Preliminary Injunction Enforces Restrictive Covenant

impose unnecessary and wasteful burdens on the parties, judges, alternatively, we may exercise our authority under rule a corporation has no effect on its ability to enforce a non- accordingly, we hold that the district court did not err agreement including that, under the modified terms of the the citizenship of the llc. hart v. terminex int'l, 336 f.3d its conclusion that we should not gratuitously read an action remaining, and the only one on which the district court wood eventually executed an employment agreement in which join them in that holding. decision supplied by state law[,] . . . considerations of finality, that each has in the other," 808 a.2d at 922, only in support of goodwill, unique or extraordinary skills, and specialized training characteristics of both a corporation and a partnership. assignment into an employment agreement when there has been matthew wood and pyrotecnico f/x, llc are guides our analysis. and other litigants waiting for judicial attention."). such 100, 103 (3d cir. 1988), "[a]lthough the amount of the bond is as we held in frank's gmc truck center, inc., 847 f.2d predecessor. hess was clearly premised on a "sale of assets" pittsburgh, pa 15219 concluded that it is "virtually inconceivable that [the former only subject of this appeal. 406, 414 (fla. 2003) ("[b]ased on fundamental principles of such a bond should the district court reissue the injunction. equities favor[ed] enforcement of the 2005 employment agreement absent an express assignment. second, they argue business; 525 william penn place corporate express office prods., inc. v. phillips, 847 so.2d we agree that wood's prior conduct is not relevant to whether making it contingent upon the posting of a bond. it does not iv. proceed to the merits of the appeal. proceedings, stephen vitale, a pennsylvania resident employed many layers of partners or members there may be" to determine appeal. because the restrictive covenant is an appropriately rule technically directs the authority of district courts, the historically held that the transfer of a corporation's stock does itself had authority "to dismiss a dispensable nondiverse party" there was no need for an assignment of the non-compete although limited liability entities resemble corporations in many commercial transactions and the applicable statutes, we hold holding in those regards. however, because the district court included as material conditions to the 2005 agreement. assignability of a restrictive covenant in an asset sale. although dev. corp., 555 f.2d 1131, 1145 (3d cir. 1977)). complete diversity requires that, in cases with multiple plaintiffs 20 the district court below premised jurisdiction on the is determined by the citizenship of each of its members. for the third circuit from soliciting any former customers or clients of shows, wood's skills and experience were known both in the abused its discretion in waiving the bond requirement. we entity irrespective of, and entirely distinct from, the persons who parties concede on appeal that the lack of complete diversity corporate entity." id. (citing black's law dictionary 340 (6th pennsylvania, is a citizen of pennsylvania. on the defendant business interests[.]" id. at *16. accordingly, the court "blue- as any defendant. see exxon mobil corp. v. allapattah svcs. 2. controversy, but an interest of such a nature that a final decree existing accounts, calling on customers, applying for permits, columbia props. anchorage, lp, 437 f.3d 894, 899 (9th cir. "2005 agreement"), superseded the earlier 2001 employment corporations[;] . . . [t]hat rule must not be extended."); see also 2009 wl 159182, at *17. should the court have occasion to 2009 wl 159182, at *19. wood argues that the district court much less discretionary. while there are exceptions, the disclosure or use of trade secrets or any subject to future request. employer such that he was no longer bound by the employment united steelworkers of am. v. r.h. bouligny, inc., 382 u.s. 145, 26 failed to require a bond in connection with the injunction, as alternative employment for a period of two years we therefore hold that zambelli, as the same corporate specifically assign the 2005 agreement when the 2007 stock impose any obligation on the parties to seek a bond. always has jurisdiction to determine its jurisdiction. united shells. leech, tishman, fuscaldo & lampl the absence of complete diversity � undetected. 490 u.s. at investors, douglas taylor, assumed the role of ceo and owned and operated business, those terms should have been covenant will not be enforced." 808 a.2d at 920-21. this pyrotecnico primarily consist of editing music, serving as a pyrotecnico and wood" (wood supp. br. 2), is particularly pittsburgh, pa 15222 require zambelli to post a bond in connection with the consider the issuance of an injunction on remand, there will thus have actively attempted to minimize any conduct that may attendant familiarity with zambelli's confidential business contained the formula zambelli used to price its shows. wood matter jurisdiction in light of the absence of complete diversity amount that the court considers proper to pay the costs and a. 909, 912 (pa. 1906) (holding sale of all stock of bridge 1. pyrotecnico as a party. zambelli argues that pyrotecnico is a hear a dispute, "it is incumbent upon the courts to resolve such management and uncertain of the security of his employment 1020, 1022 (11th cir. 2004); handelsman v. bedford village design or choreography talent, experience and/or respects, including the passive management role performed by matthew wood and pyrotecnico f/x, llc are 25 permits, licenses, and contractual relationships. following the employment agreement, requiring, among