Liberty National Life Insurance Company v. Gann

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LIBERTY NATIONAL LIFE )
INSURANCE COMPANY, )
)
Plaintiff, )
)
vs. ) CIV. A. NO. 24-384-KD-MU
)
JERRY TANNER GANN, )
)
Defendant. )
REPORT AND RECOMMENDATION
This action is before the Court on the Partial Motion to Dismiss filed by Defendant
Jerry Tanner Gann (Doc. 4), Plaintiff’s response (Doc. 8), and Defendant’s reply (Doc.
11). The motion to dismiss has been referred to the undersigned for pretrial disposition
pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen. LR 72. For the reasons set forth
below, the undersigned Magistrate Judge RECOMMENDS that Defendant’s motion to
dismiss be DENIED in part and GRANTED in part.
I. BACKGROUND
Plaintiff, Liberty National Life Insurance Company (“LNL”), states in its complaint
that it is an insurance company providing life and supplemental health insurance through
home and workplace sales throughout the United States. (Doc. 1, ¶ 9). From April of 2022
until May of 2024, Defendant Gann was independently contracted as an Independent
Agency Director with LNL. (Doc. 1, ¶ 10). LNL paid Gann commissions on business
written by Gann. (Id.).
Gann and LNL entered into an Independent Agency Director’s Contract (the
“Agreement”) in April 2022. (Doc. 1, ¶ 11). The Agreement’s “Non-Competition” section
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states that, during the term of the Agreement and for two years after, Gann will not,
directly or indirectly:
(b) sell, or attempt to sell, any form of accident and health or life insurance,
or annuities, issued by any other company to or covering any of the
Company’s [LNL’s] policyholders; (c) induce, or attempt to induce, any of
the Company’s policyholders to cancel, lapse or fail to renew their policies
with the Company; [or] (d) solicit accident and health or life insurance, or
annuity business from any of Company’s worksite customers, including but
not limited to employers . . . with whom the Independent Agency Director
[Gann] had material contact on behalf of the Company during the last two
(2) years of the Independent Agency Director’s relationship with the
Company…
(Doc. 8-1, PageID.73). The Agreement also provides that, in the event Gann engages in
any of the prohibited actions, LNL shall be entitled to declaratory and injunctive relief.
(Id.). Further, LNL shall be entitled to monetary relief representing 200% of the annualized
premium of any policy Gann replaces, rewrites, or otherwise causes not to renew in
violation of his contractual obligations. (Id.). In any successful action by LNL to enforce
the non-solicitation restrictions referenced above, Gann shall be liable for legal fees and
costs incurred by LNL in relation to such action. (Id.). The Agreement states that it “shall
be construed both as to validity and performance and enforced in accordance with” Texas
law. (Doc. 8-1, PageID.74).
The Complaint states that Gann resigned from his contract with LNL in May 2024.
(Doc. 1, ¶ 14). Since that time, LNL asserts that Gann has solicited numerous
policyholders and employer customers of LNL, in violation of his obligations under the
Agreement. (Id.). The Complaint further alleges that, on multiple occasions since his
resignation from LNL, Gann has approached LNL employer or worksite customers and
presented a “Globe Life” business card (indicating an affiliation with Globe Life, Inc., LNL’s
parent), which he used while he was contracted with LNL. (Doc. 1, ¶ 16). On those
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occasions, Gann was not contracted or affiliated with Globe Life, Inc. or LNL. (Id.). He
then allegedly proceeded to solicit and replace LNL’s benefits coverage with the employer
or worksite customer with products from a different, competing carrier. (Id.).
LNL has brought three claims against Gann. First, LNL seeks preliminary and
permanent injunctive relief to restrain and enjoin Gann from violating the post-
employment non-solicitation restrictions in the Agreement (Count I). (Doc. 1, ¶ 18-24).
Second, LNL has brought a claim for breach of contract based on Gann’s alleged actions
in violation of the Agreement’s non-solicitation restrictions (Count II). (Doc. 1, ¶ 25-31).
