Officemax Inc. v. County Qwick Print Inc.
| Decision Date | 08 November 2010 |
| Docket Number | No. CV–10–110–B–W.,CV–10–110–B–W. |
| Citation | 751 F.Supp.2d 221 |
| Parties | OFFICEMAX INCORPORATED, Plaintiff,v.COUNTY QWICK PRINT, INC., d/b/a/ CQP Office Solutions, et al., Defendants. |
| Court | U.S. District Court — District of Maine |
OPINION TEXT STARTS HERE
John B. Flood, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Washington, DC, Kindra L. Hansen, Officemax Incorporated, Boise, ID, Russell Pierce, Norman, Hanson & Detroy, Portland, ME, for Plaintiff.Edward W. Gould, Joseph M. Bethony, Gross, Minsky & Mogul, P.A., Bangor, ME, for Defendants.
ORDER ON MOTION FOR PRELIMINARY INJUNCTION AND MOTIONS TO DISMISS
Following an extensive testimonial hearing and briefing, the Court concludes that the individual Defendants, who are former employees of an office supply and service business, are bound by the terms and conditions of noncompetition agreements and the Court enjoins the individual Defendants from violating those agreements. The Court is unpersuaded that the individual Defendants violated the terms of their confidentiality agreements and it declines to enjoin their use of confidential information and to find that they violated the Maine Trade Secrets Act. The Court finds no legal basis to enjoin Defendant corporation. Finally, the Court denies the Defendants' motion to dismiss.
I. STATEMENT OF FACTS
On March 18, 2010, OfficeMax filed a complaint in this Court claiming that County Qwik Print, Mr. Levesque, and Mr. Rattray had breached Confidential Information and Noncompetition Agreements (the Agreements) and had violated Maine's Uniform Trade Secrets Act. Compl. (Docket # 1). OfficeMax sought injunctive relief and actual and exemplary damages against the Defendants. Id. at 14–15.
On March 19, 2010, OfficeMax moved for a temporary restraining order (TRO). Pl.'s Mot. for TRO and Prelim. Inj. (Docket # 6). On April 2, 2010, OfficeMax filed an ex parte motion for consideration of its motion for TRO. Pl.'s Mot. for Ex Parte Consideration of its Mot. for TRO (Docket # 11). At a telephone conference of counsel, the Magistrate Judge ordered the Defendants to respond to the motion for TRO by April 15, 2010. Report of Hearing and Order Re: Scheduling at 3 (Docket # 15). On April 13, 2010, the Defendants filed motions to dismiss and on April 15, 2010, they responded to the motion for TRO. Defs.' Mot. to Dismiss Pl.'s Compl. for TRO, Injunctive Relief and Damages (Docket # 16); Def.'s Mot. to Dismiss Pl.'s Compl. for TRO, Injunctive Relief, and Damages (Docket # 17); Defs.' Opp'n to Pl.'s Mot. for TRO and Prelim. Inj. (Docket # 18). OfficeMax responded on April 16, 2010, to the Defendants' opposition to the motion for TRO. Pl.'s Reply to Defs.' Opp'n to Pl.'s Mot. for TRO and Prelim. Inj. (Docket # 19). On May 4, 2010, 709 F.Supp.2d 100 (D.Me.2010), the Court denied OfficeMax's motion for TRO. Order on Mot. for TRO (Docket # 23).
Still pending, however, were the Defendants' motions to dismiss and OfficeMax's motion for preliminary injunction. On May 14, 2010, OfficeMax replied to the Defendants' motions to dismiss. Defs.' Reply Mem. in Further Support of Their Mot. to Dismiss Pl.'s Compl. for TRO, Injunctive Relief, and Damages (Docket # 27). The Court held a two-day hearing on July 2 and 6, 2010, on the motion for preliminary injunction. Minute Entries (Docket # 35, 37). On July 21, 2010, OfficeMax filed a post-hearing brief. Pl.'s Post–Hearing Br. in Support of its Mot. for Prelim. Inj. (Docket # 49) ( Pl.'s Br.). On July 28, 2010, the Defendants filed a post-hearing brief. Defs.' Post–Hr'g Br. in Opp'n to Pl.'s Mot. for Prelim. Inj. (Docket # 54) ( Defs.' Br.). On August 2, 2010, OfficeMax filed a reply brief. Pl.'s Reply to Defs.' Post–Hr'g Br. in Opp'n to Pl.'s Mot. for Prelim. Inj. (Docket # 55) ( Pl.'s Reply ).
After attempting to resolve the matter by settlement conference, on August 18, 2010, the parties jointly informed the Court that negotiations had reached an impasse and that further negotiations were unlikely to result in a settlement. Jt. Report on Status Re: Settlement Negotiations (Docket # 62). On October 12, 2010, OfficeMax moved for a status conference, requesting that the Court apprise the parties of the status of its motion for preliminary injunction and the status of a scheduling order, and reminding the Court that “Plaintiff has continued to lose a significant amount of business to Defendants.” Pl.'s Req. for Status Conf. (Docket # 63).1
In denying OfficeMax's motion for TRO, the Court determined that “a noncompetition agreement may be assigned with the consent of the employee to a successor business and may be assumed upon merger by another successor business....” Order on Mot. for TRO at 1. However, it declined to issue a TRO since OfficeMax failed to fulfill the requirements for immediate injunctive relief. Id.
