# KOVA Commercial of Naples, LLC v. Sabin

> District Court, M.D. Florida · October 4, 2023

URL: https://www.frixlaw.com/law-library/cases/10114140

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** October 4, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

KOVA COMMERCIAL OF NAPLES,
LLC,

Plaintiff,

v. Case No: 2:23-cv-614-JES-KCD

TODD SABIN,

Defendant.

OPINION AND ORDER
This matter comes before the Court on KOVA Commercial of
Naples, LLC’s (KOVA or Plaintiff) Third Motion for Temporary
Restraining Order and First Motion for a Preliminary Injunction
(Doc. #31) filed on September 6, 2023. Todd Sabin (Sabin or the
Defendant) filed a Response in Opposition (Doc. #36) on September
18, 2023. After KOVA filed a Reply (Doc. #38) with permission from
the Court, Sabin filed a motion for leave to amend his response.
(Doc. #39). KOVA also filed a request for oral argument. (Docs.
##32-33.) Because a hearing is unnecessary to resolve KOVA’s
motion, the request for a hearing is denied.1 For the reasons set

1 “A district court need not hold an evidentiary hearing prior
to the issuance of every preliminary injunction.” CBS Broad., Inc.
v. EchoStar Commc'ns Corp., 265 F.3d 1193, 1207 n.18 (11th Cir.
2001). Whether to hold an evidentiary hearing is left “to the sound
discretion of the district court” and required “only ‘where facts
are bitterly contested and credibility determinations must be made
to decide whether injunctive relief should issue.’” Cumulus Media,
Inc. v. Clear Channel Commc'ns, Inc., 304 F.3d 1167, 1178 (11th
forth below, Sabin’s motion is denied and KOVA’s motion is denied
as moot as to the Temporary Restraining Order and is otherwise
granted.
I.
The relevant facts were recently summarized by this Court:
KOVA . . . is a commercial real estate brokerage
firm that helps clients buy, sell, lease, and rent non-
residential properties. On or about August 5, 2016,
[Sabin] became KOVA’s Managing/Qualifying Broker. In
that role, Sabin gained documentary access to KOVA’s
finances, sales, strategy, actual and prospective client
lists, referral sources, and more. The parties executed
an operating agreement and Sabin received a forty-five
percent ownership interest in the firm. The operating
agreement prohibited Sabin from, among other things: (i)
working, being employed by, having any ownership
interest in, or otherwise having any affiliation with
another real estate brokerage firm in Collier or Lee
County and (ii) soliciting business or interfering in
the relationship between KOVA and a client for one year
following the termination of his interest in the firm.

As time passed, the relationship soured. On or
about August 4, 2023, Sabin resigned. During his
resignation meeting, he stated that he planned to
operate his own brokerage firm and to begin competing
with KOVA “starting tomorrow.” After the meeting, KOVA
allegedly uncovered a few revelations. First, Defendant
had owned and operated his own real estate brokerage
firm, “Todd T. Sabin, P.A.” since 2006. Second, upon
resigning, Defendant removed and took with him all the
documents in his office. Third, Defendant had been
sending documents from his firm-issued email account to
apparently his own personal email accounts for months
prior to his resignation. These documents include, among
other things: client contact information, client
financial information, a client’s strategic investment
and development plan, KOVA’s year-end financials,
management forms, lease summaries, tenant leases, rent

Cir. 2002)(quoting McDonald's Corp. v. Robertson, 147 F.3d 1301,
1312 (11th Cir.1998)).
rolls, and tenant contact information. And forth,
Defendant allegedly contacted multiple KOVA clients upon
his departure from the firm, including one from whom
Defendant obtained a letter stating the client’s desire
to keep Defendant as their agent.

(Doc. #19, p. 1-3.)

The parties’ operating agreement identifies Sabin as a “Class
B Member” (Doc. #30, Ex. 1, p. 15)2 and specifically sets the
following restrictive covenants:
Section 8. Limitations Engaging in Other Businesses.
a. Notwithstanding anything to the contrary in this
Agreement and as a condition precedent and material
inducement to admitting the Class B Member, the
Class B Member agrees and accepts the following
restrictions. For so long as a Class B Member owns
an Interest in the Company such Class B Member will
not, directly or indirectly, do any of the
following: (i) work at or be employed by or have
any direct or indirect ownership or profit-sharing
interest in any real estate brokerage firm or
company located or operating in Collier or Lee
County, Florida; or (ii) be affiliated in any
manner with any other real estate brokerage firm or
company located or operating in Collier or Lee
County, Florida, nor shall act, in its individual
capacity, as a sales associate or broker for any
other real estate company or broker in Collier or
Lee County, Florida in any manner. For a period of
one (1) year after the Class B Member has owned an