Third, LNL has brought a claim for violation of the Lanham Act based on Gann’s alleged
use of a “Globe Life” business card to falsely represent himself as affiliated with LNL or
its parent company and LNL’s loss of sales aided by Gann’s misrepresentations (Count
III). (Doc. 1, ¶ 32-39).1
LNL has brought this action under the Court’s diversity jurisdiction pursuant to 28
U.S.C. § 1332. (Doc. 1, ¶ 4). LNL represents that it is a citizen of Nebraska and Texas,
and Gann is a citizen of Alabama, making this a dispute between citizens of different
states. (Id.). LNL claims that Gann has already replaced LNL business representing more
than $100,000 in annual premiums and continues to solicit and seek business from more
LNL customers. (Doc. 1, ¶ 5). Under the Agreement, in the event LNL succeeds in this
action, Gann shall be liable for the payment of liquidated damages and LNL’s attorney’s
fees and costs. (Id.). Together, LNL asserts the amount in controversy well exceeds
$75,000. (Id.). LNL also asserts jurisdiction is proper pursuant to 28 U.S.C. § 1331
because its Lanham Act claim arises under the laws of the United States, in that Gann
1 LNL’s Lahnam Act claim is not challenged in the Partial Motion to Dismiss.
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has engaged in false advertising in violation of the Lanham Act, 15 U.S.C. § 1125. (Doc.
1, ¶ 7).
II. STANDARD OF REVIEW
Defendant submits that Plaintiff’s claims against him for injunctive relief (Count I)
and breach of contract (Count II) are due to be dismissed, pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, because Plaintiff has failed to state any claims
against him upon which relief can be granted. “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)) “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.... [This standard] asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. at 678. A complaint is also
“subject to dismissal for failure to state a claim ‘when its allegations, on their face, show
that an affirmative defense bars recovery on the claim,’” Douglas v. Yates, 535 F.3d 1316,
1321 (11th Cir. 2008) (quoting Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003)),
or “when, on the basis of a dispositive issue of law, no construction of the factual
allegations will support the cause of action,” Marshall Cnty. Bd. of Educ. v. Marshall Cnty.
Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
In determining whether a claim is stated, the court “must accept the factual
allegations in a complaint as true and construe them in the light most favorable to the
plaintiff.” Almanza v. United Airlines, Inc., 851 F.3d 1060, 1066 (11th Cir. 2017).
“However, conclusory allegations, unwarranted factual deductions or legal conclusions
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masquerading as facts will not prevent dismissal.” Davila v. Delta Airlines, Inc., 326 F.3d
1183, 1185 (11th Cir. 2003). While the court must usually limit its review and
consideration on motion to dismiss to the complaint itself and exhibits attached thereto, a
“court may consider an extrinsic document if it is (1) central to the plaintiff’s claim, and (2)
its authenticity is not challenged.” SFM Holdings, Ltd. v. Banc of Am. Secs., LLC, 600
F.3d 1334, 1337 (11th Cir. 2010).2
III. CONCLUSIONS OF LAW
A. Breach of Contract
1. Choice of Law
A federal court sitting in diversity applies the choice of law rules for the state in
which it sits. Dowdy v. Suzuki Motor Corp., 567 F. App'x 890, 892 (11th Cir. 2014) (“Since
the district court here was sitting in diversity in Alabama, we must apply Alabama's choice-
of-law rules.”). “Alabama follows the traditional view that a contract is governed as to its
nature, obligation, and validity by the law of the place where it was made, unless the
parties intend the law of some other place to govern, or unless it is to be wholly performed
in some other place.” Ex parte Owen, 437 So. 2d 476, 481 (Ala. 1983). Alabama “has
long recognized the right of parties to an agreement to choose a particular state's laws to
govern an agreement.” Gina Barfoot Sellers v. Venture Express, Inc. (Ex parte Venture
Express, Inc.), 339 So. 3d 242, 243 (Ala. 2021) (J. Shaw, concur) (quoting Cherry,
2 The Court has considered the Independent Agency Director’s Contract submitted with
LNL’s response. (See Doc. 8-1). This version of the Agreement was signed by both
parties, is central to the dispute, and neither party has disputed its authenticity. As this
version of the Agreement was signed by both parties, Gann’s argument that it is not
enforceable because it was not signed by LNL is without merit. (See Doc. 4, PageID.24-
25).
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Bekaert & Holland v. Brown, 582 So. 2d 502, 507 (Ala. 1991)). Notably however, “[w]hile
parties normally are allowed to choose another state's laws to govern an agreement,
where application of that other state's laws would be contrary to Alabama policy, the
parties' choice of law will not be given effect and Alabama law will govern the agreement.”