1. The OfficeMax Case
OfficeMax began its evidentiary presentation by reading into the record multiple excerpts of the depositions of Dana Rattray and David Levesque. Tr. of Proceedings (Docket # 40, 41) ( Tr.).
At his deposition, Mr. Rattray admitted that since he left OfficeMax, he had solicited some of his former OfficeMax customers. See Rattray Dep. Excerpt at 2.3 He also confirmed that Mr. Levesque was aware that he was soliciting former OfficeMax customers, and did not tell him not to do so. Id. at 3–4. He agreed that he did not intend to stop soliciting former OfficeMax customers unless a court ordered him to stop. Id. at 4. Mr. Rattray was asked about an email he sent on February 11, 2010, to Jean Weeks, a former OfficeMax customer, soliciting business from Ms. Weeks' employer Hamlin Associates in Parkman, Maine. Id. at 5–6. He confirmed that he sent the email to Ms. Weeks but, despite aggressive questioning from OfficeMax counsel, denied that the reference to aggressive pricing in the email was a reference to OfficeMax pricing. Id. at 6–8. Based on an email from Mr. Rattray to Mary Ellen Pate on February 1, 2010, Mr. Rattray agreed that he had solicited the Department of Finance and Accounting Services, a former OfficeMax customer, on Friday, January 29, 2010 while he was working at County Qwik Print. Id. at 10–11. Mr. Rattray reviewed a list of his top twenty-five OfficeMax accounts and conceded that he has called on most, but not all of them while employed at County Qwik Print. Id. at 13–17. Finally, Mr. Rattray acknowledged that if he received a price quote from County Qwik Print's office products supplier, he would not share that quote with OfficeMax. Id. at 18–20.
David Levesque admitted that, at some point after he was terminated by OfficeMax, he began selling office supplies to customers on behalf of County Qwik Print. Levesque Dep. Excerpt at 1. He thought he began selling sometime in December 2009. Id. at 2. He also admitted that, since leaving OfficeMax, he has sold office supplies to former OfficeMax customers. Id. at 4–6. He agreed that he did not intend to stop selling office supplies to former OfficeMax customers unless a court ordered him to do so. Id. at 7. Mr. Levesque testified that, as far a confidential OfficeMax information was concerned, he told Mr. Rattray that “OfficeMax stuff stays at OfficeMax.” Id. at 9. Mr. Levesque was questioned about how he arrives at a price to quote to County Qwik Print customers and he said that, after receiving his wholesaler's price, he sets his price by “the seat of our pants.” Id. at 12. He even said that County Qwik Print did not track its profit but that it had recently purchased software to allow it to do so. Id. at 15–17. He was questioned extensively about a three-page list of products with assigned dealer cost and handwritten numbers. Id. at 18–27.
Jason Sullivan is the Senior Security Engineer for OfficeMax. Tr. 34:8–17. Mr. Sullivan described the various computer systems at OfficeMax and how employees access the OfficeMax system, and confirmed that there are various levels of access accorded different employees.4 Id. 37:2–7; 38:3–6. He emphasized that OfficeMax goes to great lengths to keep customer information confidential. Id. 38:14–19.
On cross-examination, Mr. Sullivan conceded that the customer names in OfficeMax's secured system would likely be available in a local phonebook. Id. 40:12–24. He also admitted that he could not be certain that, even though Messrs. Levesque and Rattray had access to OfficeMax's internal programs, either of them had ever actually used them. Id. 41:11–20.
Rick Theriault is the supervisor technician/service manager of the Caribou, Maine office for OfficeMax. Id. 45:9–12. Mr. Theriault confirmed that, in the fall of 2009, OfficeMax had undergone a sales-force reorganization, and as a consequence, Mr. Levesque “is no longer working for OfficeMax.” Id. 45:13–22. Mr. Theriault said that Mr. Levesque had mentioned several times that he “never did sign” a noncompetition agreement. Id. 46:1–2. In late fall 2009, Mr. Levesque mentioned to Mr. Theriault that if he was terminated, Mr. Levesque “might have to end up having to, you know, sell office products because that's all he's ever known and ever done.” Id. 46:3–9. Mr. Theriault confirmed that Mr. Levesque left OfficeMax in November 2009. Id. 46:17–19. After Mr. Levesque left, Mr. Theriault began to visit OfficeMax customers “trying to keep them with our business.” Id. 47:6–13. After Dana Rattray left OfficeMax, the Caribou office of OfficeMax began seeking a sales representative replacement and as of July 2010, had only recently hired a sales representative to replace Mr. Rattray. Id. 47:19–23; 48:1–15.
Mr. Theriault testified that, while he was visiting an OfficeMax customer in December 2009, the customer informed Mr. Theriault that Mr. Levesque had told the customer that he was going to be selling office products. 5...
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