STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION / Docket No. CV-16-318
CHRISTOPHER WENGER,
Plaintiff
V. ORDER ON REQUEST FOR PRELIMINARY INJUNCTION JOSHUA GOULETTE,
Defendant
Before the court is plaintiff Christopher Wenger's motion for preliminary
injunction. Defendant Joshua Goulette was served on August 4, 2016 with the
summons and complaint and the motion for preliminary injunction. He has not filed an
answer to the complaint or response to the motion.
In his complaint, plaintiff seeks injunctive relief and attorney's fees. (Pl.'s
Compl. 3.) Injunctive relief is not an independent cause of action. See America v.
Yamartino, No. BCD-CV-11-41, 2012 Me. Super. LEXIS 19, at *33 (Mar. 19, 2012). It is a
remedy that may be awarded if plaintiff succeeds on the merits of his cause of action.
Id. Because no cause of action has been pleaded, no remedy can be awarded. Further,
plaintiff cannot show a likelihood of success on the merits of a cause of action that has
not been pleaded. See mgraham v. Univ. of Me., 441 A.2d 691, 693 (Me. 1982).
The entry is
Date: September 13, 2016 ncy Mills Justice, Superio STATE OF MAINE Cumberland. ss. Clerk's Office
1 SEP 13 2016 RECEIVED STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. CV-16-31V
V. ORDER ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION JOSHUA GOULETTE,
Before the court is plaintiff's motion for a preliminary injunction. Plaintiff seeks to enjoin
defendant from allegedly violating the parties' non-compete agreement. For the following
reasons, the motion is denied.
FACTS
According to the parties' affidavits, on August 7, 2015, the parties entered into an
agreement under which defendant agreed to perform painting and construction work for plaintiff.
(Pl.'s Am. Aff. ~ 3; Def. ' s Aff. ! 9.) Section 8 of the agreement provided that defendant would
not perform work for any of plaintiff's customers, other than for the benefit of plaintiff, during
the term of the agreement and for ten years after the agreement. (Pl.' s Am . Aff. ! 4)
Defendant worked for plaintiff for another one or two months after signing the
agreement. (Pl. ' s Third Aff. ~ 8; Def. 's Aff. ~ 11 .) After defendant stopped working for plaintiff,
defendant worked on his own for Port Properties, one of plaintiff's customers. (Pl.'s Am. Aff. !
21; Def.'s Aff. ~ 13.) Plaintiff alleges that, as a result of defendant's employment with Port
Properties , plaintiff has lost thousands of dollars per month and his goodwill has been damaged .
(Pl. 's Am . Aff. !! 9-10 , 19 .)
1 On August 16, 2016, plaintiff filed a complaint seeking injunctive relief. On September
13, 2016, the court denied plaintiff's request for injunctive relief on the ground that he had not
pleaded a cause of action. Plaintiff then filed an amended complaint on September 19, 2016. In
the amended complaint, plaintiff alleged: count I, breach of contract (damages); count II, breach
of contract (specific performance); and count III, breach of contract (injunctive relief).
Plaintiff filed an amended motion for a preliminary injunction on September 19, 2016.
Defendant filed his opposition to the motion on October 12, 2016. Plaintiff filed a reply on
October 20, 2016.
DISCUSSION
1. Standard of Review
A party seeking a preliminary injunction must show that: (1) it will suffer irreparable
injury if the injunction is not granted; (2) the injury outweighs any harm that granting the
injunction would inflict on the other party; (3) it has a likelihood of success on the merits; and
(4) the public interest will not be adversely affected by granting the injunction. Ingraham v.
Univ. of Me., 441 A.2d 691, 693 (Me. 1982). "Failure to demonstrate that any one of these
criteria are met requires that injunctive relief be denied." Bangor Historic Track, Inc. v. Dep ' t of
Agric., Food & Rural Res., 2003 ME 140, '1 10,837 A.2d 129.
2. Motion for Preliminary Injunction
A. Irreparable Harm
Plaintiff has not shown he will suffer irreparable harm. He states in conclusionary terms
only that he has lost good will. (Pl.'s Am. Aff." 10, 19.) Speculative claims of loss of good
will do not constitute irreparable injury. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bishop,
839 F. Supp. 68, 75 (D. Me. 1993). The fact that the parties' agreement provides that defendant
2 acknowledged that plaintiff would be irreparably harmed if the agreement were violated is not
dispositive. (Pl.'s Am. Aff. , 17); see Saga Commc'ns of New England. lac . v. Crocker, 1995
Me. Super. LEXIS 403, at *3-7 (Nov. 9, 1995); Butterfield v. Dep 't of Human Servs., 1991 Me.
Super. LEXIS 23, at *4 (Jan. 17, 1991) (evidence in the record to support agreement that plaintiff
class would suffer irreparable harm). Plaintiff must show that he will in fact suffer an irreparable
harm, which he has failed to do. See Ingraham, 441 A.2d at 693 (plaintiff bears burden of
proving criteria for injunctive relief).
B. Likelihood of Success
On this record, plaintiff has not shown a likelihood of success on the merits. A contract
that is against public policy is void and unenforceable. Lehigh v. Pittston Co ., 456 A.2d 355, 361
(Me. 1983). The Law Court has "long recognized that non-competition agreements are contrary
to public policy and will be enforced only to the extent that they are reasonable and sweep no
wider than necessary to protect the business interests in issue." Lord v. Lord, 454 A.2d 830,834
(Me. 1983).