Id. (quoting Cherry at 507). Stated differently, where the parties’ choice of law would be
contrary to the fundamental public policies of the forum state, the parties’ choice of law
cannot be given effect. Cherry at 506-07 (citing Blalock v. Perfect Subscription Co., 458
F. Supp. 123, 127 (S.D. Ala. 1978)).
“Alabama's policy against covenants not to compete is a fundamental public
policy.” Cherry at 507; see also Pitney Bowes, Inc. v. Berney Office Sols., 823 So. 2d
659, 664 (Ala. 2001) (quoting Cherry); see also Core Lab'ys LP v. AmSpec, No. CV 16-
0526-CG-N, 2018 WL 6200758, at *9 (S.D. Ala. May 10, 2018); see also Benchmark Med.
Holdings, Inc. v. Rehab Sols., LLC, 307 F. Supp. 2d 1249, 1260 (M.D. Ala. 2004).3
Furthermore, as it pertains to choice of law in the context of non-compete agreements,
“Alabama's fundamental policy is against covenants not to compete and courts that have
applied Alabama law in contravention of the parties' choice of law have done so on the
basis that the law of the chosen state is materially less restrictive of covenants not to
compete.” Core Lab'ys. at *9 (emphasis in original).
3 Notably, Alabama’s statutory scheme with regard to restrictive covenants expressly
holds that fundamental public polices of the State are implicated. See Ala. Code § 8-1-
197 (“It is hereby declared that this article expresses fundamental public policies of the
State of Alabama. Therefore, this article shall govern and shall be applied instead of any
foreign laws that might otherwise be applicable in those instances when the application
of those foreign laws would violate a fundamental public policy expressed in this article.”).
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Under Texas law, “[a]n agreement not to compete is in restraint of trade and
therefore unenforceable on grounds of public policy unless it is reasonable.” DeSantis v.
Wackenhut Corp., 793 S.W.2d 670, 681 (Tex. 1990) (footnote omitted). More specifically,
Texas Business and Commerce Code § 15.50 governs the enforceability of covenants
not to compete and provides:
[A] covenant not to compete is enforceable if it is ancillary to or part of an
otherwise enforceable agreement at the time the agreement is made to the
extent that it contains limitations as to time, geographical area, and scope
of activity to be restrained that are reasonable and do not impose a greater
restraint than is necessary to protect the goodwill or other business interest
of the promisee.
Tex. Bus. & Com. Code § 15.50. Gann has not argued that the Agreement is
unenforceable under Texas law, and LNL states that “it seems overwhelming likely the
[Agreement] is enforceable under Texas law.” (Doc. 8, PageID.59, n. 5). Therefore,
assuming the non-solicitation restrictions at issue are valid under Texas law, this Court
must determine whether Alabama law is more restrictive than Texas law such that the
non-solicitation restrictions would be unenforceable under Alabama law. “Thus, where
Alabama law would be applicable, but for the parties' selection of another state's law, and
where Alabama has a greater material interest, notably a covenant that is to be enforced
in Alabama and against an Alabama resident, Alabama courts will not apply another
state's law, if the covenant not to compete is void under Alabama law.” Core Lab'ys. at *9
(quoting Benchmark at 1260).
2. Enforceability of Non-Solicitation Restrictions under Alabama Law
Alabama’s law governing covenants not to compete was revised in 2015, with the
Restrictive Covenant Act (Ala. Code § 8-1-1) being replaced by § 8-1-190 et seq. with an
effective date of January 1, 2016. Section 8-1-190 states:
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(a) Every contract by which anyone is restrained from exercising a lawful
profession, trade, or business of any kind otherwise than is provided by
this section is to that extent void.
(b) Except as otherwise prohibited by law, the following contracts are
allowed to preserve a protectable interest:
(1) A contract between two or more persons or businesses or a person
and business limiting their ability to hire or employ the agent, servant,
or employees of a party to the contract where the agent, servant, or
employee holds a position uniquely essential to the management,
organization, or service of the business.
(2) An agreement between two or more persons or businesses or a
person and a business to limit commercial dealings to each other.
(3) One who sells the good will of a business may agree with the buyer
to refrain from carrying on or engaging in a similar business and from
soliciting customers of such business within a specified geographic
area so long as the buyer, or any entity deriving title to the good will
from that business, carries on a like business therein, subject to
reasonable time and place restraints. Restraints of one year or less
are presumed to be reasonable.
