          Case: 14-11155   Date Filed: 08/18/2014   Page: 1 of 6




                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                           No. 14-11155
                       Non-Argument Calendar
                     ________________________

               D.C. Docket No. 8:13-cv-02782-EAK-EAJ

ALFRED MOON,
ALFRED MOON, JR.,
CHERYL MOON,
MEGAN WHITE,

                                            Plaintiffs -
                                            Counter Defendants -
                                            Appellants,

versus

MEDICAL TECHNOLOGY ASSOCIATES, INC.,

                                            Defendant -
                                            Counter Claimant -
                                            Appellee.

                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                    ________________________

                           (August 18, 2014)
                Case: 14-11155    Date Filed: 08/18/2014   Page: 2 of 6


Before TJOFLAT, JORDAN and COX, Circuit Judges.

PER CURIAM:

       This case considers whether the district court erred by granting a preliminary

injunction which enjoined the Plaintiffs—Alfred Moon, Alfred Moon, Jr., Cheryl

Moon, and Megan White—from violating restrictive covenants in their

employment agreements with Medical Technology Associates, Inc. (“MTA”).

Because the district court made findings of fact without allowing an evidentiary

hearing, we vacate the district court’s preliminary injunction and remand for

further proceedings.

                         I. Facts and Procedural History

       The Plaintiffs in this suit each signed employment agreements when they

began working for MTA.           While the terms of the agreements varied, each

contained restrictive covenants preventing the disclosure of confidential

information, solicitation of MTA’s customers, and restricting competition with

MTA.

       Over a three year period, each of the Plaintiffs left employment with MTA

and began working for a similar company called Advanced Compliance Solutions.

Following their departure, MTA sent the Plaintiffs “cease and desist” letters

claiming they were violating the terms of the restrictive covenants and threatening

legal action.

                                          2
              Case: 14-11155    Date Filed: 08/18/2014   Page: 3 of 6


      In response, the Plaintiffs filed this suit seeking a declaratory judgment that

they were not violating the restrictive covenants or that the restrictive covenants

were invalid. MTA responded by filing a counter-claim for an injunction and

moved for a preliminary injunction enjoining the Plaintiffs from violating the

restrictive covenants. The parties submitted various conflicting affidavits related

to the motion for a preliminary injunction. The Plaintiffs moved for an evidentiary

hearing on the motion. The district court denied the motion, but held a non-

evidentiary oral argument on the motion. After the oral argument, the court issued

an order granting the preliminary injunction. The Moons appeal.

                               II. Issues on Appeal

      On appeal, the Plaintiffs contend that the district court erred by issuing the

preliminary injunction. Specifically, they contend that the district court erred by

not holding an evidentiary hearing, erred by holding that MTA was likely to

succeed on the merits, and erred by holding that MTA would be irreparably

harmed absent a preliminary injunction.

                             III. Standard of Review

      We review the decision to grant a preliminary injunction for abuse of

discretion. “In so doing, we review the findings of fact of the district court for

clear error and legal conclusions de novo. This scope of review will lead to

reversal only if the district court applies an incorrect legal standard, or applies

                                          3
               Case: 14-11155     Date Filed: 08/18/2014   Page: 4 of 6


improper procedures, or relies on clearly erroneous factfinding, or if it reaches a

conclusion that is clearly unreasonable or incorrect.” Forsyth Cnty. v. U.S. Army

Corps of Engineers, 633 F.3d 1032, 1039 (11th Cir. 2011).

                                    IV. Discussion

A. The district court should have conducted an evidentiary hearing.

      The Plaintiffs contend that the district court erred by denying their motion

for an evidentiary hearing and deciding the preliminary injunction motion without

an evidentiary hearing.

      An evidentiary hearing is not always required before the issuance of a

preliminary injunction. All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc.,

887 F.2d 1535, 1538 (11th Cir. 1989). But, “[w]here the injunction turns on the

resolution of bitterly disputed facts, however, an evidentiary hearing is normally

required to decide credibility issues.” Id.

      To reach its conclusion in this case, the district court made extensive factual

findings. In fact, the district court’s order—which MTA drafted—includes almost

five pages of factual findings. However, many of these facts are disputed by the

parties’ conflicting affidavits. For example, the Plaintiffs dispute whether they

competed in the restricted area (R. 18-3 at 4–5), whether they solicited MTA’s

customers (18-8 at 2), and whether MTA’s customer relationships were substantial

(R. 18-3 at 5, R. 18-6 at 5, R. 18-7 at 3). Additionally, the district court’s order


                                              4
               Case: 14-11155     Date Filed: 08/18/2014    Page: 5 of 6


states that the Plaintiffs “admittedly used confidential information to steer business

away from MTA.” (R. 35 at 5.) But the Plaintiffs never made this admission and

in fact stated they did not use confidential information. (R. 18-3 at 5–6, R. 18-5 at

2.)   Despite these conflicts, the district court’s order neither references the

Plaintiffs’ affidavits, nor explains why the Plaintiffs’ affidavits are not credible.

      In this case, “where much depends upon the accurate presentation of

numerous facts, the trial court erred in not holding an evidentiary hearing to

resolve these hotly contested issues.” Id. In the face of two plausible affidavits

“submitted to demonstrate a contested issue, the district court is not at liberty to

accept one construction of the evidence and reject the other without the benefit of

an evidentiary hearing.” CBS Broadcasting Inc. v. EchoStar Communications

Corp., 265 F.3d 1193, 1207 (11th Cir. 2001). On remand, the district court should

conduct an evidentiary hearing.       And, the movant—in this case MTA—must

clearly satisfy the burden of persuasion as to each element of the preliminary

injunction. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000).

B. We cannot decide the merits of the preliminary injunction at this time.

      The Plaintiffs also contend that the district erred by failing to apply Florida

law and by applying an incomplete irreparable injury standard. However, because

the propriety of the injunction turns on factual findings, we cannot decide the

merits of the preliminary injunction.


                                           5
              Case: 14-11155     Date Filed: 08/18/2014    Page: 6 of 6


      On remand the district court should consider the application of Shields v.

Paving Stone Co., Inc., 796 So. 2d 1267, 1269 (Fla. 4th DCA 2001), because a

federal court sitting in diversity is bound to apply the law of the forum state. See

Bravo v. United States, 577 F.3d 1324, 1326 (11th Cir. 2009) (“[W]e are ‘bound’

to follow an intermediate state appellate court ‘unless there is persuasive evidence

that the highest state court would rule otherwise.’”). Additionally, the district court

should apply the preliminary injunction standard we dictated en banc in Siegel, 234

F.3d at 1176. In this Circuit, “a preliminary injunction is an extraordinary and

drastic remedy.” Id. (quoting McDonald's Corp. v. Robertson, 147 F.3d 1301,

1306 (11th Cir.1998)). To show irreparable injury, MTA bears the burden of

clearly establishing it will be harmed in the future by an actual and imminent

injury for which adequate compensatory or other corrective relief will not be

available. See Sampson v. Murray, 415 U.S. 61, 90, 94 S. Ct. 937, 953 (1974);

Siegel, 234 at 1176.

                                   V. Conclusion

      The district court erred by failing to hold an evidentiary hearing.

Accordingly, we vacate the court’s injunction and remand with instructions to hold

an evidentiary hearing and further proceedings.

      PRELIMINARY INJUNCTION VACATED, CASE REMANDED

WITH INSTRUCTION.

                                          6
