USCA11 Case: 22-11870 Document: 35-1 Date Filed: 05/03/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11870
____________________
GLE SCRAP METAL, INC.,
a foreign profit corporation authorized to do
business in Florida,
Plaintiff-Appellant,
versus
TIAN TAN,
TY INTERNATIONAL LLC,
a Florida Limited Liability Company,
Defendants-Appellees.
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2 Opinion of the Court 22-11870
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:22-cv-00573-PGB-LHP
____________________
Before JORDAN and NEWSOM, Circuit Judges, and GRIMBERG,∗ Dis-
trict Judge.
PER CURIAM:
This appeal requires us to determine whether the district
court abused its discretion when it denied GLE Scrap Metal’s mo-
tion for a preliminary injunction. The injunction would have en-
joined GLE’s former employee, Tian Tan, and his new company,
TY International, from operating their “Doctor Scrap” app.
GLE—a scrap-metal recycling company—filed its motion simulta-
neously with a complaint alleging that Tan had misappropriated
GLE’s trade secrets and breached his confidentiality, non-solicita-
tion, and non-competition agreements by marketing his app—
which GLE claims is in direct competition to its business.
The district court initially granted a TRO based on the alle-
gations in the complaint, but following an evidentiary hearing, it
dissolved the TRO and denied GLE’s motion for a preliminary in-
junction after concluding that GLE failed to demonstrate either
∗ Honorable Steven D. Grimberg, United States District Judge for the North-
ern District of Georgia, sitting by designation.
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22-11870 Opinion of the Court 3
irreparable injury or a substantial likelihood of success on the mer-
its. For the reasons explained below, we affirm.
I
A
GLE is a recycling company specializing in purchasing, pro-
cessing, and trading large quantities of scrap metal. It essentially
operates as a “middleman” in that it connects buyers and sellers of
various types of scrap metal. Using valuation formulas that it as-
serts are proprietary, GLE can quickly price its sellers’ metal and
identify buyers in a way that it feels provides a competitive ad-
vantage.
Tian Tan began working for GLE in June 2017 as its Director
of International Marketing, at which time he executed confidenti-
ality, non-solicitation, and non-competition agreements. Some-
time in May 2018, Tan was promoted to Vice President of Interna-
tional Business, which required him to sign a similar agreement.
A large part of Tan’s role while at GLE was to receive photos
of scrap metal from suppliers and forward them to GLE customers
to collect bids. Tan quickly realized that this process created a “bot-
tleneck” that prevented him from facilitating quick trades. And so
he set out to formulate a tech-based solution: the Doctor Scrap app.
According to GLE, the “app[] would mimic GLE’s operations” by
quickly pairing buyers and sellers: It would “examine photographs
of the scrap materials being offered for sale to determine the com-
position,” estimate the price, and accept bids from potential cus-
tomers. Enlisting the services of his tech-savvy wife, who did the
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4 Opinion of the Court 22-11870
actual coding, Tan got to work on creating the app. Sometime dur-
ing the summer of 2021, Tan presented a beta version of the app
to Danny Zack—GLE’s CEO—but Zack seemed unenthusiastic.
Tan interpreted Zack’s lack of enthusiasm as a rejection.
According to Tan, after GLE declined to get involved in the
app’s development, he resigned 1 and continued to develop it using
his own resources and contacts. In his resignation email, Tan said
that he intended to “chase [his] IT dream to see if [he could] use
technology to make some positive change to [the] industry” by fo-
cusing on developing the app “as [he] described to [GLE].” And he
did, in fact, create an app, but not one—at least according to the
district court—that yet performs all of the functions that GLE ini-
tially described. In its current state, the district court found, the
Doctor Scrap app only collects data—it does not actually facilitate
trades.
Soon after Tan and GLE parted ways, Tan began to promote
his newly developed Doctor Scrap app—first in an article published
in an online trade publication, then in emails targeted to at least
one of GLE’s customers, and finally in a blast email to a group that
GLE claims is its customer list but that Tan insists is a member list
from a trade association. In this “[s]olicitation” email blast (as GLE
describes it) Tan represented his team as being “experts from GLE”
and other companies, even though it was sent months after his
1Tan announced his resignation in September 2021, but stayed on to assist
with the transition until November 2021. Therefore, the restrictive covenants
described in Tan’s employment contracts with GLE will soon expire.
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22-11870 Opinion of the Court 5
departure from GLE. In this same email, Tan stated that the Doc-
tor Scrap app can be used to “[f ]ind solid buyers in each item across
the world.”
B
After GLE learned about Tan’s promotional efforts, GLE
filed its complaint and emergency motion for a preliminary injunc-
tion in the Middle District of Florida. In the motion, GLE alleged
that Tan misappropriated its trade secrets and breached his confi-
dentiality, noncompete, and non-solicitation agreements by using
images taken from GLE’s (or its customer’s) facilities, by employ-
ing its proprietary pricing formula to build the Doctor Scrap app,
and by marketing the app to its customers. Based on the allegations
in the complaint, the district court immediately issued a TRO en-
joining Tan from promoting the app and scheduled an evidentiary
hearing to determine whether to convert the TRO into a prelimi-
nary injunction.
Following the evidentiary hearing, the district court denied
GLE’s motion for a preliminary injunction, concluding that it had
failed to establish either irreparable injury or a substantial likeli-
hood of success on the merits.
