Opinion
Case No. 8:18-bk-09178-RCT Adv. Pro. No. 8:19-ap-00006-RCT
04-11-2019
IN RE: RONALD COLLIS II, Debtor. Vology, Inc., Plaintiff, v. Ronald Collis II, Defendant
Chapter 7 ORDER ON PLAINTIFF'S MOTION IN LIMINE AND MOTION FOR TEMPORARY INJUNCTION
Before the court is Plaintiff Vology, Inc.'s Motion for Temporary Injunction (the "Motion"). Vology asks the court to enter a preliminary injunction against its former employee, Defendant Ronald Collis II, to enforce the restrictive covenants contained in a series of agreements. Mr. Collis denies that he signed any of the agreements Vology relies upon.
Vology was formerly known as Network Liquidators, Inc.
Doc. 3.
At this early stage of the litigation, the court determines that Vology failed to show that Mr. Collis signed any of the subject agreements. Accordingly, the court denies Vology's Motion on that ground. However, for the reasons set forth below, the court will issue a preliminary injunction enjoining Mr. Collis from soliciting certain Vology customers until the earlier of (i) the conclusion of this adversary proceeding; or (ii) ten (10) months from the date of entry of this Order. The court also belatedly grants Vology's Motion In Limine and denies, without prejudice, Vology's ore tenus motion to conform the pleadings to the evidence.
On the eve of trial, Vology filed its Motion in Limine to Preclude Testimony of Other Evidence as to Breach of Employment Contract (Doc. 40). The Motion in Limine sought to exclude evidence of Vology's alleged "purported breach of a dependent covenant of compensation . . . or an alleged breach of the 'implied covenant of good faith and fair dealing'" in its restrictive covenant contracts with Collis, as a defense to injunctive relief. In the parties' Joint Stipulation of Facts and Procedure, Mr. Collis agreed not to assert any unpaid wage defense (Doc. 37 ¶ 5). In reserving ruling, the court expressed its intent to hear evidence of the terms of employment before deciding whether to exclude the evidence. The undisputed evidence shows that while at Vology Mr. Collis was an "at will" employee and that he worked purely on a commission basis, perhaps with some marketing expense reimbursements. Accordingly, Vology's Motion in Limine is well taken. For purposes of deciding Vology's Motion for Temporary Injunction, the court will not consider any evidence that Vology breached any employment obligations to Mr. Collis by taking away accounts. See Kupscznk v. Blasters, Inc., 647 So. 2d. 888 (Fla. 2nd DCA 1994). Notwithstanding this ruling, a defense of "unclean hands" may remain a viable defense, so long as the alleged injury is directly related to the controversy between the parties. See Electrostim Medical Servs., Inc. v. Lindsey, No. 8:11-cv-2467-T-33TBM, 2012 WL 1405707, at *11 (M.D. Fla. Mar. 13, 2012), R. & R. adopted by 2012 WL 1405681 (M.D. Fla. April 23, 2012).
PROCEDURAL BACKGROUND
Mr. Collis filed a chapter 7 bankruptcy case on October 25, 2018. At that time, Mr. Collis was already involved in litigation with Vology in Florida state court ("State Court Case"). Vology removed the State Court Case to this court on January 10, 2019 by filing its then pending (i) Second Amended Complaint for Injunctive Relief and Damages; (ii) Motion for Temporary Injunction; and (iii) Amended Motion for Temporary Injunction.
See Doc. 2 (Plaintiff's Second Amended Complaint for Injunctive Relief and Damages, Circuit Court of the Sixth Judicial Circuit, Pinellas County, Florida, Case No. 18-006094-CI).
Doc. 2.
Doc. 3.
Doc. 4.
Vology filed a Third Amended Complaint for Injunctive Relief and Damages on January 28, 2019 (the "Complaint"). Three of the Complaint's eight counts are implicated in Vology's request for preliminary injunctive relief: Count II - Enforcement of Non-Compete Agreement, Count III - Tortious Interference With Business Relationships, and Count V - Florida Uniform Trade Secrets Act. Mr. Collis has answered the Complaint and asserted counterclaims and a third-party claim.
Doc. 15.
The others are Count I - Civil Theft; Count IV - Tortious Interference With Business Relationships; Count VI - Exception to Discharge of Debt Pursuant to 11 U.S.C. § 523(a)(2)(A); Count VII - Exception to Discharge of Debt Pursuant to 11 U.S.C. § 523(a)(6); and Count VIII - Exception to Discharge of Debt Pursuant to 11 U.S.C. § 727(a)(4).