(4) An agent, servant, or employee of a commercial entity may agree
with such entity to refrain from carrying on or engaging in a similar
business within a specified geographic area so long as the
commercial entity carries on a like business therein, subject to
reasonable restraints of time and place. Restraints of two years or
less are presumed to be reasonable.
(5) An agent, servant, or employee of a commercial entity may agree
with such entity to refrain from soliciting current customers, so long
as the commercial entity carries on a like business, subject to
reasonable time restraints. Restraints of 18 months or for as long as
post-separation consideration is paid for such agreement, whichever
is greater, are presumed to be reasonable.
(6) Upon or in anticipation of a dissolution of a commercial entity,
partners, owners, or members, or any combination thereof, may
agree that none of them will carry on a similar commercial activity in
the geographic area where the commercial activity has been
transacted.
Ala. Code § 8-1-190.
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a. Is there a Broad Exception for Partial Restraints?
The parties dispute whether the non-solicitation restrictions in the Agreement are
enforceable under Alabama law and take various positions regarding the interpretation of
§ 8-1-190 based on the fact that the restrictions are only a partial restraint and based on
whether Gann was or was not an independent contractor. However, as the undersigned
sees it, the controlling issue here is whether the non-solicitation restrictions fit within § 8-
1-190(b)(5), i.e. one of the enumerated categories of permissible restraints, which allows
for non-solicitation restrictions under certain circumstances. In order to reach this
analysis, the undersigned will first address LNL’s assertion that because the non-
solicitation restrictions are only a partial restraint, they are enforceable regardless of
whether Gann was an independent contractor. In short, this is position is incorrect and
not reflective of the current state of the law.
LNL argues extensively that because the non-solicitation restrictions placed on
Gann in the Agreement are only partial, not total, as they only prevent him from soliciting
LNL’s customers and employees, it is irrelevant whether Gann was an independent
contractor. (Doc. 8, PageID.55-59). Essentially, LNL’s argument is that there is a broad
partial restraint exception under Alabama law, and, therefore, the partial restraint at issue
here, or indeed any partial restraint, is not required to fit within one of the categories of
contracts listed as permissible exceptions in § 8-1-190(b). In support of this position, LNL
discusses caselaw differentiating between total restraints and partial restraints and
argues that the caselaw demonstrates that all partial restraints are permissible under
Alabama law. (Id.) But LNL relies on caselaw based upon § 8-1-1 (e.g., Akzo Nobel
Coatings, Inc. v. Color & Equipment, LLC, 451 Fed.Appx. 823 (11th Cir. 2011), Hughes
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Assocs., Inc. v. Printed Cir. Corp., 631 F. Supp. 851 (N.D. Ala. 1986), Ex parte Howell
Eng’g & Surveying, Inc., 981 So. 2d 413 (Ala. 2006))4 and not the revised statute, § 8-1-
190, which became effective in 2016.
The problem with LNL’s argument that all partial restraints are permissible is the
corollary that then the six types of contracts enumerated in § 8-1-190(b) are not an
exhaustive list of permissible restraints. This is not how the new statute was intended to
operate. The Northern District of Alabama addressed a similar argument in C&H Mgmt.
Grp., LLC v. DeLuccio, in which a plaintiff seeking to enforce a “Confidentiality, Non-
Competition and Non-Disclosure Agreement” also cited Ex parte Howell, arguing that the
exceptions codified in § 8-1-190(b) “don’t matter because the Alabama Supreme Court
has held that the Act only prohibits total restraints on trade, not ‘partial’ ones.” C & H
Mgmt. Grp., LLC v. DeLuccio, No. 4:19-CV-1066-CLM, 2022 WL 1156954, at *3 (N.D.
Ala. Apr. 19, 2022). In considering the plaintiff’s argument, the court found “the 2006
Howell decision does not add a broad partial restraint exception to the Act.” Id. The court
noted that the “the Alabama Legislature re-wrote the Act in 2015” and “[w]hen it did, the
Legislature added two new exceptions to bless some 'no hire' and 'exclusive dealings'
agreements.” Id. Quoting the exceptions set forth in § 8-1-190(b)(1) and (b)(2), the court
noted that “[t]hese additions (particularly the second) codified the Howell ruling, as noted
in the comment to the section. And [plaintiff] cites no state cases decided after the 2015
re-write that says there are more exceptions than the six written by the legislature in
2015.” Id. at *4.