2 In its Amended Complaint, KOVA labeled its exhibits,
including this one, in letter format (A,B,C, etc.). Instead of the
alphabetical letters used by KOVA, the Court will cite each exhibit
by the numerical number assigned to it by the Court's CM/ECF
system. In its present motion, KOVA labeled its exhibits
numerically, but some exhibits differ from the numerical number
assigned to it by the Court’s CM/ECF system (e.g., exhibit 12 in
the CM/ECF system was labeled by KOVA as exhibit 11). Again, the
Court will cite each exhibit by the numerical number assigned to
it by the Court's CM/ECF system.
Interest in the Company such Class B Member agrees
to be bound by Section 9 below.
. . .
Section 9. Non-Solicitation. Each Class B Member
covenants and agrees that for as long as said Member
owns a membership interest in the Company (or owns an
interest in a legal entity or trust which owns a
membership interest in the Company) and for a period of
one (1) year thereafter, said Member shall not directly
or indirectly do any of the following:
a. solicit business from, entice away from, accept
work involving or otherwise interfere with the
relationship of any client or prospective client
(including any person or entity that was a client
or prospective client of the Company at the time of
execution of this Operating Agreement; or
b. solicit the services of, or hire, any individual
who is employed the Company (or who was employed by
the Company in the then most recent 1-year period),
or who is retained by the Company as an independent
contractor, or take any action that results, or
might reasonably result, in any individual
performing services for the Company to cease
performing such services.
The activities described in this Section shall be
prohibited regardless of whether undertaken by the Class
B Member, or any of the Class B Member's agents or
representatives, and regardless of whether performed for
the Class B Member's own account or for the account of
any other individual, partnership, firm, corporation or
other business entity (other than the Company). If a
Class B Member is ever in breach of any of the provisions
of this Section, then any time periods applicable to
such party as are set forth in this Section shall be
extended by the length of time during which such breach
existed.
(Id., pp. 24-25.) The operating agreement also incorporates a
document titled “NON-COMPETITION AND NON-SOLICITATION AGREEMENT”
that in pertinent part reads as follows:
1. Non-Competition and Non-Solicitation. Sabin covenants
and agrees that for so long he owns a membership interest
in the Company (or owns an interest in a legal entity or
trust which owns a membership interest in the Company),
Sabin shall not directly or indirectly do any of the
following:
a. work at or be employed by or have any direct or
indirect ownership or profit-sharing interest in
any real estate brokerage firm or company located
or operating in within the Restricted Area (as
defined herein); (ii) be affiliated in any manner
with any other real estate brokerage firm or
company located or operating within the Restricted
Area (as defined herein); (iii) act, in its
individual capacity, as a sales associate or broker
for any other real estate company or broker within
the Restricted Area (as defined herein); or (iv)
manage, operate, join, control, participate in, be
connected with (as an officer, employee, partner,
member, shareholder, consultant, lender, investor
or otherwise), enter into any agreement reflecting
a business transaction with or without any interest
(directly or indirectly) in any partnership,
company, firm, corporation or any other business
organization, person or entity that competes with
the Company in the business for which it is engaged.
For purposes of this subsection, "Restricted Area"
shall mean Collier County and Lee County, Florida;

b. In addition, Sabin covenants and agrees that for
so long he owns a membership interest in the Company
(or owns an interest in a legal entity or trust
which owns a membership interest in the Company),
and for one (1) year thereafter, Sabin shall not
directly or indirectly solicit business from,
entice away from, accept work involving or
otherwise interfere with the relationship of any
client or prospective client (including any person
or entity that was a client or prospective client
of the Company as of the Effective Date of the
Operating Agreement of the Company; or
c. solicit the services of, or hire, any individual
who is employed the Company (or who was employed by
the Company in the then most recent one (1) year
period), or who is retained by the Company as an
independent contractor or consultant, or take any
action that results, or might reasonably result, in
any individual performing services for the Company
to cease performing such services.
The activities described in this Section 1 shall be
prohibited regardless of whether undertaken by Sabin, or
any of her agents or representatives, and regardless of
whether performed for Sabin own account or for the
account of any other individual, partnership, firm,
corporation or other business entity (other than the
Company). If Sabin is ever in breach of any of the
provisions of this Agreement, then any time periods
applicable to such party as are set forth in this
Agreement shall be extended by the length of time during
which such breach existed.
2. Enforcement of Agreement. The Company shall be
entitled to all rights and remedies available under
Florida law to prevent, prohibit or otherwise cease
Sabin's violation of the terms of this Agreement
including, without limitation, the right to enforce the
terms hereof by specific performance and injunction, and
the right to seek any and all resulting damages. Sabin
acknowledges and agrees that a claim for damages for
breach of the provisions herein contained shall not
preclude the Company from seeking injunctive or such
other forms of relief as may be obtained in a court of
law or equity, and that the Company, in lieu of or in
addition to the remedy of damages, may seek injunctive
relief prohibiting Sabin from breaching or continuing to
breach the provisions of this Agreement. Sabin hereby
acknowledges and warrants her experience and
capabilities are such that she will be fully able to
earn an adequate livelihood for himself or herself and
his or her family if this Section should be specifically
enforced by the Company.
(Id., pp. 40-41.)
II.
KOVA previously filed two motions for temporary restraining
order. (See Docs. ## 6, 24.) The first was denied due to non-
compliance with the Federal Rules of Civil Procedure (FRCP) and
the Local Rules for the Middle District of Florida (Local Rules).
(See Doc. #19.) The second was denied because KOVA’s Complaint was
a shotgun pleading and the operating agreement was missing from
KOVA’s papers. (See Doc. #26.) KOVA has since filed the operating
agreement (see Doc. #30, Ex. 1) and an Amended Complaint (AC).
(See Doc. #30.) This operative pleading contains eight counts: (1)
breach of contract; (2) violation of the Defend Trade Secrets Act