Doc. 20.
FACTUAL BACKGROUND
Vology is in the business of selling IT products and offers some limited managed and professional services. Its target market is small and medium sized companies. Vology hired Mr. Collis as sales representative in September 2006 and fired him on August 9, 2018. Mr. Collis was a high volume sales producer for Vology.
Doc. 46 (Trial Tr. 142:14-17).
Prior to Vology, Mr. Collis worked as a sales representative in the roofing industry.
During Mr. Collis's tenure, Vology managed its customer information via a customer relationship management system. Initially, Vology used an internally developed and patented system called "SMART." Eventually the company migrated its customer information to a third-party system known as "Salesforce." Both SMART and Salesforce work off of customer information input by Vology's sales representatives. Customer information includes, among other things, company and contact names, addresses, phone numbers and invoice and purchase histories.
Salesforce, while not always kept current, was password protected and generally understood to contain confidential customer information not to be shared with Vology's competitors. But, when Vology hired Mr. Collis in September 2006, neither he nor any other Vology employee was asked to sign a restrictive covenant or confidentiality agreement.
In April 2008, for the first time, Vology asked its current sales representatives to sign a 24-month "Restrictive Covenant" that would preclude them from engaging in the sale and distribution of "used voice and/or data transmission equipment." At the same time, Vology asked its sales representatives to sign an "Intellectual Property Protection Agreement" which provided for confidentiality of specified business information and included a 24-month non-solicitation agreement. These two agreements will be referred to collectively as the "2008 Agreements."
Pl. Ex. 1.
Pl. Ex. 2.
According to Daniel Harte, Vology's corporate representative, signed copies of the 2008 Agreements were in Mr. Collis's HR file. However, no one ever witnessed Mr. Collis sign either of the 2008 Agreements, both of which bear the signature "John Doe." Mr. Collis denies signing the 2008 Agreements.
In April 2013, Vology asked its sales representatives to sign an "Addendum to Restrictive Covenant Agreement" which reduced the restricted time from 24 to 12 months, but expanded the scope of the restriction to include the engineering or servicing of new or used IT equipment. This agreement will be referred to as the "2013 Addendum."
Pl. Ex. 3.
A signed copy of the 2013 Addendum was in Mr. Collis' HR file. This document shows a signature of "R Col" and a date of June 7, 2013. However, again, no one witnessed Mr. Collis sign the 2013 Addendum and Mr. Collis denies that the signature is his.
Finally, in January 2017, Vology asked its sales representatives to sign a "Confidentiality, Non-Competition and Non-Solicitation Agreement." This agreement will be referred to as the "2017 Agreement."
Pl. Ex. 4.
In the 2017 Agreement, Vology employees are asked to acknowledge that they are at-will employees who can be terminated for any reason, with or without cause, and without notice. The seven pages of small print also contain a confidentiality agreement, a non-competition agreement, a non-solicitation of customers, referral sources, and service providers agreement and a non-solicitation of employees and independent contractors agreement. Of particular note is the non-competition provision which reverts the restriction back to 24 months while expanding its scope. In sum, the 2017 Agreement purports to prohibit a former employee, who could be fired for no reason the minute after he or she signed the document, from any direct or indirect activity, in any capacity "where such capacity would be substantially similar to the capacity for which the Employee worked at the Company during the Employee's last year of employment at the Company, at any business which is competitive with the Company . . . ."
Id.
A copy of the 2017 Agreement was found in Mr. Collis's HR file, but does not contain a cursive signature in the "Employee" signature block. Instead, Mr. Collis's name is printed very lightly with a date of January 18, 2017. Mr. Collis denies that he ever signed the 2017 Agreement. His wife testified that he brought the unsigned 2017 Agreement home in 2017, where it sat in their kitchen, unsigned, until the preliminary injunction hearing. She brought it to the hearing.
Def. Ex. 10.
Vology fired Mr. Collis the morning of August 9, 2018. Vology handed him a copy of the 2017 Agreement (with his printed name in the "Employee" signature block) as they ushered him out the door. Other than the termination documents he was given, Mr. Collis did not take anything tangible from Vology upon his departure. He left with only what was in his brain and in his personal cell phone.
It is undisputed that Vology did not provide Mr. Collis with a company cell phone or compensate Mr. Collis for the use of his personal cell phone.
