Foose

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

Case No. 5:25-CV-00782-M-BM

AWP, INC., et al.,

Plaintiffs,

V. ORDER

JEFFREY FOOSE, et al.,

Defendants.

This matter comes before the court on A WP, Inc. (“A WP”) and Stay Alert Safety

Services, LLC’s (“Stay Alert’) (collectively, “Plaintiffs”) Motion for Preliminary Injunction [DE

6]. They move to enjoin their former employee, Jeffrey Foose, from violating non-compete

and non-solicitation clauses in his employment contract.! Because Plaintiffs have not clearly

demonstrated that Foose likely violated the terms of those provisions, the motion is denied.

I. Background

Unless otherwise noted, the following facts appear to be undisputed. Plaintiffs are

corporations who provide municipalities, utility companies, and private contractors with traffic

control equipment and control services. DE 7-1 at § 3. Stay Alert is a wholly owned subsidiary

of A WP, and together, they maintain offices throughout the United States and Canada and

provide services to customers in both countries. DE | at 9] 12-13; DE 13 at 12-13.

' Plaintiffs also brought claims against Foose and his current employer Traffic Plan for

alleged violations of North Carolina tort law, but those claims are not relevant to the pending

motion.

In 2017, Foose was hired by Stay Alert as Vice President of Operations. DE 14-2 at □ 5.

On September 27, 2024, after AWP had purchased Stay Alert, Foose executed a “Confidentiality,

Non-Competition, and Non-Solicitation Agreement” (“the Agreement”) from his home in

Alabama. DE 1 at 27; DE 13 at § 27; see also DE 1-1. Plaintiffs assert that this contract was

executed in consideration for Foose’s promotion to Senior Director of Business Development. DE

7 at 3. Foose, by contrast, states that he was never promoted; instead, he characterizes the contract

as being incidental to AWP’s acquisition of Stay Alert. See DE 14 at 9-10. Either way, the

Agreement included several restrictive covenants—three of which are relevant here. See DE 1-1

at 1(c)-(e). The “Non-Compete” cause reads:

Employee covenants and agrees that during Employee’s employment and for a

period of twelve (12) months following the conclusions of Employee’s employment

for whatever reason, or following the date of cessation of the last violation of this

Agreement, or from the date of entry by a court of competent jurisdiction of a final,

unappealable judgment enforcing this covenant, whichever of the foregoing is the

last to occur... Employee will not, as principal, or in conjunction with any other

person, firm, partnership, corporation or other form of business organization or

arrangement . . . directly or indirectly, be employed by, provide services to, in any

way be connected, associated or have any interest of any kind in, or give advice or

consultation to any Competitive Business within a 120-mile driving distance from

Employee’s regularly assigned place of duty or office.

Id. at J l(c). The “Non-Solicitation of Employees” clause reads:

Employee covenants and agrees that, during the Restricted Period,? Employee shall

not, without the prior written permission of AWP, directly or indirectly (i) solicit,

employ or retain, or have or deliberately cause any other person or entity to solicit,

employ or retain, any person who is employed or is providing services to AWP at

the time of Employee’s termination of employment or was or is providing such

services within the twelve (12) month period before or after Employee’s

termination of employment or (il) request, suggest or deliberately cause any

* The Restricted Period is defined by the Agreement as “a period of twelve (12) months

following the conclusion of Employee’s employment for whatever reason, or following the date

of cessation of the last violation of this Agreement, or from the date of entry by a court of

competent jurisdiction of a final, unappealable judgment enforcing this covenant, whichever of the

foregoing is the last to occur[.]” DE 1-1 at ¥ 1(c).

employee of AWP to breach or threaten to breach terms of said employee’s

agreements with AWP or to terminate his or her employment with AWP.

