Jak Productions, Inc.; Group Consultants, Inc. v. Robert Bayer

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1330
JAK PRODUCTIONS, INC.; GROUP CONSULTANTS, INC.,
Plaintiffs - Appellants,
v.
ROBERT BAYER,
Defendant - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
District Judge. (2:15-cv-00361)
Submitted: August 31, 2015 Decided: September 22, 2015
Before DUNCAN and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Richard M. Wallace, LITTLER MENDELSON, P.C., Morgantown, West
Virginia; David J. Carr, Paul C. Sweeney, ICE MILLER LLP,
Indianapolis, Indiana, for Appellants. Michael B. Hissam,
Isaac R. Forman, BAILEY & GLASSER LLP, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
JAK Productions, Inc., and Group Consultants, Inc.,
(collectively, JAK) appeal from the district court’s order
denying their request for a preliminary injunction in their
civil action against Robert Bayer under West Virginia law and
the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(g) (2012).
The district court denied JAK’s request for the issuance of a
preliminary injunction with respect to a restrictive covenant at
section 8.a. of an employment contract between Bayer and JAK.*
We affirm.
“[W]here a preliminary injunction is under an interlocutory
examination, determining whether the district court abused its
discretion ‘is the extent of our appellate inquiry.’”
Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor &
City Council of Baltimore, 721 F.3d 264, 290 (4th Cir. 2013)
(en banc) (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 934
(1975)). As long as the district court “applied a correct
preliminary injunction standard, made no clearly erroneous
findings of material fact, and demonstrated a firm grasp of the
* This section restricts Bayer—who oversaw and managed
certain of JAK’s telemarketing call centers when he was employed
by JAK—from “directly or indirectly, engag[ing] in any
fund-raising or telemarketing business within a thirty (30)-mile
radius” of any call center of JAK’s for a period of 18 months
after the termination of his employment.

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legal principles pertinent to the underlying dispute,” no abuse
of discretion has occurred. Centro Tepeyac v. Montgomery Cnty.,
722 F.3d 184, 192 (4th Cir. 2013) (en banc). Factual findings
underlying the district court’s denial of a preliminary
injunction are reviewed for clear error; legal conclusions are
reviewed de novo. Dewhurst v. Century Aluminum Co., 649 F.3d
287, 290 (4th Cir. 2011).
A plaintiff seeking preliminary injunctive relief must
demonstrate: “[1] that he is likely to succeed on the merits,
[2] that he is likely to suffer irreparable harm in the absence
of preliminary relief, [3] that the balance of equities tips in
his favor, and [4] that an injunction is in the public
interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008). “[A]ll four requirements must be satisfied” to
obtain the “extraordinary remedy” of a preliminary injunction.
Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 345-46
(4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010).
With respect to the first prong, “the party seeking the
preliminary injunction must demonstrate by ‘a clear showing’
that, among other things, it is likely to succeed on the merits
at trial.” Id. at 345 (quoting Winter, 555 U.S. at 22).
We conclude after review of the record and the parties’
briefs that the district court did not abuse its discretion in
denying JAK’s request for a preliminary injunction on the basis

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that JAK failed to demonstrate a likelihood of success on the
merits. The district court determined that section 8.a. of the
employment contract was facially unreasonable under West
Virginia law and thus not enforceable, see Huntington Eye
Assocs., Inc. v. LoCascio, 553 S.E.2d 773, 780 (W. Va. 2001);
Reddy v. Cmty. Health Found. of Man, 298 S.E.2d 906, 910-11,
915, 918-19 (W. Va. 1982), and JAK’s arguments on appeal do not
establish reversible error in this determination. Contrary to
JAK’s assertion, the district court addressed its argument that
section 8.a. pertained to recruitment activities and rejected it
based on the section’s plain language. We reject as unexplained
JAK’s contention that this ruling was error because Bayer’s
testimony and documentary evidence received at the hearing on
the preliminary injunction request support the contract
interpretation it advances. We also reject as unsupported by
relevant law JAK’s contention that section 8.a. should be
construed as limiting recruitment activities.
We therefore affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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