Advanced Logistics, LLC v. Jennifer Comeaux

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1228

ADVANCED LOGISTICS, LLC

VERSUS

JENNIFER COMEAUX, BRAD BREWER,
RYAN FITZGERALD, AND NECESSA
SOLUTIONS, LLC

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2011-2094-C
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and James T.
Genovese, Judges.

AFFIRMED.

Steven G. Durio
Joseph F. Durio
Travis J. Broussard
Durio, McGoffin, Stagg & Ackermann
220 Heymann Boulevard
Post Office Box 51308
Lafayette, Louisiana 70505-1308
(337) 233-0300
Counsel for Defendants/Appellants:
Jennifer Comeaux, Brad Brewer,
Ryan Fitzgerald, & NecesSea Solutions, LLC
(formerly known as Necessa Solutions, LLC)

Bradford H. Felder
G. Andrew Veazey
HUVAL, VEAZEY, FELDER & RENEGAR, L.L.C.
2 Flagg Place
Lafayette, Louisiana 70508
(337) 234-5350
Counsel for Plaintiff/Appellee:
Advanced Logistics, LLC

GENOVESE, Judge.

In this trade secrets case, Defendants, Jennifer Comeaux, Brad Brewer, Ryan

Fitzgerald, and Necessa Solutions, LLC,1 appeal the trial court‟s grant of a

preliminary injunction in favor of Plaintiff, Advanced Logistics, LLC. For the

following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 11, 2011, Advanced Logistics, LLC, filed a Petition for Injunctive

Relief and for Damages for Unfair Trade Practices against Jennifer Comeaux, Brad

Brewer, Ryan Fitzgerald, and Necessa Solutions, LLC. According to its petition,

“[o]n Friday, March 25, 2010, Defendant, Ryan Fitzgerald, gave notice of his

resignation from Advanced Logistics. After giving his notice, Mr. Fitzgerald

removed equipment belonging to Advanced Logistics[,] including computers

containing Advanced Logistics‟ proprietary information and trade secrets.”

Sometime thereafter, Advanced Logistics learned that Mr. Fitzgerald was going to

work for a newly-formed business competitor, Necessa Solutions, LLC. On April

11, 2011, the President and CEO of Advanced Logistics, Jeffery Svendson, Sr.,

questioned Mr. Fitzgerald about the equipment that he was observed removing

from Advanced Logistics‟ property. Advanced Logistics‟ petition also alleged:

Mr. Fitzgerald admitted he removed the equipment, proprietary
information, and trade secrets from Advanced Logistics‟ offices.

....

Mr. Fitzgerald also admitted that he had been solicited by a
former employee of Advanced Logistics, Brad Brewer, to leave
Advanced Logistics and begin working for a company owned by Brad
Brewer and Jennifer Comeaux called Necessa Solutions, LLC.

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We note that in Appellants‟ brief, Necessa Solutions, LLC, is referred to as NecesSea,
LLC, and that the trial court judgment rendered in this case refers to NecesSea, LLC, f/k/a
Necessa Solutions, LLC. For the sake of clarity, we will refer to these entitites as Necessa
Solutions, LLC, throughout this opinion.

Defendants filed an Answer and Reconventional Demand denying “that

equipment, proprietary information, and trade secrets were taken by

[Mr. Fitzgerald].” However, Defendants admitted that it was their intention to

“compete with [Advanced Logistics], with an entirely different and superior

product.” Defendants‟ reconventional demand requested damages on the basis that

Advanced Logistics‟ claim was “groundless and brought in bad faith or for

purposes of harassment[.]”

A hearing on the motion for preliminary injunction against Defendants was

held, and the trial court issued Written Reasons for Judgment wherein it found that

Advanced Logistics was entitled to a preliminary injunction against Defendants.

The trial court then signed a judgment “enjoining Defendants from using any

confidential proprietary information or trade secrets of Advanced Logistics . . . and

ordering the [D]efendants to return within two (2) days hereof any equipment,

confidential proprietary information, or trade secrets belonging to Advanced

Logistics, which is in the [D]efendants‟ possession or control.” Defendants appeal,

and we affirm.

ASSIGNMENTS OF ERROR

On appeal, Defendants assert:

The trial court abused its discretion in the following specific ways:

1. The Court Abused Its Discretion In Issuing A Preliminary
Injunction When The Plaintiff Failed To Establish A Prima
Facie Case For An Injunction. . . .

a. The plaintiff failed to prove Defendants possessed
information of the plaintiff which constitutes a trade
secret.

b. The trial court did not balance the hardship to each party
if the injunction is issued or not issued.

2. The Trial Court Abused Its Discretion In Failing To Require
Plaintiff To Prove Its Case By A Preponderance Of The

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Evidence When Plaintiff Requested An Injunction Ordering
The Return Of Its Property. . . .

