). A preliminary
injunction pending appeal is an “extraordinary
remedy.” Id. at 1133.
Substantial Likelihood of Success on Appeal
claims it will prevail on appeal because the Court should
have held an evidentiary hearing on its PI Motion and failed
to make a finding on its breach of fiduciary duty claim.
(Doc. 45, p. 6.) Smith says both were unnecessary. (Doc. 48,
pp. 1- 2.) Smith is right.
says the Court should have held an evidentiary hearing
because the issues were disputed, it did not get an
opportunity to depose Smith, and it could not present
rebuttal evidence. (Doc. 45, pp. 6-9.) Smith counters an
evidentiary hearing was neither requested nor necessary.
(Doc. 48, pp. 2-8.)
ActivEngage did not request an evidentiary hearing,
argues the Court was required to hold one because of the
complexity of the case. (Doc. 45, pp. 6-9.) The cases
ActivEngage cites are inapposite, addressing the need to
notify the non-moving party of a preliminary injunction
motion under Federal Rule of Civil Procedure 65. (See
Id. at 6-8 (citing cases).) The purpose of Federal Rule
of Civil Procedure 65 is to give the non-moving party a fair
opportunity to prepare and oppose a preliminary injunction.
McDonald's Corp. v. Robertson, 147 F.3d 1301,
1311 (11th Cir. 1998); see also All Care Nursing Serv. v.
Bethesda Mem'l Hosp., 887 F.2d 1535, 1538 (11th Cir.
1989). “So long a s these goals are met, Rule 65 does
not require an evidentiary hearing.”
Robertson, 147 F.3d at 1311; see also
FTC v. Vylah Tec LLC, 727 Fed.Appx. 998, 1001 (11th Cir.
2018) (denying the district court erred in failing to hold an
evidentiary hearing where “both parties had the
opportunity to present arguments and educate the court
regarding the complex issues involved in the
as the non-moving party, does not contend he needed an
evidentiary hearing to oppose the PI Motion. (See
Doc. 48.) ActivEngage is attempting to use the shield meant
to protect the non-moving party to a preliminary injunction
as a sword to get an evidentiary hearing after ...