(DTSA); (3) violation of Florida’s Uniform Trade Secrets Act
(FUTSA); (4) misappropriation of confidential information; (5)
breach of fiduciary duty; (6) tortious interference with
advantageous business relationships; (7) declaratory judgment; and
(8) injunctive relief.
KOVA now moves for a temporary restraining order and a
preliminary injunction:
i) restraining and enjoining Sabin from directly or
indirectly using, permitting to be used,
disclosing, or transmitting for any purpose any of
KOVA’s confidential or trade secret information;
ii) restraining and enjoining Sabin from communicating
with or otherwise soliciting, either directly or
indirectly, or accepting business from, or
otherwise interfering with any of KOVA’s clients or
prospective clients, or soliciting KOVA’s
employees, or agents, for one year; and
iii) requiring Sabin to return immediately to KOVA all
originals, copies, and other reproductions, in any
form whatsoever, or any and all documents of
KOVA’s, including but not limited to copies of any
files accessed, copied, downloaded, deleted,
opened, or otherwise modified by Sabin and (after
preserving all materials in an appropriate manner
for purposes of this litigation including metadata)
to purge or destroy any computerized records Sabin
has in his possession, custody, or control.
(Doc. #31, p. 25.)
III.
The FRCP and the Local Rules authorize a court to issue a
preliminary injunction under certain circumstances. See Fed. R.
Civ. P. 65(a); M.D. Fla. R. 6.02. A preliminary injunction will be
issued only if the movant demonstrates: “(1) he has a substantial
likelihood of success on the merits, (2) he will suffer irreparable
injury unless the injunction issues, (3) the injunction would not
substantially harm the other litigant, and (4) if issued, the
injunction would not be adverse to the public interest.” Long v.
Sec'y, Dep't of Corr., 924 F.3d 1171, 1176 (11th Cir. 2019). “A
preliminary injunction is an extraordinary and drastic remedy not
to be granted unless the movant clearly establishes the burden of
persuasion as to the four requisites.” Vital Pharms., Inc. v.
Alfieri, 23 F.4th 1282, 1291 (11th Cir. 2022)(quoting Forsyth Cnty.
v. U.S. Army Corps of Eng'rs, 633 F.3d 1032, 1039 (11th Cir.
2011)). But a movant need only demonstrate a substantial likelihood

of success on one of his claims—not all his claims—to secure a
preliminary injunction. Alabama v. U.S. Army Corps of Eng’rs, 424
F.3d 1117, 1134 (11th Cir. 2005); Louis v. Meissner, 530 F. Supp.
924, 926 (S.D. Fla. 1981). Ultimately, “[t]he grant or denial of a
preliminary injunction is a decision within the sound discretion
of the district court.” United States v. Lambert, 695 F.2d 536,
539 (11th Cir. 1983).
The Court will consider KOVA’s motion by evaluating its
breach-of-contract claim. In Florida, “[t]he three elements of a
breach-of-contract action are: (1) a valid contract; (2) a material
breach; and (3) damages.” Rauch, Weaver, Norfleet, Kurtz & Co. v.

AJP Pine Island Warehouses, Inc., 313 So. 3d 625, 630 (Fla. 4th
DCA 2021)(citing Friedman v. New York Life Ins. Co., 985 So. 2d
56, 58 (Fla. 4th DCA 2008)). The Court is “guided by [Fla. Stat.
§ 542.335], ‘which contains a comprehensive framework for
analyzing, evaluating and enforcing restrictive covenants
contained in employment contracts.’” Vital Pharms., Inc., 23 F.4th
at 1291 (quoting Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223,
1230–31 (11th Cir. 2009)). But that guidance is not absolute. After
all, “[u]nder Erie and its progeny, ‘federal courts sitting in
diversity apply state substantive law and federal procedural
law.’” Garcia v. Chiquita Brands Int'l, Inc., 48 F.4th 1202, 1210

(11th Cir. 2022)(quoting Gasperini v. Ctr. for Humanities, Inc.,
518 U.S. 415, 427(1996)).
For our purposes, “[b]ecause we are interpreting Florida law,
we look first for case precedent from Florida's highest court—the
Florida Supreme Court.” SE Prop. Holdings, LLC v. Welch, 65 F.4th
1335, 1342 (11th Cir. 2023)(citing Winn-Dixie Stores, Inc. v.
Dolgencorp, LLC, 746 F.3d 1008, 1021 (11th Cir. 2014)). “Where
that court has not spoken, however, we must predict how the highest
court would decide this case.” Id. (quoting Turner v. Wells, 879
F.3d 1254, 1262 (11th Cir. 2018)). “In making this prediction, ‘we
are bound to adhere to the decisions of the state's intermediate
appellate courts absent some persuasive indication that the
state's highest court would decide the issue otherwise.’” Id.

(cleaned up)(quoting Winn-Dixie, 746 F.3d at 1021).
IV.
The Court first addresses the merits of a preliminary
injunction before turning to the merits of Sabin’s motion to amend.
A. The preliminary injunction
To determine whether a preliminary injunction is merited, the
Court begins by analyzing whether KOVA’s breach-of-contract claim
has a substantial likelihood of success on the merits.
1. KOVA’s likelihood of success on the merits is high
Sabin makes two applicable arguments challenging the
propriety of an injunction. First, Sabin argues that the “plain

language” of the restrictive covenants makes clear that “it applies
only to those clients or perspective clients of Plaintiff which
existed on August 5, 2016.” (Doc. #36, pp. 3, 8.) Second, Sabin
argues that because the Plaintiff has not named a specific client,
he has failed to show a legitimate business interest in accordance
with Fla. Stat. § 542.335. (See id., p. 9.) Both arguments are
unpersuasive, as explained below.
i. The restrictive covenants unambiguously restrict
Sabin from soliciting any of KOVA’s current or
prospective clients
The Court first focuses on the “single provision” that,
according to Sabin, “this case boils down to”:
Section 9. Non-Solicitation. Each Class B Member
covenants and agrees that for as long as said Member
owns a membership interest in the Company (or owns an
interest in a legal entity or trust which owns a
membership interest in the Company) and for a period of
one (1) year thereafter, said Member shall not directly
or indirectly do any of the following:
a. solicit business from, entice away from, accept
work involving or otherwise interfere with the
relationship of any client or prospective client
(including any person or entity that was a client
or prospective client of the Company at the time of
execution of this Operating Agreement; or
(Id., p. 2)(quoting Doc. #31, Ex. 2, pp. 24-25.) Sabin argues this
restrictive covenant is “limited to ‘any person or entity that was
a client or prospective client of the Company at the time of
execution of this Operating Agreement.’” (Id., p. 8)(quoting Doc.
#31, Ex. 2, p. 24.) KOVA interprets the non-solicitation clause to
apply to all of its current and prospective clients, while Sabin
interprets it to only apply to any prospective or actual client of
KOVA’s at the time the contract was executed. Sabin’s position is
consistent with KOVA’s allegations (see Doc. #30, ¶ 93)(recounting
that Sabin asserted at his resignation meeting “that his non-
solicitation obligations were limited to clients who were clients
of KOVA at the time the Operating Agreement was executed”) but not
with the plain reading of the contract.
“Florida law calls for a two-stage analysis” when construing
restrictive covenants. (Doc. #36, p. 5)(quoting Winn-Dixie Stores,
Inc., 746 F.3d at 1022.) “Courts first ask whether a restrictive
covenant is ambiguous. And second, if it is, ‘substantial ambiguity
or doubt must be resolved against the person claiming the right to
enforce the covenant.’” Winn-Dixie Stores, Inc., 746 F.3d at