Several weeks later, Mr. Collis was hired by Greyson Technologies, Inc. ("Greyson") as a sales representative. Greyson is also in the IT business. Greyson's customer focus is more on professional services, as opposed to hardware sales like Vology. Nevertheless, Greyson and Vology are, for all intents and purposes, competitors, at least within the meaning of the 2017 Agreement. Greyson, however, does not require its sales representatives to sign restrictive covenants.
During the initial phase of his employment with Greyson, Mr. Collis was contacted by, or did contact, some of his former customers from Vology. However, at this preliminary stage of the litigation, there is no evidence that Mr. Collis contacted any former customers, except perhaps family members, after October 1, 2018, or that he sold any hardware to any Vology customer. Indeed, in response to this litigation, Mr. Collis and Greyson implemented a voluntary mechanism designed to prevent Mr. Collis from contacting former customers of Vology.
Pl. Exs. 8-10, 13-16 and 18-20.
Peter Ufret, a Senior Architect at Concentrix, a former Vology customer, testified that while at Greyson, Mr. Collis sold Concentrix professional services. Doc. 46 (Tr. 257:4-13). Mr. Collis acknowledged as much. Pl. Ex. 8 ¶ 1.
At the hearing, both parties presented expert declarations and deposition testimony. Neither expert testified in person. Mr. Collis's expert, Laurie Hoeltzel, opines that Mr. Collis did not sign the 2008 Agreements, the 2013 Addendum, or the 2017 Agreement. She testified during her deposition that the base documents she used to render her opinion contained Mr. Collis's actual signatures.
Pl. Exs. 24-28.
With respect to the 2017 Agreement, Mr. Collis's expert analyzed the written signature in the Vology signature block as opposed to Mr. Collis's printed name in the "Employee" signature block.
Pl. Ex. 28 (Tr. 85-86).
Vology's expert, Thomas Vastrick, opines that it is probable that Mr. Collis signed the 2013 Addendum. He did not evaluate the 2017 Agreement. Testimony was presented that at least some of the base documents that Mr. Vastrick used in his analysis may not have been signed by Mr. Collis. Obviously, at this stage of the litigation, the court has not had the opportunity to evaluate the credibility of either expert.
Pl. Ex. 24 ¶ 12. Mr. Vastrick testified at his deposition that although he examined the 2008 Agreements, he was unable to draw any conclusions because "the names appear to be written in the name of John Doe and I did not have appropriate comparison material to make a comparison . . . ." Pl. Ex. 26 (Tr. 6-7).
DISCUSSION
A. Legal Standard
To obtain temporary injunctive relief, a party must prove: "(1) the likelihood of irreparable harm, (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that a temporary injunction will serve the public interest." Moreover, "[n]o temporary injunction shall be entered unless the person seeking enforcement of a restrictive covenant gives a proper bond," and this requirement may not be waived.
Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1261 (Fla. 5th DCA 2009).
1. Likelihood of Irreparable Harm
Fla. Stat. § 542.335(1)(j) provides that "[t]he violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant." To rebut the presumption, Collis must establish the "absence of an injury." This presumption extends to the enforcement of restrictive covenants in federal and state court proceedings.
Smart Pharmacy, Inc. v. Viccari, 213 So.3d 986, 990 (Fla. 1st DCA 2016).
Transunion Risk and Alt. Data Sols., Inc. v. MacLachlan, 625 Fed. App'x 403, 406 (11th Cir. 2015).
2. Unavailability of an Adequate Remedy at Law
In cases involving a violation of a covenant not to compete, "the normal remedy is to grant an injunction ... because of the inherently difficult, although not impossible, task of determining just what damage actually is caused by the employee's breach of the agreement."
Miller Mech., Inc. v. Ruth, 300 So.2d 11, 12 (Fla. 1974) (citation omitted).
3. Substantial Likelihood of Success on the Merits
a. Enforceability and Enforcement of Restrictive Covenants
"Evidence that an enforceable covenant not to compete was breached will support a trial court's finding of the likelihood of success on the merits." The enforceability and enforcement of contracts that restrict or prohibit competition during or after the term of employment are governed by Fla. Stat. § 542.335. Section 542.335 uses the term "restrictive covenants" and includes all contractual restrictions such as noncompetition/nonsolicitation agreements and confidentiality agreements. Section 542.335(1) permits enforcement of contracts that restrict or prohibit competition "so long as such contracts are reasonable in time, area, and line of business." However, the statute clearly prohibits a court from enforcing a restrictive covenant "unless it is set forth in a writing signed by the person against whom enforcement is sought."