As to irreparable injury, the district court first concluded that
any harm that might occur could be remedied ex post through an
award of monetary damages. The court also found that no harm
was imminent because GLE hadn’t lost any business to the Doctor
Scrap app and because the app wasn’t capable of actually facilitat-
ing trades.
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6 Opinion of the Court 22-11870
The district court separately concluded that GLE was un-
likely to succeed on the merits of its claims. As for its trade-secrets
claim, the court held that GLE had failed to show that Tan actually
used GLE’s trade secrets in developing and promoting Doctor
Scrap. In particular, the district court explained, GLE had failed to
show that Tan used its proprietary valuation formula to calculate
prices or that he used confidential photos from its facility rather
than publicly available ones. Moreover, the district court empha-
sized, GLE had failed to prove that Tan marketed Doctor Scrap us-
ing its customer lists rather than the trade association’s member list
(which happened to include GLE customers). The district court
likewise concluded that GLE was unlikely to succeed on its breach-
of-contract claims, finding that Tan’s app did not truly compete
with GLE because it did not actually facilitate trades. Accordingly,
the district court denied GLE’s preliminary-injunction motion and
ordered the TRO dissolved.
GLE timely appealed to this Court. The denial of a prelimi-
nary injunction “rests within the sound discretion of the district
court,” and we will reverse only if the district court abuses its con-
siderable discretion. Cunningham v. Adams,
808 F.2d 815, 819 (11th
Cir. 1987). Moreover, we review the district court’s “[u]nderlying
findings of fact [] for clear error.” L.E. by and Through Cavorley v.
Superintendent of Cobb Cnty. Sch. Dist.,
55 F.4th 1296, 1299 (11th Cir.
2022).
For reasons we’ll explain, we hold that that the district court
neither (1) abused its discretion in concluding that GLE failed to
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22-11870 Opinion of the Court 7
demonstrate irreparable injury nor (2) made any clearly erroneous
findings of fact in the course of so concluding. Accordingly, we
affirm the district court’s refusal to issue the preliminary injunction
on the irreparable-injury ground alone, making it unnecessary for
us to consider whether GLE successfully established a substantial
likelihood of success on the merits.
II
“A preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Nat. Res. Def. Council, Inc.,
555 U.S.
7, 24 (2008). In order to obtain one, the moving party (here, GLE)
must establish four separate requirements—that “(1) it has a sub-
stantial likelihood of success on the merits; (2) irreparable injury
will be suffered unless the injunction issues; (3) the threatened in-
jury to the movant outweighs whatever damage the proposed in-
junction may cause the opposing party; and (4) if issued, the injunc-
tion would not be adverse to the public interest.” Swain v. Junior,
961 F.3d 1276, 1284–85 (11th Cir. 2020).
A showing of irreparable harm is “the sine qua non of in-
junctive relief.” Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am.
v. City of Jacksonville, Fla.,
896 F.2d 1283, 1285 (11th Cir. 1990) (quot-
ing Frejlach v. Butler,
573 F.2d 1026, 1027 (8th Cir. 1978)). “The in-
jury must be ‘neither remote nor speculative, but actual and immi-
nent.’”
Id. (quoting Tucker Anthony Realty Corp. v. Schlesinger,
888
F.2d 969, 973 (2d Cir. 1989)). As we have explained, “[t]he key word
in this consideration is irreparable.”
Id. “Mere injuries, however
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8 Opinion of the Court 22-11870
substantial, in terms of money, time and energy necessarily ex-
pended in the absence of a stay, are not enough.”
Id.
In concluding that GLE had failed to demonstrate irrepara-
ble injury, the district court determined both (1) that GLE had not
“affirmatively demonstrated that it would suffer non-compensable
harm, such as irreversible damage to its reputation or loss of good
will” and (2) that any injuries that GLE sought to avoid “do not
appear to be imminent.” We find no abuse of discretion in either
determination.
Importantly, in its decision, the district court found the fol-
lowing facts: (1) that “[a]t this point in time, [GLE] has not lost any
business to [Tan’s] Doctor Scrap app”; (2) that “currently [GLE] has
not demonstrated the app facilitates actual trades as a middleman”;
(3) that “Tan has testified the app currently does not possess this
feature” and that GLE has “failed to rebut this assertion”; and (4)
that “the evidence did not show that the app currently acts as a
middleman, nor does it appear imminently likely to do so.” GLE
hasn’t demonstrated that those findings were clearly erroneous,
and together they amply support the district court’s determination
that GLE failed to show irreparable injury.
On appeal, GLE contends that its harm is indeed imminent
because even absent a trading function in the Doctor Scrap app,
“the damage to GLE’s goodwill ha[s] already started.” Br. of Ap-
pellant at 14. As the district court’s decision reflects, however, GLE
offered no evidence to substantiate that assertion. That failure is
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22-11870 Opinion of the Court 9
fatal, particularly given the standard by which we review the dis-
trict court’s decision.
III
The district court did not abuse its discretion in concluding
that GLE failed to establish irreparable injury and, on that ground,
refusing to issue a preliminary injunction. We needn’t consider
GLE’s argument that it successfully established substantial likeli-
hood of success on the merits.
AFFIRMED.