LAW AND DISCUSSION

In order to obtain a preliminary injunction, a petitioner must
show that he will suffer irreparable harm, he is entitled to the relief
sought, and he must [make] a prima facie showing that he will prevail
on the merits of the case. General Motors Acceptance Corp. v.
Daniels, 377 So.2d 346 (La.1979). An irreparable loss is one that
cannot be compensated by money or is not susceptible of
measurement by pecuniary standards. Hairford v. Perkins, 520 So.2d
1053 (La.App. 3 Cir.1987). “Trial courts have „great discretion‟ in
determining whether to grant or deny a preliminary injunction.”
Pumpelly Oil, Inc. v. Ribbeck Const. Corp., 02-868, p. 6 (La.App. 3
Cir. 2/5/03), 838 So.2d 88, 92.

Derouen’s Heavy Equip., Inc. v. Lafayette City-Parish Consol. Gov’t, 08-1077, pp.

2-3 (La.App. 3 Cir. 3/4/09), 7 So.3d 48, 50-51. “The issuance of a preliminary

injunction will not be disturbed on appeal absent an abuse of discretion. Smith

[v. W. Va. Oil & Gas Co.], 373 So.2d 488 [(La.1979)].” Gautreau v. Trahan,

07-875, p. 10 (La.App. 3 Cir. 12/5/07), 971 So.2d 445, 451.

The evidence adduced at the hearing of this matter established that

Defendants were former employees or owners of Advanced Logistics. The trial

court, in its Written Reasons for Judgment, expressed its belief in the contention of

Advanced Logistics that Defendants “took active steps to misappropriate software,

materials, and industry knowledge that meet the definition of „trade secret‟ under

La.R.S. 51:1431(4).”

Louisiana Revised Statutes 51:1431(4) of the Louisiana Uniform Trade

Secrets Act (LUTSA), defines a “trade secret” as:

information, including a formula, pattern, compilation, program,
device, method, technique, or process, that:

(a) derives independent economic value, actual or potential, from
not being generally known to and not being readily
ascertainable by proper means by other persons who can obtain
economic value from its disclosure or use, and

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(b) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.

Lousiana Revised Statutes 51:1431(2), provides that “misappropriation” means:

(a) acquisition of a trade secret of another by a person who
knows or has reason to know that the trade secret was acquired by
improper means; or

(b) disclosure or use of a trade secret of another without express
or implied consent by a person who:

(i) used improper means to acquire knowledge
of the trade secret; or

(ii) at the time of disclosure or use, knew or had
reason to know that his knowledge of the
trade secret was:

(aa) derived from or through a person
who had utilized improper means to
acquire it;

(bb) acquired under circumstances
giving rise to a duty to maintain its
secrecy or limit its use; or

(cc) derived from or through a person
who owed a duty to the person
seeking relief to maintain its secrecy
or limit its use; or

(iii) before a material change of his position,
knew or had reason to know that it was a
trade secret and that knowledge of it had
been acquired by accident or mistake.

The trial court determined that the misappropriation of Advanced Logistics‟

trade secrets by Defendants “may create a substantial threat of irreparable injury.”

The trial court futher declared that “the injunctive relief that Advanced Logistics

seeks would only prohibit the [D]efendants from engaging in unlawful acts.”

Defendants contend the trial court erred when it failed to consider the

hardship that an injunction against it would create. However, at the hearing on the

preliminary injunction, Defendants asserted they neither needed nor wanted any

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proprietary information belonging to Advanced Logistics because they were

creating a superior, albeit different, product. If that is the case, Defendants‟

argument that an injunction would subject it to an unfair hardship is groundless.

Finally, Defendants contend that the trial court should have required

Advanced Logistics to establish its case by a preponderance of the evidence

because the injunction requested, and the trial court ordered, a return of property.

Again, at the hearing on the preliminary injunction, Defendant asserted they were

not in possession of any proprietary information or property belonging to

Advanced Logistics. All information and property once in Ryan Fitzgerald‟s

possession was allegedly returned on April 11, 2011, when he was confronted by

Mr. Svendson. The evidence established that Mr. Fitzgerald admitted that he took

property and information from Advanced Logistics only after he was shown

indisputable photo evidence of himself in possession of said items by

Mr. Svendson. Therefore, we find no error in the trial court‟s order that

Defendants return anything in their possession nor in the burden of proof to which

Advanced Logistics was held. The record before us supports a prima facie

showing by Advanced Logistics. We further note that this matter involves a

preliminary injunction. This is neither a hearing on a permanent injunction nor a

trial on the merits. Considering the evidence in the record, we find that the trial

court did not abuse its “great discretion” in its issuance of a preliminary injunction.

DECREE

For the foregoing reasons, we affirm the trial court judgment

granting the preliminary injunction in favor of Advanced Logistics, LLC.

Defendants/Appellants, Jennifer Comeaux, Brad Brewer, Ryan Fitzgerald, and

Necessa Solutions, LLC, are cast with all costs of this appeal.

AFFIRMED.

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