other things, that v. jones, 177 u.s. 449, 454 (1900) (declining to extend the representative of zambelli during the period of his sewickley, pa 15143 information, are both legitimate and protectable parts of a received training in the layout and choreography of shows as a. pennsylvania law requires that the covenant be tailored to circuit, confronted with a similar question, persuasively lack of subject matter jurisdiction at any stage in the proceeding. incorporated and of the state where it has its principal place of zambelli fireworks manufacturing co., inc. damages sustained by any party found to have been wrongfully many of the inner workings of zambelli's business. he was hoxworth v. blinder, robinson & co., inc., 903 f.2d 186, 210 (zambelli supp. br. 3.) wood counters that pyrotecnico is communication with zambelli clients throughout the country. restriction." 2009 wl 159182, at *17. before: smith, fisher and stapleton, circuit judges. ii. 32 continental united states with whom wood had 1300 oliver building employment agreement against an employee. the defendant pyrotecnico of louisiana, llc, of which he was the managing "[a]t its heart, the case below centered around the former of business [in nevada]." (app. 50.) pyrotecnico admitted this exceptionally narrow circumstance where the nature of the finally, we briefly address wood's argument that hess's transfer that goodwill to pyrotecnico, its direct competitor. after which the company was no longer wholly owned by axiomatic principles of corporate transactions, we agree that a leech, tishman, fuscaldo & lampl inc., 545 u.s. 546, 553 (2005); kaufman v. allstate n.j. insur. use of a restrictive covenant. victaulic, 499 f.3d at 235 (citing duration and geographic extent." victaulic co. v. tieman, 499 wood, no. 2:08-cv-415, 2009 wl 159182 (w.d. pa. jan. 21, repressing competition or to keep the employee from competing agreed to indemnify him for any loss of salary and legal preliminary injunction enforcing, under pennsylvania law, a (pa. 1957)). "wood will not suffer direct monetary harm if the 2005 (3d cir. 1990) (quoting sys. operations, inc. v. scientific games been included in the injunction because "the only cause of fireworks mfg. co., inc. v. wood, no. 2:08-cv-415, 2009 wl containing a two-year non-compete provision. wood's initial sale took place. in support of this position, wood relies on hess entity or dispatch the company's contract rights); accord procedure 65(c). rule 65(c) states that "[t]he court may issue a in light of this rule, pyrotecnico's presence defeats i. reviewing sites, and attending trade conferences. his from zambelli, also a citizen of pennsylvania. extend the corporation exception to an unincorporated "joint a. jurisdiction. in supplemental briefing, all parties conceded the rule of civil procedure 21 to dismiss pyrotecnico and proceed iii. cannot be joined, the court must determine question before us is how to proceed in light of this developed unique skills that are very specific to the pyrotechnic (4) whether the plaintiff would have an adequate employment agreement is enforced because pyrotecnico has the requirement is almost mandatory." id. such an extremely pyrotecnico is a limited liability company registered under the employee's specialized training and skills is a legitimate use of to analogously formed business entities, see id. at 189 disfavored restraint on trade under pennsylvania law, they are 5. a provision permitting a court to modify the with zambelli is also a legitimate interest." id. both interests, "review an order granting a preliminary injunction for abuse of the company. this later agreement, signed june 2, 2005 (the purchase of corporate stock nor a corporate merger affects the restrictive covenant not to compete. however, because the not required on the face of the rule. rule 65(c) constrains a any advertising, marketing or sales endeavors. wood, zambelli filed a variety of other claims against wood unincorporated entity, takes on the citizenship of each of its action necessarily precludes any monetary harm to the 3. a confidentiality clause preventing the wood's work with pyrotecnico is only internal and he does not enjoined or restrained." fed. r. civ. p. 65(c) (emphasis added). and skill wood acquired during his seven years of employment 19 with zambelli. rule 21 provides that "[o]n motion or on its own, the court may dep't stores, inc., 357 f.3d 827, 829 (8th cir. 2004); rolling allegedly improper observation that wood had intentionally the risk of injury to wood from a wrongful injunction. dismiss pyrotecnico on appeal, thus restoring complete diversity provision was found to be unreasonable; corporation to enforce an employment agreement. see siemens an unincorporated business entity, should be treated as a in victaulic held that "not allowing competitors to profit from an shoot aerial fireworks displays for zambelli customers. in 2007, through the layers, pyrotecnico takes on the citizenship of the wood, who had initially been attracted to the family-run 2005, the zambellis asked wood to sign an updated employment pennsylvania law would govern the interpretation our research reveals no pennsylvania appellate cases engaged in the sale or production of pyrotechnic at any time, on just terms, add or drop a party." although the considerations are particularly relevant where, as here, the allowing him to become one of only sixty-eight certified trainers forum. citizenship of its partners or members. swiger, 540 f.3d at 182. party to this action and we will exercise our rule 21 authority to own its stock." commonwealth v. monongahela bridge co., 64 and civil conspiracy against wood and pyrotecnico. the in any manner in the pyrotechnic business" within 27 eckert, seamans, cherin & mellott zambelli company, the zambelli family considered wood to be for some other purpose, as for example, eliminating or morgan's home equip. corp. v. martucci, 136 a.2d 838, 846 5301 et seq. against wood, breach of fiduciary duty of loyalty judgment rendered in the person's absence might the question has concluded that a limited liability company, as as a corporation incorporated under the laws of pennsylvania interests include trade secrets, confidential information, meyer, unkovic & scott office pursuant to the terms of an employment agreement 44th floor, us. steel tower of louisiana. stephen vitale, a resident of new castle, zambelli's major shows. finding" here in support of its waiver of the requirements of agreement on its terms. although restrictive covenants are a to consider include: (1) the extent to which a employment with pyrotecnico that he not take or use any the extent to which any prejudice could be contained in an employment agreement, is not assignable to the am. bible soc'y v. blount, 446 f.2d 588, 595 n.12 (3d cir. and pyrotecnico, despite being a nevada limited liability states v. ruiz, 536 u.s. 622, 628 (2002). we have appellate blaymore i, suite 301 preliminary injunction enforcing the non-compete clause is the choreography, id. at *2, gained first-hand experience by "employment proposal" that outlined terms for a new have any bearing on the equities of imposing a bond; the fact shareholders. a holding company made up of four private left to the discretion of the court, the posting requirement is 7 although the parties concede the absence of complete will exercise our authority under federal rule of civil establishing diversity is thus the "citizenship" of each party to a relatively new unincorporated business entity possessing some carlsberg res. corp., 554 f.2d at 1256. however, "is a nevada limited liability company with its principal place considerations of efficiency, fairness, and judicial economy expenses. interests, it does not purport to analyze or apply the off-hand enjoined for the same two-year period from no. 09-1526 llc v. st. croix renaissance group, llp, 528 f.3d 176, 178 a change in the corporate entity. as we explained above, a stock party is dispensable to the litigation, a question over which the sec., llc, 450 f.3d 265, 267 (7th cir. 2006); johnson v. held, applying pennsylvania law, that legitimate business addressing the impact of a stock sale on the enforceability of a eleven days' notice that he was resigning, effective february 22, entity. accordingly, we believe the pennsylvania supreme 14 752, 758 (e.d. pa. 2001). in siemens, a purchaser acquired all wood's argument incorrectly assumes that a corporation pompano beach, florida, works in the fireworks industry as a cannot be made without either affecting that interest, or leaving absence of complete diversity deprives all federal courts of issued if there had been the opportunity for full apparent absence of complete diversity and directed the parties agreement as modified[.]" id. this timely appeal followed. assocs. ltd. p'ship, 213 f.3d 48, 51 (2d cir. 2000). we now constitute a breach of the 2005 agreement with zambelli. with the signing of the 2005 employment agreement" was subject matter jurisdiction, we can dismiss a suit sua sponte for 600 grant street 13 on appeal from the united states district court in holding that zambelli had a legitimate business interest in its "protection of zambelli's customer goodwill is a legitimate (3d cir. 2008). technician or shooter on firework shows, assisting in the design literally prevent [wood] from engaging in his chosen profession, of pennsylvania. complete diversity is therefore lacking. corporation exception to a "limited partnership association"); and when the district court "make[s] specific findings." elliott employment relationship . . . between zambelli and wood." training and skills that we have previously held are a legitimate as we have held before, the citizenship of partnerships be other factors that weigh in favor of zambelli when evaluating restructuring was a stock sale rather than an asset purchase, provision. univ. v. white, 941 f.2d 201, 219 n.26 (3d cir. 1991) enforceability of a noncompete agreement."). 9 wood argues that pyrotecnico is indispensable and that the pyrotecnico agreed to hire wood. it was a condition of wood's supreme court confirmed its applicability to federal courts of other measures; (3) whether a judgment rendered nonjoinder. facts, the district court in national business services inc. v. 21 particular, wood had access to an excel spreadsheet that not destroy the corporate entity because "a corporation is an switch & signal div., 809 f.2d 1006, 1011 (3d cir. 1987) vacate the injunction and remand with instructions to impose defendant, and that such bond shall be issued irrespective of any business interest, appropriately subject to protection through the access to pricing information, contract terms, and client lists. in we disagree that waiver of rule 65(c) is appropriate pyrotechnic guild international. wood also became licensed in absence of complete diversity based on the rule, articulated in third party does not excuse zambelli's obligation to compensate in may 2007, a major sale of zambelli's stock took place, of preventing the needless expenditure of litigant and judicial argued that the stock sale effected a corporate change in the question of how to determine the citizenship of an llc for in the judgment; (b) shaping the relief; or (c) prejudice that person or the existing parties; (2) a legitimate business interest in ensuring that wood did not terms of the 2005 agreement; misappropriation of trade secrets under 12 pa. cons. stat. � goodwill." id. the analysis is the same here � wood had access enforceable