Audiology Distribution, LLC v. Jill Hawkins ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2526
AUDIOLOGY DISTRIBUTION, LLC, d/b/a HEARUSA,
Plaintiff - Appellant,
v.
JILL K. HAWKINS, individually and d/b/a Hawkins Hearing,
LLC,
Defendant - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:13-cv-00154-FPS)
Submitted: June 26, 2014 Decided: July 16, 2014
Before KEENAN and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Theodore A. Schroeder, LITTLER MENDELSON, P.C., Pittsburgh,
Pennsylvania, for Appellant. Raymond A. Hinerman, Michael A.
Adams, HINERMAN & ASSOCIATES, Weirton, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Audiology Distribution, LLC, which does business as
HearUSA (“HearUSA”), appeals the district court’s denial without
prejudice of its Fed. R. Civ. P. 65(a) motion for a preliminary
injunction. HearUSA contends that Appellee Jill Hawkins, who
operates a competing provider of audiology services, Hawkins
Hearing, violates a non-compete agreement Hawkins executed when
she was employed by HearUSA. We have jurisdiction over this
interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1) and we
affirm.
We review the district court’s resolution of a motion
for a preliminary injunction for abuse of discretion. WV Ass’n
of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d
292, 298 (4th Cir. 2009). “A preliminary injunction is an
extraordinary remedy, to be granted only if the moving party
clearly establishes entitlement to the relief sought.”
Manning v. Hunt, 119 F.3d 254, 263 (4th Cir. 1997) (internal
quotation marks and alteration omitted). “A plaintiff seeking a
preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the
public interest.” Winter v. Natural Res. Def. Council, Inc.,
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555 U.S. 7, 20 (2008). An injunction “is not granted as a
matter of course.” Salazar v. Buono, 559 U.S. 700, 714 (2010).
HearUSA contends that the district court erred in
finding that it had not established a likelihood of irreparable
harm. Specifically, HearUSA argues that the evidence indicated
that it had already lost customers and goodwill as a result of
Hawkins’ actions, thus establishing the likelihood of damages
that are not easily quantifiable. See Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1055 (4th Cir.
1985).
However, despite some evidence that HearUSA might have
lost several customers to Hawkins, we cannot conclude the
district court erred in determining that the evidence of
irreparable harm was insufficient. See PBM Prods., LLC v. Mead
Johnson & Co., 639 F.3d 111, 125 (4th Cir. 2011) (defining clear
error). As the district court noted, HearUSA produced scant
evidence regarding how its operations had been or might be
affected should Hawkins continue to operate Hawkins Hearing.
Nor did HearUSA offer any indication that the nature of its
business was such that the loss of customers would result in
damages that could not be accurately measured and redressed
through money damages. See Multi-Channel TV Cable Co. v.
Charlottesville Quality Cable Operating Co., 22 F.3d 546, 552
(4th Cir. 1994), abrogated on other grounds by Winter, 555 U.S.
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7. Accordingly, although the evidence presented to the district
court might well have persuaded some judges to grant a
preliminary injunction, we conclude that the court acted within
its discretion to require more. See Gen. Motors Corp. v. Harry
Brown’s, LLC, 563 F.3d 312, 319-20 (8th Cir. 2009) (explaining
that “[p]art of the district court’s discretion is assessing
whether an alleged [irreparable] harm requires more substantial
proof”).
Accordingly, we affirm the district court’s order. 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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