1022(quoting Moore v. Stevens, 90 Fla. 879, 106 So. 901, 904
(1925)). Because the language is unambiguous, the Court need not
reach the second stage of the analysis.3
“In Florida, ambiguity exists when a restrictive covenant ‘is
susceptible to two different interpretations, each one of which is
reasonably inferred from [its] terms.’” Id. (alteration in
original)(quoting Commercial Capital Res., LLC v. Giovannetti, 955
So.2d 1151, 1153 (Fla. 3d DCA 2007)). “When interpreting restrictive

3 Even if the language was ambiguous, the second stage of the
analysis seems to have been overturned by the Florida legislature
with the enactment of Fla. Stat. § 542.335(1)(h), which reads:
A court shall construe a restrictive covenant in favor
of providing reasonable protection to all legitimate
business interests established by the person seeking
enforcement. A court shall not employ any rule of
contract construction that requires the court to
construe a restrictive covenant narrowly, against the
restraint, or against the drafter of the contract.
Id. The enactment of this section, the Eleventh Circuit has
said, was an effort by the Florida legislature “to
legislatively discard[] prior Florida decisions that invoked
and applied such doctrines in restrictive covenant cases.”
Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223, 1240 (11th
Cir. 2009)(alteration in original)(quotations omitted).
covenants, the courts ‘should give effect to the commonly
understood meaning of the words of the pertinent provisions.’”
Clark v. Bluewater Key RV Ownership Park Prop. Owners Ass'n, Inc.,
226 So. 3d 276, 282 (Fla. 3d DCA 2017)(quoting Gem Estates Mobile
Home Vill. Ass'n v. Bluhm, 885 So.2d 435, 437 (Fla. 2d DCA 2004)).
In doing so, the Court “must consider the document as a whole,

rather than attempting to isolate certain portions of it.” Id.
(quoting Lambert v. Berkley S. Condo. Ass'n, Inc., 680 So.2d 588,
590 (Fla. 4th DCA 1996)).
Sabin’s interpretation of the clause is unreasonable because
he equates the word ‘including’ to a word like ‘only,’ and in the
process ignores the rest of the provision so as to rob the
restrictive covenant of its intent. By its plain language, Sabin
cannot “solicit business from, entice away from, accept work
involving or otherwise interfere with the relationship of any
client or prospective client (including any person or entity that
was a client or prospective client of the Company at the time of

execution of this Operating Agreement[)].” (Doc. #31, Ex. 2, p.
24)(emphasis added). ‘Any’ means “one or some indiscriminately of
whatever kind.” Any, Merriam-Webster.com Dictionary,
https://www.merriam-webster.com/dictionary/any (last visited
Sept. 20, 2023).4 ‘Include’ means “[t]o contain as a part of

4 Courts may look at popular and legal dictionaries to
determine the ordinary meaning of a word. Spencer v. Specialty
something.” Include, Black’s Law Dictionary (11th ed. 2019).
Further, “[t]he participle including typically indicates a partial
list.” Id. (emphasis in the original). Altogether, it follows that
the non-solicitation clause applies to KOVA’s current and
prospective clients of whatever kind, and KOVA’s clients at the
time the agreement was executed are a part of that universe.

Sabin’s attempt to construe the word ‘including’ as
‘exclusively’ or ‘only’ conflicts with its commonly understood
meaning accepted by this Circuit and the Supreme Court. See Argosy
Ltd. v. Hennigan, 404 F.2d 14, 20 (5th Cir. 1968)5 (“The word
‘includes' is usually a term of enlargement, and not of
limitation.” (citing United States v. Gertz, 249 F.2d 662, 666
(9th Cir. 1957))); Samantar v. Yousuf, 560 U.S. 305, 317
(2010)(agreeing that “the use of the word ‘include’ can signal
that the list that follows is meant to be illustrative rather than
exhaustive.”); Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Text 132–33 (2012) (explaining that

“include does not ordinarily introduce an exhaustive list” but
“introduces examples”).