4 One case LNL relies upon that was decided after 2015, Medline Indus., Inc. v. Stryker
Sustainability Sols., Inc., 541 F. Supp. 3d 1305 (N.D. Ala. 2021), applied § 8-1-1 because
the contract at issue there was entered into before the new law became effective.
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Dismissing the plaintiff’s argument that the court should consider an exception for
partial restraints on independent contractors not enumerated in the statute (the same
argument LNL makes here), the court explained as follows:
Simply put, the Legislature knew what the Alabama Supreme Court had
written when it re-wrote the statute and considered those holdings. If the
legislature had wanted to exempt all partial restraints from the Act's reach,
it could have said so. But it didn't. It enumerated six exceptions, some of
which come from the state court cases discussing partial restraints. This
court must apply the statute as the Legislature wrote it. So the NDA is void
under § 8-1-190 if it doesn't fit one of the six statutory exceptions.
C & H Mgmt. Grp., at *4. The undersigned agrees with the analysis and conclusion
reached by our sister court, and, as a result, the fact that the non-solicitation restrictions
at issue are a partial restraint does not mean that they do not also have to fit within one
of the § 8-1-190(b) exceptions. Therefore, Gann’s employment status with LNL and
whether he was or was not an independent contractor is relevant in determining whether
the non-solicitation restrictions fit within the (b)(5) exception.
b. Does Gann fall within § 8-1-190(b)(5)?
Gann argues that the non-solicitation restrictions in the Agreement are void
because he is an independent contractor under the terms of the Agreement, and
independent contractors are not “agents, servants, or employees” as required by § 8-1-
190(b)(5). (Doc. 11, PageID.83-85). The undersigned recognizes that under the plain
language of § 8-1-1(b), a non-solicitation restriction could not be applicable to an
independent contractor, as that statute said “one who is employed as an agent, servant,
or employee may agree with his employer to refrain…from soliciting old customers of
such employer….” Ala. Code § 8-1-1(b) (emphasis added). However, this same
conclusion is not readily apparent under the language of the revised statute.
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The language regarding non-solicitation restrictions, which is now found in § 8-1-
190(b)(5), was revised so that it currently states: “An agent, servant, or employee of a
commercial entity may agree with such entity to refrain from soliciting current
customers….” Ala. Code § 8-1-190(b)(5) (emphasis added). Because the statute now
provides for restrictive covenants with a “commercial entity” rather than only with one’s
“employer,” it appears the statutory exception in § 8-1-190(b)(5) may allow for an
independent contractor to fall within this section as a matter of plain English, and the
difference in language must be given effect. See, e.g., Hadi Store, LLC v. City of
Tuscaloosa, 279 So.3d 1233, 1236 (Ala. Civ. App. 2019) (“When the legislature amends
a particular statute and omits certain language of the former statute in its amended
version, the legislature specifically intended that the omitted portion is no longer the law.
Every word excluded from a statute must be presumed to have been excluded for a
reason.”) (internal citation omitted)).
Accordingly, the question presented is whether Gann was an “agent” of LNL such
that he fits within the (b)(5) exception. LNL states in its response that if Gann is
determined to be an “agent” of LNL, then the non-solicitation restrictions are undeniably
permissible under § 8-1-190(b)(5). (Doc. 8, PageID.62-63). LNL then goes on to argue,
however, that there is an issue of fact as to the existence of agency that cannot be
decided at this stage. (Id.). Gann argues that based on the language in the Agreement,
there is no question that he was an independent contractor of LNL and not an agent, and,
therefore, the non-solicitation restrictions are unenforceable as to him. (Doc. 11,
PageID.85-87).
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The Agreement here is titled an “Independent Agency Director’s Contract” and the
first section of the Agreement, titled “Relationship of the Parties” states:
It is expressly agreed that the relationship intended by this Contract
between the Independent Agency Director [Gann] and the Company [LNL]
shall be that of an independent contractor only, and that nothing contained
herein shall be construed to create the relationship of employer and
employee.
(Doc. 8-1, PageID.70). Under the section “Authority, Duties and Responsibilities” the
Agreement states:
A. The Independent Agency Director's authority is limited to soliciting and
procuring, personally or through agents assigned to him, applications for
insurance underwritten by [LNL], submitting the same to [LNL] for
acceptance or rejection, remitting with the applications the premiums paid
thereon or annuity deposit(s), as applicable, and delivering policies and
other documents to the appropriate parties in accordance with [LNL]
practices.
