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WHITMIRE v. CORBEL & CO.

September 24, 1997

DONALD C. WHITMIRE, Plaintiff, against CORBEL & CO., Defendant.

John E. Sprizzo, United States District Judge.


The opinion of the court was delivered by: SPRIZZO

MEMORANDUM OPINION AND ORDER

SPRIZZO, D.J.:

 Pursuant to 28 U.S.C. ยง 2201, plaintiff Donald C. Whitmire ("Whitmire") brings the instant action against defendant Corbel & Co. ("Corbel"), seeking a declaratory judgment that certain of plaintiff's business activities do not violate the injunctive provisions of a consent judgment previously entered into between the parties. In the alternative, Whitmire seeks a modification of the consent judgment pursuant to Federal Rule of Civil Procedure 60 to permit him to operate his business. For the reasons that follow, the Court denies Whitmire's requests for a declaratory judgment and for modification of the consent judgment.

 BACKGROUND

 Corbel is a Florida corporation with its' principal office located in Jacksonville, Florida. See Joint Pre-Trial Order ("P.T.O.") P 2 at 2. Corbel's business is preparing customized pension and related documents for attorneys, pension consultants, actuaries and others. Id. P 3 at 2. Corbel offers its services through the mail or on-line. Id. In addition, Corbel also sells computer software to its clients, thus allowing them to prepare their own pension-related documents in-house. Id.

 From approximately March 1981 through August 1983, Corbel employed Whitmire, an attorney, as its general counsel. See P.T.O. P 4 at 3. Whitmire's duties included consulting with Corbel's customers on technical issues, drafting particularized pension plans, and keeping Corbel's forms current with respect to changing tax and pension laws. See Transcript of Trial Record dated September 7, 11, 1995 ("Tr.") at 3-4. On August 28, 1981, Whitmire entered into an employment agreement with Corbel (the "Agreement"). See 1984 Complaint ("1984 Compl.") P 14 at 4. The Agreement prohibited Whitmire from disclosing Corbel's trade secrets and included a covenant against post-employment competition. *fn1" Id. P 16 at 4-6.

 Less than one year after he left Corbel's employ in August 1983, Whitmire joined Electronic Legal Publishers, Inc. ("ELP"), a newly formed corporation in New York that prepared and sold computer-generated pension plans and related documents. See Tr. at 3.

 In June 1984, Corbel filed suit in this Court against Whitmire and others, asserting claims of misappropriation of proprietary and confidential information, unfair competition, unfair trade practices, copyright infringement and breach of the secrecy and noncompetition provisions in the Agreement arising out of the business activities of ELP. See Corbel & Co. v. Donald C. Whitmire, et al., No. 84-8131, slip op. (S.D.N.Y. June 10, 1985). On June 10, 1985, the parties entered into a Stipulation of Settlement and Judgment (the "1984 Judgment") which, inter alia, prohibited Whitmire as a principal, employee or in any other capacity, from engaging in any business in competition with Corbel that furnishes computer-generated pension documents to attorneys, pension professionals and/or actuaries. *fn2" See 1993 Complaint ("1993 Compl."), Exh. A (1984 Judgment) at 2; Tr. at 103-105.

 The 1984 Judgment specifically delineated the following activities which are deemed not to be in competition with Corbel:

 
(a)(i) engaging in the private practice of law for any individual or entity not engaged in a Business in competition with Corbel;
 
(a)(ii) engaging in the preparation of Documents for pension consultants, actuaries or insurance companies not engaged in a Business in competition with Corbel or the rendering of pension administration and actuarial services;
 
(a)(iii) engaging in the preparation of computer programs and providing computer consulting services for any individual or entity not engaged in a Business in competition with Corbel.

 See 1993 Compl. Exh. A (1984 Judgment) at 2; Tr. at 88-89. In addition, the judgment provides that Corbel's computer systems, systems design, customer information, and cost and price information are confidential, proprietary information and trade secrets. See 1993 Compl. Exh. A (1984 Judgment) at 3; P.T.O. P 1 at 9.

 From approximately June 1985 through May 1993, Whitmire was exclusively engaged in the private practice of law, preparing pension and pension-related documents for his clients on a word processor. See Tr. at 9-12. In May 1993, Whitmire became President and sole shareholder of AccuDraft, Ltd., a New York corporation. *fn3" See Tr. at 12. Whitmire, for AccuDraft, purchases commercially available document assembly software programs, modifies the software, and sells it to AccuDraft's clients, which include attorneys, pension consultants, actuaries and others. Id. These clients are then able to prepare in-house qualified pension and profit sharing plans for their own customers using AccuDraft's modified software. See 1993 Compl. P 11 at 15. For those clients that do not wish to prepare their own documents, ...


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