in the event the non-compete not only dispensable but was inappropriately included in the 30th floor, citizens bank building discretion, the factual findings for clear error, and the zambelli; integral to the case[,]" (wood supp. br. 2), including civil christina i. kepplinger two years following the cessation of his the court made various forays into the legitimacy of the business pyrotechnics industry and to zambelli clients. sufficient consideration to render the agreement valid. zambelli the district court held that the 2005 agreement between our sister circuits, that the citizenship of an llc is determined be wholly inconsistent with equity and good conscience.'" id. president of zambelli. breached the 2005 agreement. finally, they argue that the "it is a basic tenet of corporate law that a change in stock business' goodwill relationship with its clients. under similar (i.e., until february 22, 2010) from designing or to hear the appeal on the merits as between zambelli and wood. 146-47 (1965) (declining to extend the corporation exception to here. we have never excused a district court from requiring a business in new castle, pennsylvania. injunction. on the merits." carlsberg res. corp. v. cambria sav. & loan a significant portion of wood's responsibilities required under this court's continuing obligation to assess its and severally liable need not be joined because the plaintiff can that the defendant will be reimbursed for losses reasons, including the retention of various state and federal 17 greens mhp, l.p. v. comcast sch holdings l.l.c., 374 f.3d members of pyrotecnico of louisiana, including its managing displays for a period of two years after leaving injunction because it was not a party to the 2005 agreement. b. the court reasoned, can be safeguarded through a reasonable during his seven years of employment[.]" id. at *10. the court contract at the heart of this litigation is between two diverse assignability provision, where the covenant is included in a sale by rule 19(b), which states: marina, inc., 435 f.3d 51, 54 (1st cir. 2006); wise v. wachovia under pennsylvania state law, we will affirm the district court's presented here as to what assignment, if any, is required when balance of the equities favor enforcement of the 2005 penciled" the 2005 agreement to conform to its preliminary this court has explained:4 with prospective economic advantage against wood and med. sols. health servs. corp. v. carmelengo, 167 f. supp. 2d employee had "wide-ranging contact with [the employer's] and agreed to pay wood his salary for two years if the covenant conspirator. after leaving zambelli; weighing the rule 19(b) factors, pyrotecnico is not an parties who could refile an identical suit in the same federal in pyrotecnico's new castle, pennsylvania headquarters, because zambelli advertised wood as one of its premier parties disagree. whether a party is dispensable is determined consistent with this conclusion, pennsylvania courts have three months' notice of resignation; jurisdiction, and when there is a question as to our authority to protect legitimate business interests. victaulic, 499 f.3d at 235. 12 newman-green, inc. v. alfonzo-larrain, 490 u.s. 826, 836 the court notes the security provision in fed. r. this appeal presents a question of the propriety of a 6 bond where an injunction prevents commercial, money-making district judge: honorable terrence f. mcverry and other unincorporated associations is determined by the member stephen vitale. because stephen vitale is a resident of customers and potential customers over a significant period of information . . . and exploiting [the employer's] customer received personal training from ernie simmons on layout and chapman v. barney, 129 u.s. 677, 682 (1889) (declining to wood assume substantial new job responsibilities. wood did him as a leader in the industry due, in part, to zambelli's efforts contacting or soliciting business from any company to the city of pittsburgh did not dissolve the corporate (d.c. no. 08-cv-00415) 16 "represents a preexisting relationship arising from a continuous whether, in equity and good conscience, the (quoting shields v. barrow, 58 u.s. 130, 139 (1854)). expectation of increased job responsibilities, wood contacted and pyrotecnico, individually and jointly. zambelli alleged d/b/a zambelli fireworks internationale (wood br. 12-14 (quoting 2009 wl 159182, at *17).) although for many years. pyrotecnico is comprised of several related contract. if wood's employment agreement with zambelli was district court erred in failing to impose a bond as required by [the employer's] customers, products, technical details, and that the restrictive covenant does not protect a legitimate relationship between the parties; the restrictions imposed by the accordingly, the citizenship of an llc is determined by the narrow exception exists "when complying with the preliminary to be "reasonably necessary for the protection of the employer," to zambelli's client list, pricing and business strategy, and had next, we address the enforceability of the non-compete been a direct competitor of zambelli in the fireworks industry determinations of questions of law de novo." bennington foods restructuring. we do not read hess to require such a subjective a.2d 1140 (pa. super. 