Id. at J 1(d). The “Non-Solicitation of Clients and Customers” clause similarly reads:

Employee covenants and agrees that, during the Restricted Period, Employee will

not, as principal, or in conjunction with any other person, firm, partnership,

corporation or other form of business organization or arrangement . . ., directly or

indirectly: (i) solicit or accept any business, in competition with AWP, from any

person or entity who was an existing or prospective customer or client of AWP at

the time of, or at the time during the twelve (12) months preceding, Employee’s

termination of employment; or (ii) request, suggest or deliberately cause any of

AWP’s clients or customers to cancel, reduce, change the terms of or terminate any

business relationship with AWP involving services or activities which were directly

or indirectly the responsibility of Employee during Employee’s employment.

Id. at § 1(e). The Agreement additionally provides that it “shall be governed, construed,

performed[,] and enforced in accordance with . . . the laws of the State of Ohio, without reference

to principles of conflicts of laws.” Jd. at § 2(b).

The scope of Foose’s role at AWP is heavily disputed. AWP maintains that “Foose was

responsible for growing and expanding AWP’s heavy highway traffic control work in the

southeast,” and that by virtue of his position, he had access to confidential information, including

details of AWP’s revenue and margins, its operational capabilities, and its strategies for growth.

DE 19 at 2-3. Foose describes his role in a very different light. He asserts that he “was not

responsible for sales, customer solicitation, or generating revenue,” and that, in fact, he “was

specifically instructed not to pursue customers.” DE 14 at 4. As a result, he states that he “was

not provided access to AWP’s customer relationship management system (“CRM”), bidding

software, pricing databases, or other confidential operational systems.” /d. The parties agree that

Foose voluntarily resigned from his employment with AWP in April or May of 2025.> DE 7 at 5;

DE 14 at 5. Thereafter, he commenced employment with Traffic Plan. DE 7 at 6; DE 14 at 5.

In the ensuing months, fourteen of AWP’s other employees resigned and began working

for Traffic Plan. DE 7 at 9. The parties’ briefing focuses on two: Adam Lohr and Benjamin

Barefoot. Prior to his departure, Lohr was a Branch Operations Manager in Raleigh, North

Carolina. DE 7 at 8; DE 14-6 at § 4. In June 2025, Lohr informed AWP that he was considering

leaving the company, and shortly thereafter, he attended a meeting concerning the same with James

Babcock and Wade Lackey. DE 7 at 7; DE 14 at 6. The parties disagree on what was

communicated at that meeting, but afterwards, AWP came to believe that Foose had directly

contacted Lohr and encouraged him to accept employment with Traffic Plan. DE 7 at 7; DE 7-3

at § 14. On July 29, 2025, Lohr informed AWP that he would resign. DE 7 at 9; DE 14-6 at ¥ 15.

The following day, Barefoot, Stay Alert’s Project Manager in Raleigh and Lohr’s “second-in-

command,” also gave a resignation notice. DE 7 at 7; DE 14-7 at 4 9

In August 2025, after both men had left the company, AWP discovered emails showing

that they had both been in communication with Traffic Plan prior to their resignation. DE 7-3 at

420. One email, titled “Employment Agreement Adam Lohr,” was sent to Lohr on July 17, 2025,

by Jessica Carriero, an employee of Traffic Plan. See DE 7-3 at 8. It had attached an offer of

employment for the position of “Operations Manager—North Carolina.” /d. at 8,19. Inasecond

chain of emails, all of which were sent on July 21, 2025, an employee from Traffic Plan sought

> Plaintiffs state that Foose resigned by email on April 25, 2025, shortly after receiving an

annual bonus. DE 7 at 5; see also Latta Decl. DE 7-1 at § 23. Foose states that he resigned on

May 5, 2025, which was the last day of his employment. DE 14 at 5; see also Foose Decl. 14-2 at

429. Though the parties do not discuss this discrepancy, it may potentially be resolved if Foose

gave notice of his resignation on April 25 but continued to work until May 5. Ultimately, none of

this affects the pending motion. The court makes note only for clarity.

information about the price of “arrow boards.” /d. at 24-26. Originally, he sent an email to Foose

and Tony Collins, a General Manager at Traffic Plan. /d. at 26; see also DE 14-3. Foose directed

the employee to inform Barefoot of the cost difference, and ultimately, Barefoot responded by

opining on which type of arrow board Traffic Plan should purchase. DE 7-3 at 24-25. In

Barefoot’s reply, he copied Lohr using his Stay Alert email address. /d.