Foundry Prod. Inc., 953 F.3d 735, 740 (11th Cir. 2020).
5 “All decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981, are binding precedent
in the Eleventh Circuit.” United States v. Rolle, 65 F.4th 1273,
1276 n.2 (11th Cir. 2023).
Sabin’s position also conflicts with a basic concept of
contract construction. The “surplusage canon obliges us, whenever
possible, to disfavor an interpretation when that interpretation
would render a ‘clause, sentence, or word . . . superfluous, void,
or insignificant.’” In Re Shek, 947 F.3d 770, 777 (11th Cir.
2020)(alteration in original)(quoting TRW Inc. v. Andrews, 534

U.S. 19, 31 (2001)). Accepting “any client or prospective client
(including any person or entity that was a client or prospective
client of the Company at the time of execution of this Operating
Agreement[)]” (Doc. #31, Ex. 2, p. 24), to mean “only any client
or prospective client of Company at the time of execution of this
Operating Agreement” would require many words, including ‘any’, to
be ignored or be stripped of their effect. The surplusage canon
forbids such undertaking. Instead, the canon “require[s] to give
effect to ‘every word, phrase, sentence, and part of the
[contract], if possible, and words in a [contract] should not be
construed as mere surplusage.’” Heart of Adoptions, Inc. v. J.A.,

963 So. 2d 189, 198 (Fla. 2007)(quoting American Home Assur. Co.
v. Plaza Materials Corp., 908 So.2d 360, 366 (Fla.2005)). Giving
every word in the clause effect leads to the conclusion that the
non-solicitation clause applies to any of KOVA’s clients,
including those that existed when the agreement was executed.
Sabin argues that it was “the intention of the parties” to
limit the clients susceptible to the non-solicitation clause.
(Doc. #36, p. 8.) If the parties intended to limit non-solicitation
of clients to only those clients in existence when the agreement
was entered to, they could have formulated a contract reflecting
that fact. For example, the parties could have executed an
agreement that read the clause was ‘limited to’ clients in
existence at that time or ’solely’ to current clients. Instead,

the contract states that Sabin cannot solicit “any client or
prospective client” of KOVA, “including” KOVA’s clients that were
KOVA’s clients when the agreement was executed. (Doc. #31, Ex. 2,
p. 24.) The parties’ purposeful inclusion of the words ‘any’
followed by ‘including’ establishes their intent to provide an
illustrative subset of KOVA’s clients covered under the non-
solicitation clause instead of an exhaustive listing.
The Court finds that the non-solicitation clause, read as a
whole, unambiguously restricts Sabin from soliciting KOVA’s
clients (including those at the time the agreement was executed)
from when the parties separated (August 4, 2023) until one year

thereafter (August 4, 2024). Sabin’s argument to the contrary is
unpersuasive and unlikely to succeed.
ii. The restrictive covenants are valid
In Florida, “Section 542.335(1) permits ‘enforcement of
contracts that restrict or prohibit competition during or after
the term of restrictive covenants, so long as such contracts are
reasonable in time, area, and line of business.’” GFA Int'l, Inc.
v. Trillas, 327 So. 3d 872, 875 (Fla. 3d DCA 2021)(quoting Fla.
Stat. § 542.335(1)). The statute provides a non-exhaustive list of
“legitimate business interests” to include “[t]rade secrets,”6
“[v]aluable confidential business or professional information,”
“[s]ubstantial relationships with specific prospective or existing
customers, patients, or clients,” and “client goodwill.” Fla.

Stat. § 542.335(1)(b). In these situations, the statute also
provides that “any restraint 6 months or less in duration” is
reasonable in time, while “any restraint more than 2 years in
duration” is unreasonable. Id. § 542.335(1)(d)1. But ultimately,
“[w]hether a non-compete covenant is reasonable or overly broad is
a question of fact for the trial court.” Whitby v. Infinity Radio
Inc., 951 So.2d 890, 897 (Fla. 4th DCA 2007)
Sabin argues that there is no demonstration of substantial
relationships with specific clients as required by Fla. Stat. §
542.335(1)(b) because KOVA does not name any clients. (Doc. #36,
p. 9)(citing Vital Pharms., Inc. v. Alfieri, 23 F.4th 1282, 1291

6 Trade secrets is defined by the statute 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
(b) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
Fla. Stat. § 688.002(4).
(11th Cir. 2022)). KOVA has since named the clients (see Doc. #38,
Ex. 1) so the argument is now unpersuasive. In any event, it is
apparent that KOVA’s interests in enforcing a non-solicitation of
clients clause and protecting its confidential business
information fall squarely within a reasonable line of business
recognized by Florida statute. See Id. § 542.335(1)(b).

To satisfy the remaining two conditions, KOVA posits that
“the restrictive covenants contained in the Operating Agreement
are reasonable in time—one year—and area—two counties in Florida.”
(Doc. #31, p. 11.) The limitation on operating another real estate
brokerage firm is limited to as “long as a Class B Member owns an
Interest in [Kova],” while the non-solicitation of clients clause
expires “one (1) year thereafter . . . .” (Doc. #31, Ex. 2, p.
24.)
A sister court previously held that eighteen months is a
reasonable time and that limiting the covenants to the states where
that party conducted business was a reasonable area. See Lincare,

Inc. v. Tinklenberg, No. 8:20-CV-1002-T-02AAS, 2020 WL 10354020,
at *4 (M.D. Fla. June 26, 2020). The Court finds that twelve months
is reasonable. Additionally, a restrictive covenant limited to two
counties in one state is reasonable. But while the Court agrees
with KOVA that the operating agreement limits where Sabin can
operate a real estate brokerage firm to Collier and Lee Counties,
Florida, the non-solicitation of clients clause appears silent as
to any geographical limitation.
This silence, however, can easily be cured because “Section
542.335 commands courts to modify, or blue pencil, a non-
competition agreement that is ‘overbroad, overlong, or otherwise
not reasonably necessary to protect the legitimate business

interest,’ instructing courts to ‘grant only the relief reasonably
necessary to protect such interest.’” White v. Mederi Caretenders
Visiting Servs. of Se. Fla., LLC, 226 So. 3d 774, 785 (Fla.
2017)(quoting Fla. Stat. § 542.335(1)(c)). The Court will
therefore blue pencil the non-solicitation clause to limit it to
only Collier and Lee Counties, Florida. Sabin will not be permitted
to solicit any of KOVA’s current or prospective clients that seek
to or currently buy, sell, lease, or rent in Collier or Lee
Counties, Florida. This modification reflects KOVA’s
interpretation of the restrictive covenant and protects KOVA’s
legitimate business interest, as Florida’s legislature intended.

