United States District Court, S.D. Indiana, Indianapolis Division
ENTRY REGARDING INJUNCTION
WILLIAM T. LAWRENCE, JUDGE UNITED STATES DISTRICT COURT
entry on the Defendants' motion to reconsider (Dkt. No.
124), the Court directed the parties to submit a proposed
injunction within ten days of the date of the Court's
entry. The parties have submitted proposed injunctions.
Before discussing the propriety of an injunction in this
matter, the Court presents a brief summary of this case's
procedural history to provide context.
Performance Dynamics, Inc. ("Performance Dynamics")
alleges in its Amended Complaint that it maintains
proprietary rights in a physical therapy methodology known as
ASTYM®. The Defendants consist of both business entities
providing continuing education to physical therapists and
those providing physical therapy to patients, as well as the
individuals who own or are in upper management of the
defendant business entities. Performance Dynamics alleges
that it entered into service, confidentiality, and other
agreements with the Defendants, who then copied its
ASTYM® method, adopted the method as its own, trained
others in the method under a different name, disclosed
Performance Dynamics' confidential information, and did
not pay Performance Dynamics according to their agreements.
Performance Dynamics asserts claims against the Defendants
for breach of contract, misappropriation of confidential
information in violation of the Indiana Trade Secrets Act,
violations of the Lanham Act, common law trademark
infringement, unfair competition, and tortious interference.
In January 2015, the Defendants moved to dismiss a portion of
the claims and filed counterclaims against Performance
Dynamics, alleging breach of contract, fraudulent
misrepresentation, and violation of the Virginia Wiretap Act.
In February 2015, Performance Dynamics moved for partial
summary judgment as to the Defendants' fraudulent
misrepresentation and violation of Virginia Wiretap Act
those motions pending, Judge Baker held a settlement
conference on April 20, 2015. The settlement conference
lasted approximately six hours. All parties were represented
by counsel for the duration of the conference. A settlement
agreement was executed at the conference (the "mediation
agreement"). The mediation agreement was memorialized on
seven pages, including two pages containing handwritten
mark-ups to a document that had been provided by Performance
Dynamics' counsel to defense counsel on April 17, 2015; a
sheet of notebook paper with handwritten terms; and three
pages containing handwritten mark-ups to a proposed permanent
injunction entry that had been provided by Performance
Dynamics' counsel to defense counsel on April 16, 2015
(Dkt. No. 108-1).
counsel agreed to compose a clean, typewritten version of the
mediation agreement. On June 4, 2015, defense counsel sent a
typed document entitled "Settlement Agreement and Mutual
Release" to Performance Dynamics' counsel.
See Dkt. No. 113-1. The typed version intentionally
omitted the following term from the mediation agreement:
"No other instrumented soft tissue treatment shall be
provided at any such facility" (the "Omitted
Term"), which the Defendants maintain "should have
been either struck from the document that was signed at the
conclusion of the settlement conference" or that the
mediation agreement should have been otherwise altered to
give no effect to the Omitted Term. Dkt. No. 112 at 3-4. In
response to the Defendants' attempt to omit the term,
Performance Dynamics moved to enforce the terms of the
mediation agreement (Dkt. No. 104).
18, 2016, the Court granted the Plaintiffs motion to enforce
mediation agreement and requested that the parties submit to
the Court a proposed injunction within fourteen days (Dkt.
No. 115). Instead of filing a proposed injunction, the
Defendants asked the Court to reconsider its decision to deny
the parties' request for a hearing and also to ask the
Court to reconsider in its entirety its entry on the
Plaintiffs motion to enforce mediation agreement (Dkt. No.
3, 2017, the Court denied in its entirety the Defendants'
motion to reconsider (Dkt. No. 124). In that entry, the Court
again directed the parties to submit a proposed injunction
within ten days of the date of its entry, and informed the
parties that, if they did not do so, the Court would rely on
and evaluate the injunction terms contained in the agreement
resulting from the settlement conference on April 20, 2015,
i.e., pages four through seven of Docket Number
108-1 (the "April 20, 2015, Injunction").
parties did not submit a single proposed document. Instead,
the Plaintiff submitted what it purported to be "a
'clean' version" of the April 20, 2015,
Injunction, Dkt. No. 127 (referring to Dkt. No. 127-1), that
introduced new language to its terms, and the Defendants
similarly submitted a new proposed "Entry" that
they stated "better reflects the current procedural and
substantive posture of this action" and "more
accurately reflects the intent and language of the draft
injunction . . . that emerged from the April 20, 2015,
settlement conference," Dkt. No. 128 at 1 (referring to
Dkt. No. 128-1). The Court now considers the propriety of
entering an injunction in this case.
terms presented in the April 20, 2015, Injunction state that
they are "before the Court on the Joint Motion of the
Parties for entry of an Order of Permanent Injunction."
Dkt. No. 108-1 at 1. That, however, is not the case; as the
Defendants note, the parties did not submit a joint motion
for entry of an order of permanent injunction. See
Dkt. No. 128 at 5. Instead, the terms presented in the April
20, 2015, Injunction are before the Court as part of a
mediation agreement between the parties. The Court notes that
the broader mediation agreement contemplates the entry of an
injunction, (see Dkt. No. 108-1 at 2), but does not
condition the obligations of the mediation agreement on the
entry of an injunction or relieve the parties from the
obligations of the mediation agreement if an injunction is
Court, having reviewed the terms of the various proposed
injunctions, now declines to enter an injunction in this
case. None of the proposed injunctions are entirely
consistent with the terms of the parties' mediation
agreement. For example, the proposed terms prevent the
Defendants from "making representations about, or
advising anyone in ASTYM® therapy." Dkt. Nos. 108-1
at 6; 127-1 at 3; and 128-1 at 4. Such language would not
allow the Defendants to discuss ASTYM® therapy with
patients, even if that were the treatment patients were
receiving, nor would it allow the Defendants to recommend to
patients that they engage in ASTYM® therapy in the first
place. The mediation agreement, however, contemplates
allowing the Defendants to do both of these things.
See Dkt. No. 108-1 at ¶3.
Court declines to enter an injunction that, from the outset,
presents problems of interpretation and enforcement. It was
certainly possible for the parties to draft an appropriate
injunction, but they have failed to do so. The Court's
determination that the terms of the mediation agreement are
enforceable is undisturbed by this Entry, i.e., the
agreement set forth in pages one through three of Docket
Number 108-1 remains in effect.