1:24-cv-00384•Liberty National Life Insurance Company v. Gann
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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 Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 1 of 16 PageID# <pageID>
2 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 Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 2 of 16 PageID# <pageID>
3 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. Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 3 of 16 PageID# <pageID>
4 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 Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 4 of 16 PageID# <pageID>
5 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). Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 5 of 16 PageID# <pageID>
6 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.”). Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 6 of 16 PageID# <pageID>
7 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: Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 7 of 16 PageID# <pageID>
8 (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. Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 8 of 16 PageID# <pageID>
9 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 Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 9 of 16 PageID# <pageID>
10 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. Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 10 of 16 PageID# <pageID>
11 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. Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 11 of 16 PageID# <pageID>
12 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). Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 12 of 16 PageID# <pageID>
13 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 Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 13 of 16 PageID# <pageID>
14 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 Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 14 of 16 PageID# <pageID>
15 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 Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 15 of 16 PageID# <pageID>
16 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 Case 1:24-cv-00384-KD-MU Doc# 12 Filed 02/14/25 Page 16 of 16 PageID# <pageID>
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