Surgical Sys., Inc. v. Niles

• Court: Superior Court of Maine
• Decided: September 14, 2011
• Docket: CUMcv-11-0302
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMB2RLAND, ss CIVIL ACTION . I?P~~~t ~ ~· cv-:;~o~ . SURGICAL SYSTEMS, INC.,

Plaintiff

v. ORDER ON MOTION FOR PRELIMINARY INJUNCTION STEVEN NILES,

Defendant

The plaintiff seeks injunctive relief against the defendant for alleged violations of

the parties' December 2008 Employment, Non-competition and Confidentiality

Agreement. The agreement provides that "in consideration of such employment,

wages, salary and other benefits in compensation for [the defendant's] services," the

parties agreed to specified conduct and restrictions.

The defendant was hired on January 1, 2009 and "was compensated with a base

salary of $50,000.00 in addition to 4% retention compensation and 8% growth bonus

commission for sales over the previous year." (Supp. O'Neill Aff.

2010, the defendant "was told that his compensation plan would be changing to

commission-only, effective with sales beginning February 1, 2010." (Id.

plaintiff's president states that changing sales and compensation plans is a common

practice in the industry of selling and supplying orthopedic and biologic implants and

devices to hospitals and surgical centers in Maine. (Id.

The unilateral change in compensation by the plaintiff was a material breach of

the parties' agreement. See Greany v. Dixon, 2007 Me. Super. LEXIS 203 (Aug. 30,

2007). Accordingly, the plaintiff has not shown a likelihood of success on the merits.

See Ingraham v. University of Maine, 441 A.2d 691, 693 (Me. 1982).

1 The entry is

The Plaintiff's Motion for Prelimi

Dated: September 14, 2011 cy Mills Justice, Superior Co

CV-11-0302

2 F COURTS md County ·eet, Ground Floor ME 04101

BRADFORD PATTERSHALL ESQ ,£) PETRUCCELLI MARTIN & HADDOW PO BOX 17555 PORTLAND ME 04112-8555

)URTS :ounty Ground Floor 04101

JULIA PITNEY ESQ DRUMMOND & DRUMMOND ONE MONUMENT WAY PORTLAND ME 04101