Walsh v. PAW Trucking, Inc., 942 So.2d 446, 448 (Fla. 4th DCA 2006).
Henao v. Prof'l Shoe Repair, Inc., 929 So.2d 723, 726 (Fla. 5th DCA 2006).
The statute also requires that the person seeking enforcement "prove the existence of one or more legitimate business interests justifying the restrictive covenant." A legitimate business interest includes, among others, trade secrets, as defined in Fla. Stat. § 688.002(4), confidential information, substantial relationships with specific prospective or existing customers, and customer goodwill.
The party seeking enforcement of a non-compete agreement must establish a prima facie case that the restrictions are reasonably necessary to protect its legitimate business interests. The opposing party then has the burden of proving that the contractual restraint "is overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest. If the restraint is overbroad or unreasonable, the court "shall modify the restraint and grant only the relief reasonably necessary to protect such [legitimate business] interest or interests." Section 542.335(1)(h) states that the court "shall construe a restrictive covenant in favor of providing a reasonable protection to all legitimate business interests established by the person seeking enforcement[,]" and "shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract."
Id.
Id.
b. Tortious Interference With Business Relationships
"A preliminary injunction has been recognized as a viable form of relief for a tortious interference claim." Under Florida law, a tortious interference with business relationships claim requires four elements: "(1) the existence of a business relationship [under which the plaintiff has legal rights]; (2) knowledge of the relationship on the part of the defendants; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the tortious interference with the relationship." An unjustifiable interference with a business relationship can support injunctive relief even where there is no restrictive covenant.
SMS Audio, LLC v. Belson, No. 9:16-cv-81308-MIDDLEBROOKS, 2016 WL 8739764 at *4 (S.D. Fla. Aug. 16, 2016).
SMS Audio, LLC v. Belson, 2016 WL 8739764, at *4.
See Fortline, Inc. v. Moody, No. 12-CV-81271-RYSKAMP/HOPKINS, 2013 WL 12101142 at *3 (S.D. Fla. Jan. 7, 2013); Unistar Corp. v. Child, 415 So.2d 733, 734 (Fla. 3rd DCA 1982); Ins. Field Servs., Inc. v. White & White Inspection and Audit Serv., Inc., 384 So. 2d 303, 307 (Fla. 5th DCA 1980).
c. Misappropriation of Trade Secrets under FUTSA
The Florida Uniform Trade Secrets Act ("FUTSA") defines a trade secret as information that "derive[s] economic value from not being readily ascertainable by others and [is] the subject of reasonable efforts to protect its secrecy." A "list of customers" is a trade secret "so long as the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner....." Misappropriation of trade secrets is defined as the acquisition of the trade secret by improper means. Actual or threatened misappropriation of trade secrets may be enjoined.
Fla. Stat. § 688.002(4); Fortline, Inc., 2013 WL 12101142, at *3.
Fortline, Inc., 2013 WL 12101142, at *3 (quoting Fla. Stat. § 812.081); see Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Hagerty, 808 F.Supp. 1555, 1558 (S.D. Fla. 1992) ("Regardless of who compiled the customer list, however, it is clearly protected under [Florida law].").
CONCLUSIONS
Vology must satisfy the threshold requirement that "any restrictive covenant be set forth in a writing signed by the person against whom enforcement is sought ...." In other words, Vology must establish that Collis signed an agreement containing the restrictive covenant that Vology seeks to enforce. At this preliminary stage, Vology has failed to demonstrate that Mr. Collis signed any of the agreements. Accordingly, the court cannot find that Vology has established a substantial likelihood of success on the merits of its claim for injunctive relief against Mr. Collis under Fla. Stat. § 542.
First, no one witnessed Mr. Collis sign the 2008 Agreements, the 2013 Addendum, or the 2017 Agreement. Second, Vology was unable to produce the original signatures for any of the agreements. Third, the evidence on this record strongly indicates that Mr. Collis did not sign any of the restrictive covenant agreements. The testimony of Mr. Collis, Jan Collis, and Ryan Bowen all credibly support the claim that Mr. Collis avoided signing any of the non-compete contracts while at Vology.
Indeed, Vology now does have its restrictive covenants witnessed. "I guess we learned from our mistakes," explained Vology's corporate representative Daniel Harte. Doc. 46 (Trial Tr. 109:1-9).