***
C. The Independent Agency Director shall have no authority to bind [LNL]
in any manner and shall make no express or implied representation to the
contrary to any person. The Independent Agency Director is not authorized
to incur any indebtedness on behalf of [LNL] or in its name, or to execute
any contract on [LNL’s] behalf.
(Id.).
“But even if a contract says that a party is an independent contractor, whether an
agency relationship ‘exists is determined from the facts, not by how the parties choose to
characterize their relationship.’ ” C & H Mgmt. Grp., at *4 (quoting Tyson Foods, Inc. v.
Stevens, 783 So. 2d 804, 808 (Ala. 2000)). The nature of the relationship depends on
who has the “right to control the means by which the work is done.” Keebler v. Glenwood
Woodyard, Inc., 628 So.2d 566, 568 (Ala. 1993); see also Lifestar Response of Alabama,
Inc. v. Admiral Ins. Co., 17 So. 3d 200, 213 (Ala. 2009) (citing Alabama Power Co. v.
Beam, 472 So. 2d 619 (Ala. 1985)) (“The test for determining whether a person is an
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agent or employee of another, rather than an independent contractor, is whether that
other person has reserved the right of control over the means and method by which the
person's work will be performed, whether or not the right of control is actually exercised.”).
“Typically, the existence of an agency relationship is a question of fact for a jury to
decide.” Tyson Foods, Inc. v. Stevens, 783 So. 2d 804, 808 (Ala. 2000). As a result, the
undersigned cannot recommend a finding, based only on the pleadings and the
Agreement as evidence, that Gann was not an agent of LNL such that the non-solicitation
restrictions are unenforceable. Accordingly, the undersigned recommends that Gann’s
Motion to Dismiss LNL’s claim for beach of contract (Count II) be DENIED.
B. Injunctive Relief
Count I of LNL’s complaint attempts to bring a claim for injunctive relief to restrain
and enjoin Gann from violating the non-solicitation restrictions in the Agreement. (Doc. 1,
¶ 18-24). As discussed above, Count II of LNL’s complaint is for breach of the non-
solicitation restrictions. Gann is correct that an independent claim for injunctive relief fails
as a matter of law because “injunctions are not causes of action but, rather, are remedies
tied to some other cause of action.” Kornegay v. Beretta USA Corp., 614 F. Supp. 3d
1029, 1037 (N.D. Ala. 2022); see also Sirmon v. Wyndham Vacation Resorts, Inc., No.
7:10-cv2717, 2012 WL 13020303, at *5 (N.D. Ala. Apr. 17, 2012) (“Injunctive relief is just
that…a form of relief, not a basis on which to grant it.”). So, any claim for injunctive relief
here is merely a remedy dependent upon the claim for breach of contract. See Klay v.
United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004) (“[A]ny motion or suit for
a traditional injunction must be predicated upon a cause of action…regarding which a
plaintiff must show a likelihood or actuality of success on the merits. There is no such
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thing as a suit for a traditional injunction in the abstract.”). Accordingly, the undersigned
recommends that Gann’s Motion to Dismiss LNL’s claim for injunctive relief (Count I) be
GRANTED.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendant’s Partial
Motion to Dismiss (Doc. 4) be DENIED as to LNL’s claim for breach of contract (Count II)
and GRANTED as to LNL’s claim for injunctive relief (Count I).
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything in it
must, within fourteen (14) days of the date of service of this document, file specific written
objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);
S.D. Ala. Gen. LR 72(c)(1) & (2). The parties should note that under Eleventh Circuit Rule
3-1, “[a] party failing to object to a magistrate judge’s findings or recommendations
contained in a report and recommendation in accordance with the provisions of 28 U.S.C.
§ 636(b)(1) waives the right to challenge on appeal the district court’s order based on
unobjected-to factual and legal conclusions if the party was informed of the time period
for objecting and the consequences on appeal for failing to object. In the absence of a
proper objection, however, the court may review on appeal for plain error if necessary in
the interests of justice.” 11th Cir. R. 3-1. To be specific, an objection must identify the
specific finding or recommendation to which objection is made, state the basis for the
objection, and specify the place in the Magistrate Judge’s report and recommendation
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where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the Magistrate Judge is not specific.
DONE and ORDERED this the 14th day of February, 2025.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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