1999) (holding parties who are jointly intended to be contingent upon zambelli continuing as a family- district court held that "[t]he specialized training, knowledge new york, id. these are precisely the sort of specialized under rule 21. id. at 837. pennsylvania and a member of pyrotecnico, he is not diverse lessened or avoided by: (a) protective provisions diversity case has been tried in federal court, with rules of finally, wood challenges the district court's failure to concluded under pennsylvania law that a stock sale, unlike a defendant matthew wood ("wood"), a resident of employer and employee, the touchstone of which is that trust relied on its determination that the defendants "made a knowing, matthew wood is hereby enjoined for a period of wood for his losses should he ultimately prevail in the company ("llc") for diversity jurisdiction purposes. we now historically family-owned and operated, first by george agreement. the 2005 agreement contained, inter alia, a1 agreement. the siemens court rejected this argument, noting, court's holding to that effect. here, wood's considerable amount of client contact, and [they] must be before the court." steel valley auth. v. union 2008. wood began working for pyrotecnico on march 3, 2008. business. 28 u.s.c. � 1332(c). and a partnership, as an a louisiana limited liability company. tracing its citizenship a `citizen' under the jurisdictional rule established for jane l. volk suffered if it turns out that the order was opinion of the court of shows for existing pyrotecnico customers, and training other software. prior to wood's employment with zambelli, wood remedy if the action were dismissed for diversity of the parties, based on zambelli's pleading in its requested same and the court seeing no imminent position of employment with any company time . . . [and] had access to confidential information regarding for the western district of pennsylvania was also aware of the prices that zambelli paid for its fireworks deprives this court of subject matter jurisdiction, the threshold v. kiesewetter, 98 f.3d 47, 60 (3d cir. 1996); see also temple non-compete agreement. however, one district court in this district court provided a number of additional reasons that the court order granted without the full deliberation a verified complaint that it was a corporate citizen of specialized training are protectable interests. in fact, the court that wood may be able to recover litigation expenses from a with valuable pyrotechnics training. specifically, wood customer goodwill and wood's specialized training and skills.3 llc, another limited liability company registered under the laws pyrotecnico jointly, including the conspiracy claims, allege federal rule of civil procedure 65. pyrotecnico also argues agreement that would ensure wood's continued commitment to or multiple defendants, no plaintiff be a citizen of the same state indispensable because "[t]he claims against pyrotecnico are domiciled. see swiger v. allegheny energy, inc., 540 f.3d 179, sale of assets, does not necessitate an assignment in order for the in the person's absence would be adequate; and (internal quotations omitted). in other words, indispensable purposes of section 1332), the supreme court has flatly rejected mark a. willard (argued) co., 561 f.3d 144, 148 (3d cir. 2009). the key inquiry in the restrictive covenant. first, the district court concluded that expenses he may incur for the duration of any non-compete entity that prevents "new" zambelli from enforcing the 2005 contexts only where "the balance of [the] equities weighs patrick sorek (argued) litigation.4 2006); gen. tech. applications, inc. v. exro ltda, 388 f.3d 114, zambelli as well as any zambelli employees for protectable business interests included "customer goodwill" and not, in and of itself, normally affect the existence of the had little experience in aerial fireworks displays on the scale of marketing strategies." id. at 708. significantly, the court there the requirement of security is rooted in the belief the 2005 agreement with wood. zambelli filed a motion for2 exception to rule 65(c) because the district court held that an unincorporated labor union); great s. fire proof hotel co. employment with zambelli on february 22, 2008 with zambelli. in january 2008, taylor presented wood with an and with its principal place of business in new castle, pennsylvania and is not diverse from zambelli, another citizen 535 smithfield street a preliminary injunction, which the district court granted in part a covenant." 499 f.3d at 235. to the extent this reasoning corporation' . . . [an unincorporated entity] may not be deemed the "next generation" and "future of the company." thus in 22 of the stock of shared medical systems, corp. ("sms"). sms, the action. opening brief to the argument that pyrotecnico should not have conflicts with dicta from hess, the principal holding in victaulic preliminary injunction, as required by federal rule of civil agreement, wood has essentially conceded that pyrotecnico is under pennsylvania law, "a restrictive covenant not to compete, for the foregoing reasons, we will dismiss pyrotecnico of unincorporated associations must be traced through however enforce that agreement against wood, and we affirm the district [and] is not necessary for the protection of zambelli's legitimate pyrotecnico f/x llc, 4 sale, george zambelli, jr. was the only remaining zambelli a corporation merely transfers a majority of its stock. u.s.c. � 1332(a), which provides that district courts "have both limited liability entity-owners and corporate shareholders, trial offers. that protection consists of a promise if a person who is required to be joined if feasible pennsylvania law, vacate the preliminary injunction for failure 828-29. the court of appeals noticed the flaw, invited the in this case. having cured the jurisdictional defect, we now interest increased from 20% to 50% and he acquired a right of regarding potential employment with pyrotecnico. vitale and narrow protection of a legitimate business interest, and because entity that entered into the 2005 agreement, may now seek to that zambelli had two legitimate business interests in enforcing we begin with the question of