The only testimony that Mr. Collis signed the 2008 Agreements was given by Vology witness Thomas Canalungo. Mr. Canalungo testified that in 2017 he heard Mr. Collis say in reference to the 2017 Agreement "I'll probably just sign it John Doe like I usually do." Mr. Canalungo's testimony was not credible. And indeed, only the 2008 Agreements were signed "John Doe." None of the other alleged agreements have any reference to "John Doe." Mr. Canalungo and Mr. Collis were not friends and Vology's effort to buttress Mr. Canalungo's testimony with Exhibit 30 fell flat.
Doc. 46 (Trial Tr. 193:1-16).
Pl. Ex. 30 is a hand-written note whereby Mr. Canalungo purchased 30,000 shares of Vology stock from Mr. Collis. The transaction took place in 2012, approximately five years before the alleged conversation between the two men.
Vology offered no testimony to establish that Mr. Collis signed the 2013 Addendum. And, contrary to Mr. Canalungo's testimony, it is not signed "John Doe," as usual.
Finally, the only evidence Vology offered to prove that Mr. Collis signed the 2017 Agreement was Mr. Harte's sheepish testimony that he recognized Mr. Collis's printing on the 2017 Agreement. Although Mr. Harte was a credible witness when he testified about Vology's operations and procedures under his supervision, when pushed to identify the tiny printing on the 2017 Agreement, he was obviously uncomfortable, particularly on cross-examination. This portion of his testimony was not credible. He did not witness or know of any witness to the "signature." And Vology was unable to produce any of the "note" samples on which Mr. Harte purportedly based his testimony.
Doc. 46 (Trial Tr. 85:1-17).
Doc. 46 (Trial Tr. 151-154).
That leads to consideration of the expert declarations and depositions.
On a cold record, the experts should just cancel each other out. But at this point in the battle of the experts, the scales tip in favor of Ms. Hoeltzel. First, there was no challenge to the authenticity of any of the base documents she used in her comparison analysis. Second, her analysis that Mr. Collis's many signatures have one thing in common seems to bear out. She concluded that he always attaches the "C" and "o" in his last name. Although Ms. Hoeltzel did not review the printed name on the 2017 Agreement (she reviewed another employee's signature), Mr. Vastrick did not even bother to review the 2017 Agreement. Indeed, the fact that Ms. Hoeltzel was misdirected to examine only the cursive signature on the 2017 Agreement, if anything, suggests that Mr. Collis did not even know what Vology was relying on to establish his "signature" on that agreement.
Pl. Ex. 28 (Hoeltzel depo. Tr. 102:2-18).
The court agrees with Vology that a printed name can constitute a legal signature. But here, the printing on the 2017 Agreement bears no resemblance to any other document introduced into evidence with Mr. Collis's signature or hand printing. More importantly, there are no specimens in this record where Mr. Collis printed his name in lieu of a cursive signature of some type.
See Gendzier v. Bielecki, 97 So.2d 604, 607 (Fla. 1957).
Vology argues that it only makes sense that Mr. Collis signed the restrictive covenants so he could remain employed. But, in truth Mr. Collis had little to gain and much to lose by signing the documents. He received no guarantee of employment, no additional compensation, and no additional benefits. This is especially true with respect to the 2017 Agreement which is nearly insulting in its breadth and scope for no additional consideration beyond staying at a job that could be terminated at any moment for any reason.
Indeed, in its moving papers, Vology wisely does not even attempt to enforce the 2017 Agreement. It is not mentioned in Vology's Third Amended Complaint nor is it mentioned in Vology's Amended Motion for Temporary Injunction. Only at the preliminary injunction hearing did Vology suggest, for the first time, that it would ask the court to permit it to amend its moving papers to conform to the evidence and attempt to enforce the 2017 Agreement. Although the 2017 Agreement was admitted into evidence because it was given to Mr. Collis when he was terminated, no credible evidence has yet been presented that Mr. Collis ever signed it. For this reason, the ore tenus motion to conform the pleadings to the evidence will be denied for purposes of preliminary injunctive relief, but the denial is otherwise without prejudice.
Doc. 46 (Tr. 116-117).
Vology also argues that everyone had to sign the restrictive covenants and there is no reason that Vology would have allowed Mr. Collis not to sign. But Vology's argument is simply speculation. Indeed, Greg Nordone's speculation in this regard is equally, if not more, persuasive. Mr. Nordone, Greyson's CEO, testified that if a highly productive sales representative refuses to sign a restrictive covenant, it is not unreasonable that the company might look the other way and simply "check the box." That way they do not lose a top sales representative and the income that he or she might earn for the company.