On December 2, 2025, Plaintiffs filed the instant three-count lawsuit for breach of contract

and tortious interference. See DE 1. Shortly thereafter, they moved for a preliminary injunction

pursuant to Federal Rule of Civil Procedure 65(a). See DE 6. Foose filed a response in opposition,

see DE 14, to which Plaintiffs filed a reply. See DE 19. In this posture, the motion is ripe for

review.

II. Legal Standards

A preliminary injunction “is an extraordinary remedy” that is “never awarded as of right.”

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain a preliminary injunction,

a plaintiff must establish that (1) “he is likely to succeed on the merits,” (2) “he is likely to suffer

irreparable harm in the absence of preliminary relief,” (3) “the balance of equities tip in his favor,”

and (4) “an injunction is in the public interest.” /d. at 20. “({E]ach of these four factors must be

satisfied to obtain preliminary injunctive relief,” Henderson ex rel. NLRB v. Bluefield Hosp. Co.,

LLC, 902 F.3d 432, 439 (4th Cir. 2018), and “a district court is entitled to deny preliminary

injunctive relief on the failure of any single Winter factor, without fully evaluating the remaining

factors.” Vitkus v. Blinken, 79 F.4th 352, 361 (4th Cir. 2023).

III. Discussion

Plaintiffs seek a preliminary injunction against Foose in relation to their breach of contract

claim. In that claim, they allege that Foose has violated the terms of the Agreement by (1)

recruiting Plaintiffs’ employees to work for Traffic Plan; (2) soliciting Plaintiffs’ customers and

causing them to terminate their relationship with Plaintiffs; and (3) competing with Plaintiffs

within 120-miles “restricted geographic territory." DE 1 at § 54. They seek an injunction

enjoining Foose from continuing to engage in those activities. DE 7 at 1,21. They also seek a

declaration restarting the one-year Restricted Period from the date on which the requested order is

issued. Jd. at 22-33.

As a threshold matter, the parties disagree on which state’s substantive law should govern

this dispute and, the answer to that question notwithstanding, whether the Agreement is even

enforceable. Plaintiffs argue that the Agreement should be governed by Ohio law, in accordance

with the choice of law provisions in the contract. DE 7 at 11. They argue that the restrictive

covenants contained within the Agreement are “reasonably necessary to protect [their] legitimate

business interests” and that the “temporal and geographic restrictions” are reasonably tailored to

the case at hand. /d. at 15-16. Defendants, by contrast, argue that Alabama law should control

because “Ohio has no substantial relationship to the contract at issue[,]” while Alabama has a

* Notably, Plaintiffs have taken inconsistent positions on whether Foose’s employment

with Traffic Plan necessarily violates the non-compete clause. Compare DE 1 at 4 54 (“Foose

breached and continues to breach his obligations under the Agreement by [a]ccepting employment

with Traffic Plan, a direct competitor of Plaintiffs, within the 120-mile restricted geographic

territory|.]”), with DE 7 at 21 (‘Foose is free to continue his employment with Traffic Plan as long

as he refrains from unfair competition by soliciting the customers and employees of AWP and its

subsidiaries, refrains from competing within 120 miles of his former seven-state territory, and

refrains from using confidential information.”). It is clear from the briefing that the alleged

soliciting is at the root of Plaintiffs’ concern and that, as a result, they seek an order reimposing

the terms of the agreement for another year. Aside from that, it is unclear precisely what behavior

Plaintiffs want the court to enjoin in relation to the non-compete clause. Ultimately, Plaintiffs

carry the burden of demonstrating “both whether preliminary injunctive relief should be granted

and what type of relief should be ordered.” See Pargas, Inc. v. Empire Gas Corp., 423 F. Supp.

199, 246 (D. Md. 1976); see also Winter, 555 U.S. at 20. Accordingly, this order (in accordance

with the parties’ briefing) focuses primarily on the evidence that Foose engaged in unlawful

soliciting.