whether we have subject the district court incorrectly concluded that zambelli was able publicizing, promoting or referencing wood's citizenship of its members. and as with partnerships, where an the continental united states or taking any f.3d 227, 235 (3d cir. 2007) (quoting hess, 808 a.2d at 917). the threshold question before this court is our subject complete diversity in this case. on the plaintiff side, zambelli, doubts, one way or the other, before proceeding to a disposition certiorari, the supreme court held that the court of appeals principle that "[i]f the covenant is inserted into the agreement 525 william penn place scope of the injunction. matter jurisdiction over this dispute. this case presents us with (collecting cases). the district court made no such "specific activities. rather, we have recognized exceptions in other pyrotecnico, unfair competition against wood and pyrotecnico, the opportunity to address, for the first time in this circuit, the attorneys for appellant, matthew wood covenant are reasonably necessary for the protection of the wood challenges on appeal the district court's holding satisfying ourselves of our jurisdiction to proceed, we will of the 2005 agreement. to submit supplemental briefing on the question of this court's that it should not have been included in the scope of the language applies to zambelli's conduct without engaging the rule 65(c). nor does pyrotecnico's indemnification obligation vincennes university and a bachelor's degree in theater from business contact as an employee, agent or laws of nevada. its sole member is pyrotecnico of louisiana, purchasing business entity, in the absence of a specific dispensable party under federal rule of civil procedure 19(b) new castle, pennsylvania, pyrotecnico is a citizen of b. in fulfilling his job responsibilities, wood was privy to choreographing aerial pyrotechnic displays; original employment agreement survive any corporate instances in which a bond may not be required are so rare that course of business." butler v. butler, 663 a.2d 148, 152 n.9 the district court predicated its jurisdiction on the fisher, circuit judge. the district court for proceedings consistent with this opinion. pennsylvania law on legitimate business interests. we have in light of the changes in management and the responsibilities expanded over time as zambelli provided wood diversity of the parties under 28 u.s.c. � 1332. though the have client or customer contacts. wood's duties with we are asked now to resolve the citizenship of an llc, parties to address it, and, en banc, returned the case to the suggest the district court was biased in its consideration by its zambelli filed this action on march 26, 2008, against (pa. 1995). v. efficiency, and economy become overwhelming."); because we will dismiss pyrotecnico as a nondiverse party and restrictive covenant in wood's 2005 agreement with zambelli argued october 28, 2009 wood first argues that the injunction is improper because accomplishments while employed at zambelli in ("[a]lthough possessing `some of the characteristics of a 29 llc has, as one of its members, another llc, "the citizenship by the citizenship of its members. because vitale is a citizen of 31 precedential a preliminary injunction under 28 u.s.c � 1292(a)(1). we ownership is merely a transfer of shareholder rights which does 2009). 15 v. grey wolf drilling co., 542 f.3d 1077, 1080 (5th cir. 2008); original jurisdiction of all civil actions where the matter in 541, 543 (7th cir. 2003) (quotation omitted). 28 10 to enforce the non-compete clause despite its failure to employer's goodwill interests were implicated where the former partnership for purposes of establishing citizenship. see harvey forums. 1. a clause prohibiting wood from "engag[ing] side, wood, who is domiciled in florida, is a citizen of florida. will vacate the injunction, this last issue is moot. after enforce the employment agreement "because there [had] been no interest and, and is between . . . citizens of different states." (o'connor, j., dissenting) (arguing that passive owners are not 21 to dismiss the nondiverse party and proceed with the appeal. join our sister circuits in holding that the citizenship of an llc 42 pa. cons. stat. � 8322)). the remaining claims against information from zambelli. pyrotecnico was aware of the 182 (3d cir. 2008) (citing gilbert v. david, 235 u.s. 561, 569 dismissal of pyrotecnico necessitates the dismissal of wood. attorneys for appellee 2 having established that we lack subject matter pittsburgh, pa 15219 our ability to dismiss a party thus turns on whether that diversity on appeal, this circuit has not previously addressed the separate "purchasing business entity" so that any restrictive parties are indispensable if "in the circumstances of the case action should proceed among the existing parties pyrotecnico individually can be pursued in state court. full arguments in favor of extending the rule of corporate citizenship because he was already employed by zambelli. the district enforceable in equity where they are "incident to an employment allegation in its answer. the citizenship of the members of specialized training paid for by zambelli and "acquired and 30th floor, citizens bank building injunction `raises no risk of monetary loss to the defendant.'" merge the legal identity of the shareholders and the corporate restrictive covenant in wood's employment agreement. for this reason, every federal court of appeals to address george zambelli, jr. zambelli is a corporation incorporated recover fully from any one of multiple joint tort-feasors (citing the controversy in such a condition that its final termination may district court's authority to enter a preliminary injunction, so that the employer can gain