With this change, the restrictive covenants are now valid and
enforceable as they are reasonable as to time, area, and line of
business.
Having determined the restrictive covenants are valid, the
Court turns to the next element in a breach-of-contract claim—
breach. The record establishes solicitations by Sabin in violation
of the agreement. A declaration under penalty of perjury from Kim
Gaglia (Gaglia), a manager at KOVA, attests that “[s]ince Sabin
resigned, several KOVA clients have confirmed that Sabin has
continued to solicit business from them.” (Doc. #31, Ex. 3, ¶ 10.)
As a specific example, Gaglia recounts how she contacted Peacock
Properties of Naples, LLC only to be told “that Sabin had
instructed the client to send Sabin a letter stating that they

wanted Sabin to remain as its listing agent, and that they had
followed these instructions.” (Doc. #38, Ex. 1, ¶ 5.) Similarly,
Anthony L. Emma, Jr. (Emma), another manager at Kova, declared
under penalty of perjury that “several” KOVA clients have “informed
[him] or another member of KOVA senior leadership that Sabin has
reached out to them directly about his departure from KOVA, and
that he will be operating his own brokerage.” (Doc. #31, Ex. 1, ¶
50.)
Florida courts have recognized that “‘[t]he right to prohibit
the direct solicitation of existing customers' is a legitimate
business interest, and a covenant not to compete which includes a

non-solicitation clause is breached when a former employee
directly solicits customers of his former employer.” Atomic
Tattoos, LLC v. Morgan, 45 So.3d 63, 65 (Fla. 2d DCA 2010)(quoting
Dyer v. Pioneer Concepts, Inc., 667 So.2d 961, 964 (Fla. 2d DCA
1996)). Because the record establishes that Sabin has directly
solicited KOVA’s customers upon his departure from the firm, KOVA
has a high likelihood of proving a breach has occurred and of
succeeding on the merits. See Walsh v. Paw Trucking, Inc., 942 So.
2d 446, 448 (Fla. 2d DCA 2006)(“Evidence that an enforceable
covenant not to compete was breached will support a trial court's
finding of the likelihood of success on the merits.).
2. There is a substantial likelihood of irreparable injury
“[E]ven if Plaintiffs establish a likelihood of success on

the merits, the absence of a substantial likelihood of irreparable
injury would, standing alone, make preliminary injunctive relief
improper.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000).
“An injury is ‘irreparable’ only if it cannot be undone through
monetary remedies.” Ferrero v. Associated Materials Inc., 923 F.2d
1441, 1449 (11th Cir. 1991). Irreparable injury must be at least
likely—not just possible—in the absence of an injunction. Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); see also
Siegel, 234 F.3d at 1176 (“[T]he asserted irreparable injury ‘must
be neither remote nor speculative, but actual and imminent.’”
(quoting Northeastern Fla. Chapter of the Ass'n of Gen. Contractors

v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir.1990))).
Irreparable injuries have been established here as to the
solicitation of clients and the taking of confidential business
information.7 “Section 542.335(1)(j) [of the Florida statutes]

7 Sabin has not denied the existence of the allegedly taken
documents. To the contrary, he has indicated they are sequestered
until the litigation is resolved. (See Doc. #4, Ex. 2, ¶ 10.)
confers a presumption of irreparable injury where there is a
violation of a valid restrictive covenant.” Joseph Spine, P.A. v.
Moulton, 346 So. 3d 154, 158 (Fla. 2d DCA 2022).8 “[T]o benefit
from the presumption of irreparable injury, the party seeking to
enforce a covenant not to compete must show that the covenant
protects a legitimate business interest as defined by section

542.335(1)(b) and that the covenant was violated.” Walsh, 942 So.
2d at 448. The presumption of irreparable injury applies here since
the Court has found that the restrictive covenants protect KOVA’s
legitimate business interests and that the covenants have been
violated.
Apart from the presumption, it is well-established in this
Circuit that “the loss of customers and goodwill is an irreparable
injury.” Jysk Bed'N Linen v. Dutta-Roy, 810 F.3d 767, 780 (11th
Cir. 2015)(quoting BellSouth Telecomms., Inc. v. MCIMetro Access
Transmission Servs., LLC, 425 F.3d 964, 970 (11th Cir.2005));
Ferrero, 923 F.2d at 1449; see also Basicomputer Corp. v. Walker,

973 F.2d 507, 512 (6th Cir. 1992) (“The loss of customer goodwill
often amounts to irreparable injury because the damages flowing
from such losses are difficult to compute.”). The record shows
Sabin has already poached at least one of KOVA’s clients and

8 Federal courts sitting in diversity in Florida can apply
this presumption in preliminary injunction motions. TransUnion
Risk & Alternative Data Sols., Inc. v. MacLachlan, 625 F. App'x
403, 406 (11th Cir. 2015)(per curiam).
solicited many more. KOVA has established it is suffering an
irreparable injury, satisfying this requisite for a preliminary
injunction.
3. No substantial harm to Sabin
In analyzing any potential harm to the non-movant, the Court
“must balance the competing claims of injury and must consider the

effect on each party of the granting or withholding of the
requested relief.” Winter, 555 U.S. 7 at 24 (quoting Amoco
Production Co. v. Gambell, 480 U.S. 531, 542 (1987)). In Larweth
v. Magellan Health, Inc., the Eleventh Circuit affirmed a district
court’s finding that the balancing of harms tipped in the movant’s
favor when the record showed that the opposing party “us[ed] the
contacts and information [he] gained during his employment with
[the movant] to obtain contracts with [movant]’s clients.” Id.,
841 F. App'x 146, 159 (11th Cir. 2021).
Here, the record shows that KOVA has suffered an irreparable
injury and the balance of interests between the parties tips in