“fundamental public policy” that its more stringent regulations on trade restrictions should be

enforced. DE 14 at 16-17; see also Ala. Code § 8-1-197 (“Therefore, this article shall govern and

shall be applied instead of any foreign laws that might otherwise be applicable in those instances

when the application of those foreign laws would violate a fundamental public policy expressed

in this article.”). Defendants argue that under these regulations, the restrictive covenants are void

and unenforceable because (1) Foose signed the Agreement prior to commencing his employment

with AWP;? (2) a representative of AWP did not sign the same;° (3) Plaintiffs do not have a “valid

protectable interest permitting enforcement” of the non-compete clause; (4) the non-compete

clause imposes an “undue hardship” on Foose; and (5) Foose did not hold a “uniquely essential”

role at AWP.’ /d. at 21-26. Alternatively, Defendants argue that the Agreement is unenforceable

under Ohio law. /d. at 27-30.

> Alabama law treats contracts restraining an individual “from exercising a lawful

profession, trade, or business of any kind” as void unless they fit within one of six enumerated

exceptions. See Ala. Code. § 8-1-190(a)-(b). The Alabama Supreme Court, in interpreting a

similar but now-repealed version of that statute, held that “[t]he employee-employer exception to

the voidness of noncompete agreements does not save a noncompete agreement unless the

employee-employer relationship exists at the time the agreement is executed.” Pitney Bowes, Inc.

v. Berney Off. Sol., 823 So.2d 659, 662 (Ala. 2001). Alabama courts have not explicitly held that

that rule continues to govern today, but the logic of Pitney Bowes appears to apply with the same

force to the now-governing statute. Under the repealed statute, individuals who were “employed

as an agent, servant|,] or employee” were permitted to agree with their “employer” that they would

not compete with said employer or otherwise solicit is customers and employees. See Ala. Code.

§ 8-1-1 (repealed 2015). The Alabama Supreme Court interpreted that statute as requiring a current

employee-employer relationship “at the time the agreement is executed.” Pitney Bowes, 823 So.2d

at 662. The new statute similarly permits “[a]n agent, servant or employee of acommercial entity”

to “agree with such entity” that they will refrain from competing or soliciting customers, subject

to reasonable geographic and time restrains. See Ala. Code. § 8-1-190(b)(4)-(5). Because the

new statute also requires that a party to a contract presently be an “agent, servant, or employee,”

or the associated “entity,” Pitney Bowes’ logic likely carries over and continues to apply.

® Under Ala. Code § 8-1-192, contracts that restrict an individual restrictive covenants on

trade must be “reduced to writing, signed by all parties, and supported by adequate consideration.”

7 Under Ala. Code. § 8-1-190(b)(1), contracts “between two or more persons or businesses

or a person and a business limiting their ability to hire or employ the agent, servant, or employees

It is not necessary to answer these questions to determine whether a preliminary injunction

is warranted. Regardless of whether Ohio or Alabama law is applied, and assuming for the sake

of argument that the Agreement is valid and enforceable, Plaintiffs would have to prove that Foose

likely violated the terms of the Agreement. See Dupree v. PeoplesSouth Bank, 308 So.3d 484, 490

(Ala. 2020) (“The elements of a breach-of-contract claim under Alabama law are (1) a valid

contract binding the parties; (2) the plaintiffs’ performance under the contract; (3) the defendant’s

nonperformance; and (4) resulting damages.”’) (citations and quotations omitted); Lucarell v.

Nationwide Mut. Ins. Co., 97 N.E.3d 458, 469 (Ohio 2018) (“A cause of action for breach of

contract requires the claimant to establish the existence of a contract, the failure without legal

excuse of the other party for performance when performance is due, and damages or loss resulting

from the breach.”’). From the evidence presented thus far, Plaintiffs have not met that burden.

Plaintiffs argue that Foose violated the terms of the Agreement in three ways: first, by

soliciting Lohr to accept employment with Traffic Plan; second, by soliciting an AWP client, C.R.

Jackson, Inc.; and third, by “overseeing Traffic Plan’s efforts to establish business operations in

North Carolina.” DE 7 at 18. The court addresses allegation in turn.

