20CA1407 Bluebird v Johnson 12-02-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA1407
Boulder County District Court No. 20CV30549
Honorable Bruce Langer, Judge
Bluebird Botanicals, LLC,
Plaintiff-Appellee,
v.
Jeremiah Desmond O’Leary, f/k/a Jeremiah Johnson,
Defendant-Appellant.
ORDER AFFIRMED
Division I
Opinion by JUDGE DUNN
Dailey and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 2, 2021
Lewis, Brisbois, Bisgaard & Smith, LLP, Benjamin Hase, Denver, Colorado, for
Plaintiff-Appellee
Jeremiah Desmond O’Leary, Pro Se
1
¶ 1 Defendant, Jeremiah Desmond O’Leary, f/k/a Jeremiah
Johnson (Mr. Johnson), appeals the district court’s order granting a
preliminary injunction in favor of plaintiff, Bluebird Botanicals, LLC
(Bluebird), restraining Mr. Johnson from disparaging Bluebird and
barring him from disseminating and using Bluebird’s trade secrets
or confidential information. We affirm.
I. Background
¶ 2 In August 2018, Bluebird hired Mr. Johnson as a digital
marketer.
1
When hired, Mr. Johnson signed an at-will employment
and nondisclosure agreement (nondisclosure agreement), which,
among other things, prohibited him from disseminating Bluebird’s
trade secrets and confidential information and gave Bluebird “the
right to injunctive relief” if he did so.
¶ 3 Bluebird terminated Mr. Johnson in September 2019. At that
time, the parties entered a severance agreement and general release
(severance agreement), under which Mr. Johnson received $2,000
in exchange for releasing “any and all claims” against Bluebird.
1
We take the facts from the parties’ pleadings.
2
This agreement, too, included nondisclosure, nondisparagement,
and confidentiality provisions.
¶ 4 In July 2020 — after learning Mr. Johnson had contacted one
of its vendors and then contacted one of its customers (and
allegedly provided the customer confidential information) —
Bluebird sued Mr. Johnson for breach of contract, civil theft, and
misappropriation of trade secrets, seeking injunctive relief and
damages.
¶ 5 In response to Bluebird’s motion for injunctive relief, the
district court entered an order temporarily restraining Mr. Johnson
from contacting Bluebird’s clients and disseminating or using
Bluebird’s confidential information. The court then set a hearing on
Bluebird’s motion for a preliminary injunction.
¶ 6 After hearing testimony and considering the evidence, the
court found Bluebird had “met its burden” and entered a
preliminary injunction, restraining Mr. Johnson from disparaging
Bluebird and disseminating or using its trade secrets and
confidential information.
3
¶ 7 The court didn’t rule on the merits of Bluebird’s claims for
breach of contract, civil theft, or misappropriation of trade secrets;
those claims were still pending as of the date of the appeal.
II. Analysis
¶ 8 Mr. Johnson contends the district court abused its discretion
by granting the preliminary injunction. Because we perceive no
abuse of discretion, we affirm.
A. Legal Principles and Standard of Review
¶ 9 A preliminary injunction is a temporary form of equitable relief
meant to preserve the status quo or to protect a party’s rights
pending the final determination of a case on its merits. City of
Golden v. Simpson, 83 P.3d 87, 96 (Colo. 2004); Gitlitz v. Bellock,
171 P.3d 1274, 1278 (Colo. App. 2007).
¶ 10 A district court may grant a preliminary injunction only if the
moving party shows
(1) a reasonable probability of success on the
merits;
(2) a danger of real, immediate, and irreparable
injury which may be prevented by injunctive
relief;
(3) that there is no plain, speedy, and adequate
remedy at law;
4
(4) that the granting of a preliminary
injunction will not disserve the public interest;
(5) that the balance of equities favors the
injunction; and
(6) that the injunction will preserve the status
quo pending a trial on the merits.
Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982) (citations
omitted); accord Gitlitz, 171 P.3d at 1278.
¶ 11 We review a district court’s decision to grant a preliminary
injunction for an abuse of discretion. Markwell v. Cooke, 2021 CO
17, ¶ 21. Thus, we will only overturn the court’s decision if it’s
manifestly arbitrary, unreasonable, or unfair, or a misapplication of
other grounds, 2020 CO 73. And we will uphold the district court’s
factual findings “unless they are so clearly erroneous as to find no
support in the record.” Id. at ¶ 16.
B. The District Court’s Order
¶ 12 At the preliminary injunction hearing, Mr. Johnson testified,
as did Bluebird’s Chief People Officer and a cybersecurity
investigator. The parties also introduced several exhibits. In its
detailed written order, the court summarized the evidence and
made the following findings of fact:
5
• Mr. Johnson “breached several sections [of the
nondisclosure agreement] . . . by emailing a spreadsheet to
[a Bluebird customer] containing [Bluebird’s] customer
order information, pricing history, payment type
information and other confidential information,” which
Bluebird’s Chief People Officer testified were trade secrets.
