United States District Court, D. Oregon
BRINTON BUSINESS VENTURES, INC., dba Evergreen Vending, dba Vending Equipment Center, dba Northwest Coffee Services, dba Avanti Markets Northwest, Plaintiff,
RICHARD SEARLE, Defendant.
L. Campbell Nicholas H. Pyle Attorneys for Plaintiff
C. Trauman Jeremy G. Tolchin Attorneys for Defendant
OPINION & ORDER
A. HERNANDEZ United States District Judge
Brinton Business Ventures, doing business as Evergreen
Vending, Vending Equipment Center, Northwest Coffee Services,
and Avanti Markets Northwest (hereinafter,
“Brinton”), seeks to enjoin its former branch
manager, Richard Searle, from competing against Brinton or
soliciting Brinton's customers in violation of the terms
of his non-competition agreement with Brinton. The parties
conducted limited discovery in order to fully brief this
motion. The Court held oral argument on March 15, 2017.
Brinton's motion for a preliminary injunction is granted,
subject to this Court's modifications as detailed below.
contracts with employers to install, service, maintain, and
operate “micro markets” at workplaces around
Oregon and Washington. Compl. ¶ 7, ECF 1. Micro markets
are “unattended retail stores located directly on the
premises of large employers, offering employees the
opportunity to purchase food, beverages, and other items
without leaving their workplace.” Id.
Brinton's Portland, Oregon branch covers a territory
stretching from Longview, Washington, south to Eugene,
Oregon. Id. at ¶ 8.
Searle accepted an offer to be Brinton's Portland, Oregon
branch manager on January 8, 2012. Id. at ¶ 9.
Upon accepting Brinton's employment offer, Mr. Searle
said he would resign from his then-current employer on
January 27, 2012, and would begin working for Brinton on
January 30, 2012. Id.
January 13, 2012, Mr. Searle visited Brinton's Portland
branch office. Id. at ¶ 10. As discussed in
greater detail below, the parties disagree about whether Mr.
Searle received a copy of a non-competition agreement on that
point between January 13, 2012 and January 23, 2012, Mr.
Searle contacted Brinton and asked if he could start working
for Brinton sooner than planned. Id. at ¶ 11.
Brinton agreed to Mr. Searle's request and permitted him
to begin working on January 23, 2012. Id.
January 23, 2012, Mr. Searle arrived at Brinton's office
and signed a NonCompetition Agreement (hereinafter,
“Agreement”) that contained non-competition and
non-solicitation provisions. Compl. Ex. A
(“Agreement”), ECF 1-1. The non-competition
provision prohibits Mr. Searle from competing with Brinton in
a specified geographic area for two years after his
employment ends with Brinton. Id. The
non-solicitation provision prohibits Mr. Searle from
soliciting, for two years after his employment ends with
Brinton, any people who were Brinton's customers or
prospective customers when Mr. Searle worked at Brinton.
March 17, 2016, Mr. Searle sent an email to Jim Brinton,
president of the company, and Bruce Brinton, vice-president
of the company, stating that he wished to resign. Compl.
¶ 18. While still employed by Brinton, on March 22,
2016, Mr. Searle filed a registration with the Oregon
Secretary of State to establish a new business named R
Squared Markets & Vending Corporation. Id. at
¶ 19. The incorporators listed in the filing with the
Secretary of State were Mr. Searle and Richard Corwin, a
general manager at Brinton's Portland branch who worked
under Mr. Searle's supervision. Id. On April 1,
2016, Mr. Searle's employment with Brinton ended.
Id. at ¶ 21. Mr. Corwin continued to work for
Brinton until June 15, 2016. Id. at ¶ 22.
September of 2016, Brinton's largest customer in Oregon,
Lam Research, cancelled its contract with Brinton.
Id. at ¶ 24. Brinton believes that Mr. Searle
“solicited the business of Lam Research and induced Lam
Research to abandon its relationship with Brinton and to sign
a contract with Mr. Searle's new business.”
Id. at ¶ 25. Mr. Searle and his business are
now operating one or more micro markets on Lam Research's
Tualatin campus. Id. Brinton also believes that Mr.
Searle has induced other customers, such as Nippon Dynowave,
to terminate their relationship with Brinton and enter into
business with Mr. Searle. Id. at ¶ 26. Lam
Research and Nippon Dynowave were Brinton customers that Mr.
Searle was responsible for during his time as Brinton branch
manager. Id. at ¶¶ 24, 26.
seeking a preliminary injunction “must establish that
he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
The plaintiff “must establish that irreparable harm is
likely, not just possible[.]” Alliance for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th
Cir. 2011) (emphasis in original). The court may apply a
sliding scale test, under which “the elements of the
preliminary injunction test are balanced, so that a stronger
showing of one element may offset a weaker showing of
the party requesting a preliminary injunction must carry its
burden of persuasion by a “clear showing” of the
four required elements set forth above. Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (per curiam);
Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012)
(a “preliminary injunction is an extraordinary and
drastic remedy, one that should not be granted unless the
movant, by a clear showing, carries the burden of
persuasion”) (quoting Mazurek, 520 U.S. at
972) (emphasis in original).
to the urgency of obtaining a preliminary injunction at a
point when there has been limited factual development, the
rules of evidence do not apply strictly to preliminary
injunction proceedings.” Herb Reed Enterprises, LLC
v. Florida Entm't Mgmt., Inc., 736 F.3d 1239, 1250
n.5 (9th Cir. 2013). Therefore, in deciding a motion for a
preliminary injunction, the Court has broad discretion to
consider all arguments and evidence, including hearsay and
other inadmissible evidence, declarations from interested
parties, and arguments raised for the first time in a reply.
Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir.
2009); Lane v. Dep't of Interior, 523 F.3d 1128,
1140 (9th Cir. 2008).
Court grants the motion for a preliminary injunction because
Brinton establishes a likelihood of success on the merits and
a likelihood of irreparable harm. The balance of the equities
also tips somewhat in Brinton's favor. The public
interest factor is neutral.
Likelihood of Success on the Merits
succeed on its motion for a preliminary injunction, Brinton
must demonstrate a likelihood of success on the merits of its
claims. Brinton alleges that Mr. Searle breached the
parties' non-competition and non-solicitation agreements.
enforceable under Oregon law, a covenant not to compete must
meet both the requirements of Oregon Revised Statute §
(O.R.S.) 653.295 and Oregon's common law governing
restraints on trade. Nike, Inc. v. McCarthy, 379
F.3d 576, 580-87 (9th Cir. 2004). Mr. Searle contends that
the Agreement in this case is unenforceable because he voided
the Agreement, as allowable under O.R.S. 653.295, and the
Agreement is not reasonably limited.
non-competition provision of the Agreement is voidable.
parties sharply dispute whether the non-competition provision
of the Agreement is voidable under Oregon law. It is
undisputed that Brinton did not provide Mr. Searle with a
copy of the Agreement two weeks before the first day of Mr.
Searle's employment, as required by O.R.S.
653.295(1)(a)(A). However, Brinton contends that it provided
the Agreement to Mr. Searle more than two weeks before the
original agreed-upon employment start date. Thus, Brinton
argues that it should ...