A. Atleged Solicitation of Employees

First, Plaintiffs argue that Foose violated the Non-Solicitation of Employees clause by

recruiting Lohr to work for Traffic Plan. /d In support of this contention, they submit two

declarations from Babcock. See DE 7-3, 19-2. Babcock states that on June 26, 2025, he and

Lackey had an in-person meeting with Lohr. DE 7-3 at § 14. At that meeting, Lohr reportedly

“informed [them] that Foose was soliciting [him] to work for Traffic Plan and that Lohr was

of a party to the contract” if the “agent, servant, or employee holds a position uniquely essential to

the management, organization, or service of the business.”

considering resigning from Stay Alert to accept” that offer. Jd Regarding Foose’s involvement,

Babcock states that Lohr said he had attended two virtual conferences with Foose and Collins

regarding an employment offer. DE 19-2 at 4 10. Babcock also states that by the end of the

meeting, Lohr decided, after brief consolation with his wife, that he would remain employed at

Stay Alert” and that, the following day, “Stay Alert increased his compensation.”® DE 7-3 at □ 15;

DE 19-2 at 4 11.

Lohr denies all of this. In his telling, the meeting in question was “confrontational,”

“uncomfortable,” and “hostile,” and he felt as if Babcock and Lackey were “attempt[ing] to

pressure [him] into staying” with Stay Alert. DE 14-6at 99 11, 13. More importantly, he states

that he explained to Babcock that “Tony Collins . . . had approached [him] regarding an

employment opportunity.” /d. at 9 (emphasis added). Lohr denies that Foose ever attempted to

persuade him to work for Traffic Plan. /d. at { 10 (“I did not tell Mr. Babcock or Mr. Lackey that

Jeffrey Foose (“Mr. Foose”) solicited me. That is because Mr. Foose did not solicit me. Mr.

Collins did.”). Moreover, he states that at the conclusion of the meeting, he had not yet made up

his mind about staying with the company and told Babcock and Lackey that he “needed time to

think[.]” /d. at 13.

Lohr’s description is corroborated by declarations submitted by Foose and Collins. Foose

states that he “never solicited Adam Lohr... Benjamin Barefoot... or any other AWP or Stay

Alert employee to leave their employment or join Traffic Plan.” DE 14-2 at { 44. Rather, he

testifies that he “only met Mr. Lohr one time, approximately three .. . to four... years ago” and

8 Babcock’s statement concerning compensation is corroborated by an email and a

screenshot of four text messages. In the email, which was sent the day after the meeting, Babcock

informs Lohr that “‘[e]ffective the next pay period,” his salary would “be adjusted to $110,000

annually.” DE 19-2 at 6. In the text messages, Babcock texts Lohr to inform him that he had sent

the “confirmation email.” /d. at 7.

that it was Collins who encouraged him to accept an employment offer from Traffic Plan. /d. at

{4 45-46. Collins agrees. He states that Lohr is “a close, personal friend” whom he met

approximately fifteen years ago when Lohr was in high school. DE 14-3 at § 27. He further states

that he “decided to approach Mr. Lohr” about joining Traffic Plan because of the pair’s

“longstanding professional relationship and [Collins’] direct personal knowledge of [Lohr’s]

abilities.” /d. at § 28. Regarding that decision, he specifies as follows:

Mr. Lohr came to a gathering at my home and told me his boss at AWP had left to

work for a competitor, although he informed AWP that he was leaving due to

personal family issues. That same competitor offered Mr. Lohr a position in their

Greensboro office. After Mr. Lohr eventually turned this position down, they hired

Mr. Pratt. I then told Mr. Lohr that I was putting together a team and asked if he

would consider working for Traffic Plan. Mr. Lohr initially declined my offer.

Approximately two weeks later, he contacted me expressing renewed interest,

accepted my offer of employment, and mentioned another potential candidate,

Benjamin Barefoot (“Mr. Barefoot’).

Id. at §§ 29-31. Collins explicitly states that “Foose had nothing to do with” his decision to hire

Lohr. /d. at § 28.