an economic advantage, the id. at *18. the district court concluded that "the balance of the calculated decision to breach the 2005 agreement" when it was louisiana, llc. weighing the equities of entering a preliminary injunction. (1915)). a corporation is a citizen both of the state where it is appellants united states court of appeals 159182, at *11 (w.d. pa. jan. 21, 2009). that issue was not effects, and pyrodigital software. although wood had some in combination with music through the use of computer participating in aerial fireworks displays, id., received or should be dismissed. the factors for the court attorneys for appellant, pyrotecnico f/x llc to advertise wood's specialized skills. zambelli therefore had most rules of citizenship are well established. a natural thereby restore this court's jurisdiction to reach the merits of the the district court's holding is consistent with injunction, "wood is able to maintain his employment at appeals in newman-green. in newman-green the district court stock sale as opposed to an asset purchase for a variety of district court "to determine whether it would be prudent to drop 120 (4th cir. 2004); gmac commercial credit llc v. dillard stock company"). deliberation. controversy exceeds the sum or value of $75,000, exclusive of unpersuasive in light of wood's allocation of three pages in his zambelli argues that this case falls within the rare zambelli remains the appropriate entity to enforce the covenant law. specifically, the district court held that zambelli's pennsylvania, is the managing member of pyrotecnico of pramco, llc ex rel. cfsc consortium, llc v. san juan bay statement quoted by wood. second, wood suggests that this relations against wood and pyrotecnico, intentional interference companies, all of which are managed by stephen vitale. 7. a choice of law provision stating that the terms of the restrictive covenant not to compete contained in and not a transfer of stock. hess does not answer the question covenants it seeks to enforce must be assigned to it by its 6. a provision whereby wood agreed to pay all in the non-compete provision, but limited the scope of the procedure 21 to dismiss the dispensable nondiverse party, and zambelli argues that pyrotecnico is dispensable because erred in waiving the rule 65(c) bond requirement, we will employer; and the restrictions imposed are reasonably limited in doing business in approximately 40 states. the company was manning j. o'connor wood would suffer irreparable injury from the injunction, the could have based its partial grant of the preliminary injunction, together under state law. see, e.g., baker v. ac& s inc., 729 plaintiff zambelli fireworks manufacturing co., inc. and that this court should exercise its authority under federal based on our review of pennsylvania law and these jurisdictional defect. at the request of the plaintiff-appellee, we obtained in the district court was likewise directed to both theories of joint and several liability, which need not be tried among the parties. federal courts are courts of limited jurisdiction to review an interlocutory appeal from the entry of corporate culture alone cannot invalidate a legally binding ass'n, 554 f.2d 1254, 1256 (3d cir. 1977). sufficient consideration to bind him to the 2005 agreement was count i for breach of contract against wood." (wood br. member. (app. 920.) in its order granting in part zambelli's request for a finally, we note that the district court's observation that zambelli family members. the transaction was structured as a injunction on a variety of grounds. first, they contend that the the oldest and largest fireworks companies in the united states, pennsylvania, wood was a citizen of florida, and pyrotecnico further, wood's argument that "[t]he relief sought and pyrotecnico was not pled. however, in the course of the trial under rule 65(c) to waive a bond requirement except in the defendant pyrotecnico f/x, llc ("pyrotecnico") has (1989) ("[r]equiring dismissal after years of litigation would responsibilities with zambelli included work on new and 18 were enforced and to indemnify wood for his litigation family member with stock ownership in the company. his prevailed in a legal proceeding to enforce the in 2001, zambelli hired wood to work in its florida compete agreement. because zambelli's 2007 corporate (filed: january 15, 2010) stock sale, unlike a sale of assets, does not alter the corporate pyrotechnician and choreographer, executing fireworks displays 30 11 24 in the united states, id., and became licensed in colorado and legal fees, costs, and expenses if zambelli experience in the areas of sales, agreements, design work, a longstanding relationship with zambelli clients, who viewed on february 11, 2008, wood provided zambelli with request by the parties. because the district court in this case terms of the 2005 agreement in order to render it hess is purely dicta. the legal issue in hess was the and unworkable analysis. the court in hess noted that an v. gebhard & co., 808 a.2d 912 (pa. 2002), which held that, weigh against a wholesale dismissal of the action at this stage. such a bond should the district court decide to reissue the no party requested the rule 65(c) bond imposes a prerequisite proceeded to summary judgment with the jurisdictional flaw � ed. 1990) and victoria a. braucher, 6a fletcher cyc. corp., � patrick sorek (argued) resources that occurs when a case proceeds to trial in the enjoined for the same two-year period from pyrotecnico" subject to restrictions on what work he performs. from this suit, affirm the district court's holding that the colorado and new york during the course of his employment on appeal, wood and pyrotecnico ask us to vacate the information regarding the operation of zambelli's not sign the proposal. accordingly, we hold that pyrotecnico is a dispensable address the remaining arguments in turn. real parties to the controversy and should be discounted for zambelli information or bring any trade secrets or proprietary need for bond, security will be waived at this time zambelli, sr. and later by his children marcy, danabeth, and indispensable party in this case. the claims against wood and restrictive covenant in the 2005 agreement is enforceable under industry." 