KOVA’s favor. Sabin’s income will undoubtedly be negatively
affected by the injunction, as his pool of potential clients will
be limited. But this harm does not outweigh KOVA’s harm, since
Sabin will still be able to solicit other clients — just not KOVA’s
clients. See Tinklenberg, 2020 WL 10354020 at *6 (finding
enforcement of non-compete clause to outweigh the limitation on
non-movant’s earnings potential); New Horizons Computer Learning
Centers, Inc. v. Silicon Valley Training Partners, Inc., No.
2:02CV459FTM29SPC, 2003 WL 23654790, at *7 (M.D. Fla. Nov. 12,
2003)(same); Bos. Sci. Corp. v. Ruiz, No. 05-21270-CIV, 2005 WL
8154995, at *6 (S.D. Fla. May 17, 2005)(same).
4. Public Interest favors issuance of a preliminary
injunction
For two reasons, the public interest is best served if an
injunction is issued. First, the Eleventh Circuit has recognized
that “‘the public interest calls for the[ ] enforcement’ of valid
restrictive covenants.” Larweth, 841 F. App'x at 159)(alteration
in original)(quoting N.I.S. Corp. v. Swindle, 724 F.2d 707, 710
(8th Cir. 1984)). Likewise, “[p]ublic policy in Florida favors
enforcement of reasonable covenants not to compete.” Quirch Foods

LLC v. Broce, 314 So. 3d 327, 343 (Fla. 3d DCA 2020)(quoting
Winmark Corp. v. Brenoby Sports, Inc., 32 F. Supp. 3d 1206, 1224
(S.D. Fla. 2014). Having already determined that the restrictive
covenants here appear valid, it is in the public’s interest to
enforce them.
Second, Fla. Stat. 542.335(1)(j) instructs courts to “enforce
a restrictive covenant by any appropriate and effective remedy,
including, but not limited to, temporary and permanent
injunctions.” Id. It can be said then, that “[t]his balancing of
the public interest has already been performed by the [Florida]
legislature when it presumed that injunctive relief is [an]
appropriate remedy for a violation of this type of covenant.”
Ferrero, 923 F.2d at 1449. In any event, the Court finds that the
public interest favors a preliminary injunction.
5. Miscellaneous terms of the preliminary injunction
A preliminary injunction will be issued in a separate document
setting forth its specific terms. See Fed. R. Civ. P. 65(d)(1)(B).

Such a preliminary injunction may not be viable for a period longer
than the expiration of the restrictive covenants. See Larweth, 841
F. App'x at 159–60. Here, the agreement between Sabin and KOVA
provided that the restrictive covenants would last for one year
following Sabin’s separation, which was on August 4, 2023. The
preliminary injunction will thus expire on August 4, 2024, absent
further order from this Court.
Rule 65(c) also provides that “[t]he court may issue a
preliminary injunction . . . only if the movant gives security in
an amount that the court considers proper to pay the costs and
damages sustained by any party found to have been wrongfully

enjoined or restrained.” Fed. R. Civ. P. 65(c). “[I]t it is well-
established that ‘the amount of security required by the rule is
a matter within the discretion of the trial court . . . [, and]
the court may elect to require no security at all.” BellSouth
Telecommunications, Inc., 425 F.3d at 971 (alteration in original)
(quoting City of Atlanta v. Metro. Atlanta Rapid Transit Auth.,
636 F.2d 1084, 1094 (5th Cir. Unit B 1981)).
KOVA argues that “no bond should be required” because of its
“high likelihood of success on the merits” and “minimum potential
harm to the defendant.” (Doc. #31, p. 24-25.) Sabin counters that
“any entry of an injunction should be premised upon the posting of
a bond no less than $150,000.” (Doc. #36, p. 18.) The Court rejects
both arguments. The Court considers Tinklenberg, 2020 WL 10354020

(M.D. Fla. June 26, 2020), to offer more apt guidance. There the
court found the defendant’s annual base salary of two-hundred-
fifty thousand dollars ($250,000.00) to be an appropriate basis
upon which to set bond. See id., 2020 WL 10354020 at *7; see also
Lincare, Inc. v. Markovic, No. 8:22-CV-918-MSS-TGW, 2023 WL
2329207, at *2 (M.D. Fla. Jan. 11, 2023)(setting bond at one year
of the defendant's salary). Here, Sabin asserted in one of his
emails that his “normal services” earned him “north of $90k a year
. . . .” (Doc. #31, Ex. 9., p. 2.) This assertion has not been
disputed by KOVA. The Court is satisfied with that amount as an
appropriate bond. KOVA must post a ninety-thousand-dollar