These declarations present starkly contrasting versions of what was said at the June 26

meeting and the extent to which (if at all) Foose was involved in Lohr’s decision to accept

employment with Traffic Plan. The remaining evidence does not provide much clarity.

First, Plaintiffs rely on the chain of emails in which Foose, Collins, and Barefoot discussed

the purchase of traffic control equipment. See DE 7 at 8. Plaintiffs assert that “this email revealed

that... Foose was . . . spearheading Traffic Plan’s efforts to enter the North Carolina market in

direct competition with AWP and Stay Alert” and that it also revealed “that Foose convinced Stay

Alert employees to assist in these efforts while the employees were still employed and being paid

by Stay Alert.” /d It is unclear how the email chain supports these propositions. Foose’s

participation in those emails was minor. He and Collins were asked a question about two different

types of traffic control equipment. See DE 7-3 at 26. Foose responded by directing the Traffic

10

Plan employee to contact Barefoot. /d. at 25. Plaintiffs emphasize the fact that Barefoot was still

an employee of Stay Alert at the time the emails were sent. DE 7 at 8. That is, of course, true,

and it supports the conclusion that Foose was at least aware that Barefoot was planning on

resigning from Stay Alert. But nothing in the email chain suggests that Foose was the person who

caused him to make that decision, much less that he was “spearheading” an effort to compete with

Plaintiffs in North Carolina and steal their employees. See id.

Second, Plaintiffs submit declarations from Macio Dreher and Gabriel Richards,

employees of Stay Alert who allege that on November 4, 2025, they were approached by a Traffic

Plan employee named Lisbon Nimmons. See DE 7-7 at 2-3, 5. Dreher states that Nimmons

approached them in ‘“‘a white Ford pickup truck with “Traffic Plan’ emblazoned on the side” and

told him that ‘Jeff from Stay Alert’ was running a new company named Traffic Plan and. . .

would pay [Dreher] $22.00 an hour to come work for him at his new company.” Jd. at §§ 4, 6.

Both Dreher and Richards state that they were asked to send text messages to their manager

explaining what had occurred. DE 19-3 at § 13; DE 19-4 at 9.11. Plaintiffs attach screenshots of

those text messages. See DE 19-3 at 4; DE 19-4 at 3. In the message sent by Dreher, he described

a verbal confrontation between Richards and Nimmons and then advises that Nimmons told him

that “Jeff from [S]tay [A]lert” would offer him $22 an hour to work at “that new company.” DE

19-3 at 4. In the message sent by Richards, he does not mention this offer at all; he only describes

the verbal confrontation. DE 19-4 at 3. Nimmons contends that this “is a lie.” DE 14-5 at □ 17.

He states that he never told anybody that “Foose was running Traffic Plan operations or that he

was involved in soliciting business.” /d. at § 14. Regarding what was said during the alleged

conversation, Nimmons states that Dreher asked him “whether Mr. Foose was ‘back’” and that he

responded that he “had not seen Mr. Foose in a long time and that Mr. Collins was the general

11

manager.” /d. at § 16. The declarations and screenshots are probative, but they are hearsay and

are directly contradicted by both Nimmons (the alleged speaker) and Foose (the person the alleged

speaker was referring to). In any event, they have no direct bearing on whether Foose solicited

Lohr, which is the alleged violation underlying this portion of the motion. Thus, they do not

meaningfully advance Plaintiffs’ claim.

After considering all of this, the court finds that Plaintiffs have not shown that Foose likely

violated the Non-Solicitation of Employees clause. The vast majority of Plaintiffs’ evidence

consists of declarations by Stay Alert employees describing what they heard from other people.

Those other people have each submitted declarations unanimously denying that they made any of

the alleged statements. The remaining evidence is circumstantial and, at best, only mildly

probative. Of course, one-sided declarations and circumstantial evidence can, under the right

circumstances, be sufficient to justify a preliminary injunction. See, e.g., Carlson Env't

Consultants, PC v. Slayton, No. 3:17-cv-00149-FDW-DCK, 2017 WL 4225993, at *9-10

(W.D.N.C. Sep. 21, 2017) (issuing a preliminary injunction on a non-solicitation claim where the

plaintiff had made a “clear showing” through “circumstantial evidence” that the defendant was

soliciting the plaintiffs customers and employees). In this case, however, “the record is far from

clear[,]” and factual disputes continue to exist that require “subsequent discovery in order to get

to the bottom of what is going on.” See Torres Advanced Enter. Sols. LLC v. Mid-Atlantic Pros.