2009 wl 159182, at *3. specifically, wood employees in pyrotechnics. to the propriety of the injunction enforcing the non-compete 2843 (1997), for the proposition that stock ownership does not specialized training from the pyrotechnic guild international testified that pyrotecnico was a wholly-owned subsidiary of c. investors acquired the remaining 50% of the stock. one of those our jurisdiction to hear cases in diversity arises under 28 body of pennsylvania case law holding that goodwill and civ. p. 65(c). however, with no party having stephen vitale, pyrotecnico's manager, in october 2007 proposals and before and after fireworks shows, wood was in based on this record, this court sua sponte noted the hands-on experience and application of these skills by helping 5 2. a non-solicitation provision proscribing wood partners. swiger, 540 f.3d at 182. agree. that would benefit competitors. see victaulic co., 499 f.3d at [the jurisdiction spoiler] from the litigation." id. at 830. on holding turns on whether the intentions of the parties to the that undergoes a substantial change in stock ownership is a absence of subject matter jurisdiction. change in the corporate identity of his employer." id. at 759. rule for determining the citizenship of a limited liability company, has a single member: pyrotecnico of louisiana, llc, see caterpillar inc. v. lewis, 519 u.s. 61, 75 (1996) ("once a responsible for preparing business proposals, which required subject matter jurisdiction over this action, a federal court against wood, intentional interference with existing contractual zambelli paid for wood to become a certified trainer for the business interest as required by pennsylvania law. third, they that a defendant deserves protection against a reasoning is unpersuasive in two regards. first, this language in relief is therefore available from both parties, albeit in separate preliminary injunction . . . only if the movant gives security in an employee] would be able to avoid utilizing the confidential diversity jurisdiction purposes. we will do so here in the hope 8 employment contract "is personal to the performance of both the customer(s) or client(s) of zambelli within the indiana state university. wood also had prior pyrotechnics 1971). nature of zambelli, was displeased with the change in fed. r. civ. pr. 19(b). applying rule 19(b), we have held that preliminary injunction, the district court stated: restricted activities because the agreement, as written, "would wright, 2 f. supp. 2d 701 (e.d. pa. 1998), observed that an injunction, which provided: well as the setup and use of the zambelli systems. wood gained choreographers in connection with some of its highest profile 1606 carmody court also upheld the durational and geographic restrictions contained wood also argues that the district court improperly3 raised on appeal and we do not address it here. since his employment with pyrotecnico, wood and pyrotecnico wood argued in the district court that there was not1 zambelli and wood was enforceable under pennsylvania state erroneous in the sense that it would not have been david g. oberdick matthew wood; 4. a provision that wood provide zambelli with 27.) certainly for purposes of this appeal, which is limited only on january 21, 2009. zambelli fireworks mfg. co., inc. v. 3 first refusal to purchase outstanding stock from other court would hold that the transfer of some or all of the stock of vacate the injunction and remand with instructions to impose obtained an associate's degree in technical theater from d/b/a zambelli fireworks internationale ("zambelli") is one of that, in contrast to an asset purchase, neither a 100 percent under the laws of pennsylvania, with its principal place of see carden v. arkoma assocs., 494 u.s. 185, 200 (1990) required by federal rule of civil procedure 65(c), we will d. sale is not a change in the corporate entity. a change in conspiracy claims against pyrotecnico alleging wood was a co- number of provisions, including: 23 wood and pyrotecnico. zambelli sought, inter alia, to enforce 235. a business' goodwill entitled to protection is that which we therefore hold that a district court lacks discretion likewise, the district court found that wood received pittsburgh, pa 15219 entity). the court concluded that the post-sale employer could in response, wood relies primarily on hess for the although the enforcement action was asserted against2 contact with zambelli clients. both in preparing business "wood's specialized training, knowledge and skill . . . acquired business interest." 2009 wl 159182, at *10. second, the 2007 stock sale effected a change of the zambelli corporate as wood assumed increasing responsibilities in the person is deemed to be a citizen of the state where he is jurisdiction, all parties agree that the suit cannot proceed with overwhelmingly in favor of the party seeking the injunction" prior experience with stage pyrotechnics and home fireworks, he to comply with the requirements of rule 65(c), and remand to employment with zambelli; and mary c. mcginley parties are "`[p]ersons who not only have an interest in the of assets." id. at 922. court held that wood's "significant raise . . . contemporaneous under a new name, later sought to enforce the terms of an