($90,000.00) cash or surety bond to trigger the preliminary
injunction.
B. Sabin’s motion to amend
At the eleventh hour, Sabin has filed a motion to amend or
supplement his response in light of KOVA’s reply. Sabin argues
that his requested relief is warranted since KOVA’s reply includes
new declarations and he “should be provided the opportunity to
amend his response in opposition to both address the legal
sufficiency of the newly filed declarations/documents and rebut
the specific allegations by counter declaration(s)/documentation.”
(Doc. #39, ¶ 6.) KOVA counters that Sabin’s motion is “essentially
[requesting] a sur-reply [that] would serve as an unnecessary
‘second bite at the apple’ for Defendant and would only delay the

necessary immediate relief KOVA seeks.” (Doc. #41, p. 2.) Because
the Court agrees with KOVA, Sabin’s motion will be construed as a
motion for leave to file a sur-reply and is denied.
A district court's decision to permit the filing of a sur-
reply is purely discretionary and should generally only be allowed
when “a valid reason for such additional briefing exists, such as
where the movant raises new arguments in its reply brief.” Fedrick
v. Mercedes–Benz USA, LLC, 366 F.Supp.2d 1190, 1197 (N.D. Ga.
2005). “However, there exists a subtle yet noteworthy distinction
between ‘new arguments and evidence, on the one hand, and rebuttal
arguments and evidence, on the other.’ While raising new arguments

on reply is generally inappropriate, reply evidence ‘may contain
facts not previously mentioned in the opening brief, as long as
the facts rebut elements of the opposition memorandum and do not
raise wholly new factual issues.’” Lage v. Ocwen Loan Servicing
LLC, 145 F. Supp. 3d 1172, 1181 (S.D. Fla. 2015), aff'd, 839 F.3d
1003 (11th Cir. 2016) (quoting Giglio Sub s.n.c. v. Carnival Corp.,
No. 12–21680–CIV, 2012 WL 4477504, at *2 (S.D.Fla. Sept. 26, 2012)
aff'd, 523 Fed.Appx. 651 (11th Cir.2013)).
Leave to file a sur-reply is denied because KOVA’s Reply
appropriately offers rebuttal arguments and evidence, which Sabin
previously had ample opportunity to contest, and as a result no
valid reason exists for additional briefing that would further

delay consideration of the relief KOVA seeks. From KOVA’s very
first motion for temporary restraining order (Doc. #6) over a month
ago, declarations have been attached alleging Sabin contacted a
KOVA client, instructed the client to draft a letter stating they
wanted Sabin to remain as their agent, and the client did so. (Doc.
#6, Ex. 1, ¶¶ 43-44.) Sabin never disputed those factual
allegations in his Response in Opposition (see Doc. #36) or in any
other papers. The Court now only relies on KOVA’s Reply (and its
accompanying declarations) to the extent the documents allege the
same facts, but now identify the KOVA client as Peacock Properties
of Naples, LLC. (See Doc. #38, Ex. 1, ¶¶ 4-5.)

KOVA offers this declaration as rebuttal evidence to Sabin’s
opposition papers arguing that KOVA must name the affected clients.
(See Doc. #36, p. 9.) Thus, KOVA’s Reply is permissible and does
not entitle Sabin to a sur-reply. See Lage, 145 F. Supp. 3d at
1181. As Sabin concedes, his argument is otherwise moot since the
Court does not consider KOVA’s reply further. (See Doc. #39, p. 4
n. 4)(“Defendant recognizes that the relief requested herein would
be mooted in the event the Court declines to consider the documents
filed by Plaintiff on September 26, 2023.”).
Lastly, Sabin argues that he should be afforded a sur-reply
“to both address the legal sufficiency of the newly filed
declarations/documents and rebut the specific allegations by
counter declaration(s)/documentation.” (Doc. #39, ¶ 6.) As

illustrated above, the facts asserted in the declarations are not
new. The declaration in KOVA’s Reply which is considered by the
Court is almost a verbatim replica of the original declaration
offered by KOVA in this present motion. (Compare Doc. #38, Ex. 1,
with Doc. #31, Ex. 3.) They are declarations offered by the same
person, in the same format, and with largely the same pertinent
language except that “client” was replaced with “Peacock
Properties of Naples, LLC.” Id. Sabin has had ample opportunity
to contest the alleged facts and attack the legal sufficiency of
the declarations. He opted not to do so in his nineteen-page
response in opposition or otherwise. The Court declines to allow

him to do so now.
Accordingly, it is hereby
ORDERED:
1. Defendant’s Motion for Leave to Amend Response to Motion
for Preliminary Injunction (Doc. #39) is DENIED.
2. Plaintiff's Third Motion for Temporary Restraining Order
and First Motion for a Preliminary Injunction (Doc. #31)
is DENIED AS MOOT as to the Temporary Restraining Order
and otherwise GRANTED as to the Preliminary Injunction.
3. As will be set forth in a separate Preliminary Injunction,
Defendant Todd Sabin, and all officers, agents, servants,
employees, and attorneys, and other persons who are in
active concert or participation with Defendant within the

meaning of Federal Rule of Civil Procedure 65(c)(2), and
who receive proper notice of the preliminary injunction,
are hereby:
a. ordered, under penalty of contempt, to deliver to KOVA
all sequestered documents and any other documents or
files taken or emitted from KOVA’s office from May
11, 2023 to August 4, 2023 be they originals, copies,
or any other reproductions, in any form whatsoever
without delay once KOVA posts bond.
b. restrained and enjoined, under penalty of contempt,
from the following from the time the bond is posted:

i. directly or indirectly using, permitting to be
used, disclosing, or transmitting for any
purpose any of KOVA’s confidential or trade
secret information;
ii. communicating with or otherwise soliciting,
either directly or indirectly, or accepting
business from, or otherwise interfering with any
of KOVA’s current clients or prospective clients
or tenants listed in KOVA’s forms or documents,
or soliciting KOVA’s employees, or agents, in
Collier or Lee County, Florida.
4, Plaintiff shall post a ninety-thousand-dollar ($90,000.00)
cash or surety bond with the Clerk of the Court.
5. The injunction shall continue in force and effect until
August 4, 2024 absent further order from the Court.
DONE and ORDERED at Fort Myers, Florida, this Ath day of
October, 2023.

Not & AKL.
JGHE E. STEELE
Sq IOR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10114140. Public record. Not legal advice.