• Mr. Johnson “breached several sections of the [s]everance
[a]greement” by disparaging Bluebird in emails to a
Bluebird customer and a Bluebird marketing vendor.
• Specifically, the email to the marketing vendor “was
disparaging in that it alleged criminal and unethical
behavior by [Bluebird] and negatively impacted the business
relationship between [the vendor] and [Bluebird].”
• Mr. Johnson “acknowledged that he signed the [s]everance
[a]greement” but had “claimed that he did not have to follow
the [s]everance [a]greement.”
• Mr. Johnson admitted he contacted the vendor.
• Mr. Johnson admitted he “downloaded” Bluebird’s data and
emails but claimed that he didn’t need “prior written
consent in order to disclose [Bluebird’s] data.”
6
• Mr. Johnson “continues to believe that he has the right to
reach out to [the customer].”
¶ 13 Based on those findings, the court then applied the proper six-
factor test and concluded Bluebird had satisfied its burden to show
preliminary injunctive relief was warranted. See Rathke, 648 P.2d
C. The District Court Acted Within its Discretion
¶ 14 To start, Mr. Johnson generally disputes the district court’s
findings on “all six elements.” But because the record doesn’t
include the preliminary injunction hearing transcript, we must
presume the missing transcript supports the district court’s
findings and conclusions. See Hock v. N.Y. Life Ins. Co., 876 P.2d
1242, 1252 (Colo. 1994) (“An appellate court must presume that the
[district] court’s findings and conclusions are supported by the
evidence when the appellant has failed to provide a complete
record.”); accord Sovde v. Scott, 2017 COA 90, ¶ 43. With this in
mind, we consider the court’s findings and conclusions on each
preliminary injunction factor.
¶ 15 First, the court found Bluebird demonstrated a reasonable
probability of success on the merits because Mr. Johnson admitted
7
to downloading and distributing Bluebird’s trade secrets and
continued to believe he had the right to reach out to a Bluebird
customer. Though Mr. Johnson disagrees that the disclosed
information constituted trade secrets, the court’s finding is based
on witness testimony (which we presume has record support) and
the nondisclosure and severance agreements. Thus, we may not
disturb this finding. See Woodbridge Condo. Ass’n v. Lo Viento
876 P.2d at 1252. And to the extent Mr. Johnson contends his
actions were justified to report Bluebird’s “unlawful business
practices,” that doesn’t negate the court’s findings that he admitted
to disseminating Bluebird’s trade secrets.
¶ 16 Second, the court found Mr. Johnson’s actions presented “a
danger of real, immediate, and irreparable injury to” Bluebird.
Specifically, the court found that Mr. Johnson’s disparaging
comments to Bluebird’s vendor “impacted [Bluebird’s] business
relationship” with the vendor and that transmitting trade secrets to
Bluebird’s customer created “a danger of real and irreparable injury
. . . should the loss or even temporary cessation of the business
relationship with [the customer] occur.” Mr. Johnson doesn’t
8
contest these findings but argues the court erred because it failed
to apply “standing, mootness, and ripeness.” But we’re unaware of
any authority — and Mr. Johnson points us to none — stating that
those justiciability doctrines are related to this second injunctive
factor.
2
Nor do we see any obvious jurisdictional concerns.
¶ 17 Third, the court found no plain, speedy, and adequate remedy
at law because Bluebird couldn’t guarantee that additional
instances of disparagement or transmission of trade secrets
wouldn’t occur “given [Mr. Johnson’s] admitted conduct and prior
history.” The court also reasoned that monetary damages “are
difficult or impossible to ascertain when trade secrets are
disseminated,” and “the impacts from disparagement upon
[Bluebird’s] business relationships and reputation cannot be
realized until it has already occurred.” Mr. Johnson says this was
error because “no actual damages were shown” and “courts should
refuse to consider uncertain or contingent future matters that
suppose speculative injury that may never occur.” But, as the
2
To the extent Mr. Johnson contends Board of Directors, Metro
Wastewater Reclamation District v. National Union Fire Insurance Co.
of Pittsburgh, 105 P.3d 653, 656 (Colo. 2005) is instructive, we are
unpersuaded as that case doesn’t involve a preliminary injunction.
9
district court correctly found, “[a]n injury may be irreparable . . .
where monetary damages are difficult to ascertain or where there
exists no certain pecuniary standard for the measurement of the
damages.” Gitlitz, 171 P.3d at 1279; see also Kroupa v. Nielsen, 731
F.3d 813, 820 (8th Cir. 2013) (“Because damage to one’s reputation
is a harm that cannot be remedied by a later award of money
damages, the threat of reputational harm may form the basis for
preliminary injunctive relief.”).