Inc., No. PWG-12-3679, 2013 WL 531215, at *4 (D. Md. Feb. 8, 2013). In breach of contract

cases, courts within the Fourth Circuit have consistently “declined to issue a preliminary injunction

when there are significant factual disputes” in the record. Cytlmmune Sci., Inc. v. Paciotti, No.

PWG-16-1010, 2016 WL 3218726, at *2 (D. Md. June 10, 2016) (quotations omitted); Ramsey v.

Bimbo Foods Bakeries Distrib., Inc., No. No. 5:14-CV-26-BR, 2014 WL 3408585, at *8 (E.D.N.C.

12

July 10, 2014) (“Because there is a factual dispute as to whether plaintiff breached the Distribution

Agreement thereby entitling defendant to terminate it, plaintiff has not clearly shown that he will

likely succeed on the merits of his breach of contract claim.”); Torres Advanced Enter. Sols. LLC,

2013 WL 531215, at *3 (“In the present case, the record highlights multiple unresolved factual

disputes. As the resolution of these disputes is central to the determination of a breach of contract

claim, Plaintiff is prevented from making a clear showing of a likelihood of success on the

merits.”); Beacon Sales Acquisition, Inc. v. Cameron Ashley Building Prods., Inc., No. 1:25-cv-

1820, 2025 WL 3721684, at *9 (E.D. Va. Dec. 23, 2025) (declining to issue a preliminary

injunction where the plaintiff's “speculative” claims largely relied on “beliefs that things did not

pass the smell test” or “did not feel right”) (quotations and brackets omitted); Bartell v. Grifols

Shared Servs. NA, Inc. 618 F. Supp. 3d 275, 282 (M.D.N.C. 2022). The court follows suit here.

Accordingly, the court finds that Plaintiffs have not shown they are likely to succeed on

the merits of their employee solicitation claim.

B. Alleged Solicitation of Customers

Second, Plaintiffs argue that Foose violated the Non-Solicitation of Clients and Customers

clause by attempting to solicit the business of a Stay Alert customer named C.R. Jackson, Inc. DE

7 at 10. In support of this claim, they submit a single declaration from Chuck Hayes, an employee

of Stay Alert. See DE 7-8. He states that on November 18, 2025, at an industry sponsored golf

event, he spoke with Thomas Oswald, a C.R. Jackson employee. /d. at J] 7-8. Hayes states that

Oswald told him that Foose had contacted another C.R. Jackson employee, Al Bescher, about the

possibility of “Traffic Plan providing services to C.R. Jackson.” /d. at J 11.

Again, Foose denies this. He states in his declaration that he “‘did not initiate contact, solicit

work, or discuss competitive business” with any of Stay Alert’s customers, to include C.R.

13

Jackson. DE 14-2 at ¢ 57. Instead, Collins takes credit, stating that he “was the person who

reached out to C.R. Jackson about working with Traffic Plan” and that ‘‘Foose did not solicit any

customers” because his “job responsibilities at Traffic Plan do not include soliciting customers.”

DE 14-3 at §§ 49, 53. There is no other evidence in the record supporting Plaintiffs’ claim

concerning C.R. Jackson.

As above, the court finds that Plaintiffs have not shown that Foose likely solicited C.R.

Jackson’s business. The only evidence presented consists of hearsay-within-hearsay, and, once

again, the alleged speaker denies that he said anything of the sort. Notably, neither Oswald nor

Bescher (or any other C.R. Jackson employee) have submitted a declaration corroborating Hayes’

account. On such a sparse and incomplete record, a preliminary injunction as to this claim is

unwarranted.

