WEBSITE MANAGEMENT SYSTEMS, LLC, a Nevada Limited Liability Company v. Benjamin Daileda;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WEBSITE MANAGEMENT SYSTEMS,
LLC, a Nevada Limited Liability Company,
Plaintiff-Appellant,
and
KJR MANAGEMENT COMPANY, LLC,
Plaintiff,
v.
BENJAMIN DAILEDA; et al.,
Defendants-Appellees.
No. 20-15784
D.C. No. 2:20-cv-00213-JCM-BNW
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted November 20, 2020
Submission Vacated November 23, 2020
Resubmitted July 21, 2021
Pasadena, California
Before: PAEZ and OWENS, Circuit Judges, and ENGLAND,** Senior District
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Morrison C. England, Jr., United States Senior District
Judge for the Eastern District of California, sitting by designation.
FILED
AUG 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Judge.
Website Management Systems, LLC (“Appellant”) appeals from the district
court’s denial of its request for a preliminary injunction. We have jurisdiction
under 28 U.S.C. § 1292(a)(1), and we affirm.
Appellant’s business engages in search-engine optimization (“SEO”) for its
clients. SEO aims to increase visibility of a client’s website in the results of word
searches on Internet search engines. The individually named Defendants, who
formerly were employed by Appellant, left to form a competing SEO business,
Defendant Yes We Will, Inc. (“YWW”). Appellant then instituted the present
action and sought preliminary injunctive relief on grounds that 1) Defendants
misappropriated and are using its confidential and proprietary trade secrets,
including its processes for identifying customer leads and SEO methodologies; and
2) the individual Defendants are subject to non-competition agreements which
prevent them from competing with Appellant through YWW. The district court
denied the injunction, finding both that Appellant had failed to identify any
actionable trade secret and that the non-competition protection sought was likely
overbroad and unenforceable.
A preliminary injunction should ordinarily not issue where the probability of
success on the merits is low. Johnson v. Cal. State Bd. of Acct., 72 F.3d 1427,
1430 (9th Cir. 1995). The district court determined here that Appellant’s trade

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secret claim was not likely to succeed on the merits, and accordingly did not
warrant injunctive relief, because Appellant failed to identify any actual trade
secret.
We review that determination for an abuse of discretion, All. for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011), and find no such abuse
here. The district court found that none of the “processes” or “techniques”
identified by Appellant differed substantially from those generally employed in the
SEO industry such that they could comprise trade secrets, and that determination
was not an unreasonable one. Appellant was unable to articulate how any viable
trade secret was implicated before the district court or on appeal, despite being
afforded numerous opportunities to do so.
We turn to whether Defendants should have been preliminarily enjoined
from competing with Appellant, as provided in the non-competition agreements.
We conclude that the challenge to denial of preliminary injunctive relief as to that
claim is moot.1 The district court denied the requested injunction, which sought to
1 We vacated submission of this appeal pending the Nevada Supreme Court’s
resolution of Duong, M.D. v. Fielden Hanson Isaacs Miyada Robison Yeh, Ltd.,
478 P.3d 380 (Nev. 2020). In Duong, the Nevada Supreme Court held that if an
otherwise unenforceable noncompetition agreement contains a blue-penciling
provision, a court may blue-pencil the agreement. Id. at 381. The court did not
address whether NRS 613.195(5)—which requires courts to blue pencil
unenforceable noncompetition agreements—applies retroactively. The Nevada
Supreme Court filed its opinion in Duong on December 31, 2020, and Appellant
notified the court of the opinion on March 18, 2021.

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enjoin Defendants from “providing SEO services for one year,” because the
likelihood of success on the merits was questionable. At oral argument prior to
ruling on the motion for a preliminary injunction, the district court characterized
any injunction it would consider as being “for one year from the time that
[Defendants] left the company,” and counsel assented to that limitation. In
supplemental briefing to the district court, Appellant reiterated being
“comfortable” requesting a one-year period for the injunction.
Defendants left the employ of Appellant between December 20, 2019 and
January 3, 2020. Any one-year period of non-competition extending from those
dates expired not later than January 3, 2021. Generally, where events occur that
prevent an appellate court from granting any effective relief, an appeal should be
dismissed as moot. See, e.g., Matter of Combined Metals Reduction Co., 557 F.2d
179, 187 (9th Cir. 1977). This is because under Article III of the United States
Constitution, federal courts can “adjudicate only actual, ongoing cases or
controversies.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). Here,
because the one-year period for which an injunction was sought has expired, the
appeal of the breach of contract claim is now moot and is no longer subject to
adjudication.
AFFIRMED.

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