¶ 18 Fourth, the court recognized a “public interest in employees
being able to bring forth complaints against employers, and to
disclose illegal activity to law enforcement.” But the court
concluded that doing so doesn’t require either the unauthorized
distribution of trade secrets or the disparagement of the employer.
It therefore found that a preliminary injunction wouldn’t disserve
the public interest. Though Mr. Johnson contends Bluebird’s
“public health violations” and “unauthorized practice of medicine”
do disserve the public interest, the district court correctly
concluded that Mr. Johnson may report any concerns about
Bluebird’s practices without disparaging Bluebird or disseminating
10
its trade secrets. The court’s findings are therefore not manifestly
unreasonable or unfair.
¶ 19 Fifth, the court found the balance of equities favors granting
the injunction, emphasizing it was not entering a final judgment in
the dispute. Mr. Johnson contends he has the right to report
unlawful business practices as a “whistleblower.” But the
preliminary injunction doesn’t prevent him from pursuing his
whistleblower claims. Rather, it prevents him from disparaging
Bluebird and disseminating its trade secrets. Also, as the court
pointed out, “[a] law enforcement agency or governmental entity
conducting an investigation has the power of subpoena should the
release of confidential information be required.”
¶ 20 And sixth, the court found a preliminary injunction would
preserve the status quo by “[p]reventing further transmission of
[Bluebird’s] trade secrets and disparagement.” As best we can tell,
Mr. Johnson doesn’t appear to contest this factor. The status quo
means, of course, that Mr. Johnson has the right to raise his
defenses to Bluebird’s claims during the litigation of those claims.
The district court’s findings after the “preliminary injunction
hearing are not determinative of the ultimate merits of the case.”
3
¶ 21 Given all this, we can’t say the court abused its discretion by
granting the preliminary injunction. See Sanger v. Dennis, 148 P.3d
404, 419 (Colo. App. 2006) (concluding that because the record
supported the district court’s findings, the court didn’t abuse its
discretion by granting the preliminary injunction).
III. Other Issues
¶ 22 Mr. Johnson also appears to raise other issues beyond his
challenge to the preliminary injunction order. To the extent he
does, nothing else is before us. The sole final, appealable order
challenged in the notice of appeal is that addressing the request for
injunctive relief. See C.A.R. 1(a)(3) (a preliminary injunction is
appealable as a final order); see also Sanger, 148 P.3d at 409 (“A
preliminary injunction is considered to be a final order and is
appealable under C.A.R. 1(a)(3).”). And to the extent Mr. Johnson
raises arguments not presented to — or ruled on by — the district
court, we decline to consider them. See Est. of Stevenson v.
3
We express no opinion on the merits of Bluebird’s claims or Mr.
Johnson’s defenses.
12
Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992)
(arguments not considered and ruled on by the district court are
not preserved for appellate review); see also Gf Gaming Corp. v.
Taylor, 205 P.3d 523, 528 (Colo. App. 2009).
IV. Appellate Attorney Fees
¶ 23 Bluebird requests attorney fees and costs under C.A.R. 38,
arguing Mr. Johnson’s appeal is frivolous and “primarily comprised
of non-appealable issues that have been recycled from countless,
repetitive filings.” Bluebird also says Mr. Johnson falsely stated
that he (1) “preserved issues” and (2) “raised arguments at the time
of the preliminary injunction hearing.”
¶ 24 A self-represented party shall not be assessed attorney fees
except upon a finding that the “party clearly knew or reasonably
should have known” that his appeal was “substantially frivolous,
substantially groundless, or substantially vexatious.” § 13-17-
(Colo. App. 1992) (reversing an attorney fee judgment against the
self-represented plaintiffs because the trial court didn’t find “the
plaintiffs knew or reasonably should have known that filing of the
suit lacked substantial justification”).
13
¶ 25 Bluebird doesn’t contend that Mr. Johnson “clearly knew or
reasonably should have known” that his appeal was frivolous. Nor
can we conclude he did. After all, the district court told Mr.
Johnson that he could file an appeal if he believed the court erred
by granting the preliminary injunction. That Mr. Johnson doesn’t
precisely understand the contours of issue preservation reflects his
self-represented status, rather than an obvious effort to pursue a
knowingly frivolous appeal.
¶ 26 We thus deny Bluebird’s request for appellate attorney fees
and single or double costs under C.A.R. 38. And to the extent Mr.
Johnson requests “damages and legal fees,” we likewise deny that
request.
V. Conclusion
¶ 27 We affirm the order granting Bluebird’s request for a
preliminary injunction.
JUDGE DAILEY and JUDGE KUHN concur.