C, Alleged Competition

Finally, Plaintiffs argue that Foose violated the Non-Compete clause by “overseeing

Traffic Plan’s efforts to establish business operations in North Carolina.” See DE 7 at 18. As

described previously, this is the most ambiguous of Plaintiffs’ claims because they do not clearly

identify the behavior they seek to enjoin. To the extent Plaintiffs rely on the alleged solicitation

violations—which would constitute direct competition with AWP and Stay Alert—the claim fails

for the reasons already stated. To the extent they rely on Foose’s role at Traffic Plan more

generally, they fail to demonstrate that he is (1) in a market-facing position or (2) otherwise

violating the geographic restriction set forth in the Agreement.

As to the first point, Plaintiffs allege “upon information and belief’ that Foose’s

responsibilities with Traffic Plan “are substantially similar to his responsibilities at AWP,

including the development and management of customer relationships across the southeast.” DE

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7 at 6. Foose and Collins contest this description. They contend that Foose’s role at Traffic Plan

“is focused on identifying potential merger-and-acquisition opportunities and engaging in

preliminary discussions with target acquisition companies before turning such matters over to

Traffic Plan leadership.” DE 14-2 at § 39; DE 14-3 at § 22. Foose states that as part of his role,

he does not “solicit customers, submit bids, compete against AWP, or manage field operations at

Traffic Plan,” including those that occur in North Carolina. DE 14-2 at J 40-41. Plaintiffs present

no new evidence as to this claim, so the court finds that Plaintiffs have not shown that Foose is

likely “overseeing Traffic Plan’s efforts to establish business operations in North Carolina.” See

DE 7 at 18.

Even if Plaintiffs had made a stronger showing in this regard, they have not demonstrated

that Foose is working within the geographic area outlined in the Agreement. Plaintiffs argue that

under the non-compete clause, Foose may not compete within 120 miles of his “former territory”—

which includes the states of Tennessee, Alabama, Georgia, North Carolina, South Carolina, and

Florida. D7 at 15; DE 19 at 5. But the Agreement does not say that. By signing the non-compete

clause, Foose agreed not to compete with AWP “within a 120-mile driving distance from [his]

regularly assigned place of duty or office.” DE 7-2 at § 1(c) (emphasis added). At the time Foose

worked for AWP, his assigned office was in Atlanta, Georgia. DE 14-2 at { 33. Foose states that

he does not work within a 120-mile radius of that office, and Plaintiffs do not argue to the contrary.

Instead, they suggest that because Foose was responsible for managing business within the six-

state territory, the entirety of each of those states should be considered his “regularly assigned

place of duty.”” DE 19 at 5-6. That reading of the contract strains credulity. If AWP had intended

to restrict Foose from competing within his former six-state territory, they could have said so.

Instead, they referred to an “office” or a “regularly assigned place of duty,” each of which denote

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that the restriction applies to a static location. This interpretation has been adopted by at least one

other court. In AWP, Inc v. Safe Zone Servs., LLC, No. 3:19-CV-00734-CRS, 2022 WL 989133

(W.D. Ky. Mar. 31, 2022), a district court found that AWP’s noncompete provision was “facially

unreasonable” and thus refused to enforce it. /d. at *8. In so doing, it considered the geographic

limitation, which prevented the former employee in question from “working for any competitor

‘within a 120-mile driving distance from Employer’s regularly assigned place of duty or office.””

Id. The court found this restriction to be unreasonable in part because the “evidence in the record”

indicated that the employee “would only work within sixty miles of the Louisville office,” thus

making the 120-mile range unduly restrictive. /d. (emphasis added). The court adopts the same

interpretation here.

For these reasons, the court finds that Plaintiffs have not shown that Foose likely violated

the non-compete clause.

IV. Conclusion

Plaintiffs have failed to show that Foose likely violated any portion of his employment

contract and, thus, that they are entitled to the extraordinary remedy of preliminary relief. See

Winter, 555 U.S. at 20. Accordingly, their Motion for Preliminary Injunction [DE 6] is DENIED.

SO ORDERED this alt. of June, 2026.

RICHARD E. MYERS II

CHIEF UNITED STATES DISTRICT JUDGE

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