Vology relies on Mr. Cunalungo's speculation that it would be ludicrous for someone to forge "John Doe."
So, at this stage of the litigation, the court is unwilling to enforce the restrictive covenants in the 2008 Agreements, the 2013 Addendum or the 2017 Agreement against Mr. Collis.
The court also is not yet persuaded that Mr. Collis received any special training or trade secrets from Vology during his employment beyond actual customer and target customer lists. Mr. Collis was an experienced salesman before joining Vology. In fact, he ran sales programs and mentored other sales representatives while at Vology. Any technical training regarding the equipment Vology sold came, for all intents and purposes, in the form of canned training programs formulated and conducted by the third-party manufacturers of that equipment.
However, Vology has established, at least preliminarily, a legitimate business interest in the business relationships with customers and prospective customers that were cultivated, targeted and developed while Mr. Collis was employed at Vology. These customer relationships warrant protection even in the absence of an enforceable covenant not to compete. Even customers that Mr. Collis may have known prior to joining Vology became IT customers of Vology (whether for hardware or services) during his employment with the company.
See Dotolo v. Schouten, 426 So.2d 1013, 1014 (Fla. 2nd DCA 1983).
Vology also has taken, and continues to take, all necessary steps to protect its customer information and to preserve those important relationships. Vology had a reasonable expectation that Mr. Collis would not disclose or interfere with these business relationships after leaving Vology's employment. Mr. Harte argues that there is a "moral obligation" on the part of Mr. Collis not to contact Vology's customers. Without addressing that point, the court concludes that, at this stage of the litigation, there is a legal obligation not to interfere with those relationships and prospective relationships, absent legal justification.
Vology also has demonstrated that Mr. Collis, in fact, interfered with those business relationships, at least through October 1, 2018. And, Mr. Collis impliedly concedes that these contacts were improper based on his voluntary efforts to avoid such contacts once he was sued by Vology.
Accordingly, the court will formalize the voluntary mechanism currently employed by Mr. Collis and Greyson to preserve the status quo until the earlier of 10 months from the date of this preliminary injunction to the entry of a final judgment in this adversary proceeding. The customers that Mr. Collis will be enjoined from soliciting are those listed in the initial offer of Plaintiff's Exhibit 22, Bates Stamp identification: "Vology 010739-010742". Because that list has been filed under seal it will be not attached to this Order. The reference list includes both actual customers and prospective customers that were developed and included in Vology's Salesforce system.
Prospective business relationships are also protected from tortious interference. See Jay v. Mobley, 783 So.2d 297, 299 (Fla. 4th DCA 2001). --------
Although Vology ultimately may have to prove more to establish damages or any permanent injunctive relief, at this stage of the litigation Vology has established a likelihood of success on its tortious interference claim. It has established (i) a protectible interest in preserving these customer relationships; (ii) actual interference with at least some of those relationships in the aftermath of Mr. Collis termination; and (iii) at least one potential lost sale. Damage to business relationships, however, are difficult to quantify, thus, the need for injunctive relief. Finally, because Mr. Collis is already avoiding these customers on a voluntary basis, preliminary injunctive relief should produce little to no irreparable harm to Mr. Collis. Accordingly, it is
ORDERED:
1. Defendant Ronald Collis is preliminarily enjoined from contacting the customers and prospective customers identified on Plaintiff's Exhibit 22 as initially presented to the court, Bates Stamp identification: "Vology 010739-010742."
2. The preliminary injunction shall extend for the earlier of ten (10) months from the date of entry of this Order or until the conclusion of this adversary proceeding.
3. The preliminary injunction is conditioned upon the posting of a bond by Vology in the amount of $2,500 within 14 days from the date of entry of this Order.
4. Plaintiff's Motion In Limine (Doc. 40) is GRANTED.
5. Plaintiff's ore tenus Motion to Conform the Pleadings to the Evidence, is DENIED for purposes of preliminary injunctive relief, but, otherwise, without prejudice.
ORDERED.
Dated: April 11, 2019
/s/_________
Roberta A. Colton
United States Bankruptcy Judge Attorney Scott T. Silverman is directed to serve a copy of this order on interested parties who do not receive service by CM/ECF and file a proof of service within three days of entry of the order.