The parties' agreement appears excessive. (Agreement , 8.) The parties' agreement
provides for a ten year term. (Agreement, 8.) Plaintiff now purports to limit the duration of the
agreement to five years instead of ten. (Pl.'s Mem. 2; Pl.'s Am. Aff., 16.) There is no evidence
on this record that shows either term is "reasonably related to protecting recognized legitimate
business interests" of plaintiff. Chapman & Drake v. Harrington, 545 A.2d 645,648 (Me. 1988);
see Everett J. Prescott, Inc. v. Ross, 383 F. Supp. 2d 180, 190-91 (D. Me. 2005).
Plaintiff does not deny defendant's allegation that he signed the agreement after
employment had commenced and was told he would lose his job if he did not sign. (Def.'s Aff.
11 9-10; Pl.'s Third Aff., 7 .) Defendant worked with plaintiff for fewer than two months after
3 signing the agreement. (Pl.'s Third Aff. ~ 8; Def.'s Aff. ~ 11.) Although continued employment
can be consideration for a non-competition covenant, see Prescott, 383 F. Supp. 2d at 191, fewer
than two months employment as consideration for five or ten years of non-competition is not
reasonable.
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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION / Docket No. CV-16-318
CHRISTOPHER WENGER,
Plaintiff
V. ORDER ON REQUEST FOR PRELIMINARY INJUNCTION JOSHUA GOULETTE,
Defendant
Before the court is plaintiff Christopher Wenger's motion for preliminary
injunction. Defendant Joshua Goulette was served on August 4, 2016 with the
summons and complaint and the motion for preliminary injunction. He has not filed an
answer to the complaint or response to the motion.
In his complaint, plaintiff seeks injunctive relief and attorney's fees. (Pl.'s
Compl. 3.) Injunctive relief is not an independent cause of action. See America v.
Yamartino, No. BCD-CV-11-41, 2012 Me. Super. LEXIS 19, at *33 (Mar. 19, 2012). It is a
remedy that may be awarded if plaintiff succeeds on the merits of his cause of action.
Id. Because no cause of action has been pleaded, no remedy can be awarded. Further,
plaintiff cannot show a likelihood of success on the merits of a cause of action that has
not been pleaded. See mgraham v. Univ. of Me., 441 A.2d 691, 693 (Me. 1982).
The entry is
Date: September 13, 2016 ncy Mills Justice, Superio STATE OF MAINE Cumberland. ss. Clerk's Office
1 SEP 13 2016 RECEIVED STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. CV-16-31V
V. ORDER ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION JOSHUA GOULETTE,
Before the court is plaintiff's motion for a preliminary injunction. Plaintiff seeks to enjoin
defendant from allegedly violating the parties' non-compete agreement. For the following
reasons, the motion is denied.
FACTS
According to the parties' affidavits, on August 7, 2015, the parties entered into an
agreement under which defendant agreed to perform painting and construction work for plaintiff.
(Pl.'s Am. Aff. ~ 3; Def. ' s Aff. ! 9.) Section 8 of the agreement provided that defendant would
not perform work for any of plaintiff's customers, other than for the benefit of plaintiff, during
the term of the agreement and for ten years after the agreement. (Pl.' s Am . Aff. ! 4)
Defendant worked for plaintiff for another one or two months after signing the
agreement. (Pl. ' s Third Aff. ~ 8; Def. 's Aff. ~ 11 .) After defendant stopped working for plaintiff,
defendant worked on his own for Port Properties, one of plaintiff's customers. (Pl.'s Am. Aff. !
21; Def.'s Aff. ~ 13.) Plaintiff alleges that, as a result of defendant's employment with Port
Properties , plaintiff has lost thousands of dollars per month and his goodwill has been damaged .
(Pl. 's Am . Aff. !! 9-10 , 19 .)
1 On August 16, 2016, plaintiff filed a complaint seeking injunctive relief. On September
13, 2016, the court denied plaintiff's request for injunctive relief on the ground that he had not
pleaded a cause of action. Plaintiff then filed an amended complaint on September 19, 2016. In
the amended complaint, plaintiff alleged: count I, breach of contract (damages); count II, breach
of contract (specific performance); and count III, breach of contract (injunctive relief).
Plaintiff filed an amended motion for a preliminary injunction on September 19, 2016.
Defendant filed his opposition to the motion on October 12, 2016. Plaintiff filed a reply on
October 20, 2016.
DISCUSSION
1. Standard of Review
A party seeking a preliminary injunction must show that: (1) it will suffer irreparable
injury if the injunction is not granted; (2) the injury outweighs any harm that granting the
injunction would inflict on the other party; (3) it has a likelihood of success on the merits; and
(4) the public interest will not be adversely affected by granting the injunction. Ingraham v.
Univ. of Me., 441 A.2d 691, 693 (Me. 1982). "Failure to demonstrate that any one of these
criteria are met requires that injunctive relief be denied." Bangor Historic Track, Inc. v. Dep ' t of
Agric., Food & Rural Res., 2003 ME 140, '1 10,837 A.2d 129.
2. Motion for Preliminary Injunction
A. Irreparable Harm
Plaintiff has not shown he will suffer irreparable harm. He states in conclusionary terms
only that he has lost good will. (Pl.'s Am. Aff." 10, 19.) Speculative claims of loss of good
will do not constitute irreparable injury. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bishop,
839 F. Supp. 68, 75 (D. Me. 1993). The fact that the parties' agreement provides that defendant
2 acknowledged that plaintiff would be irreparably harmed if the agreement were violated is not
dispositive. (Pl.'s Am. Aff. , 17); see Saga Commc'ns of New England. lac . v. Crocker, 1995
Me. Super. LEXIS 403, at *3-7 (Nov. 9, 1995); Butterfield v. Dep 't of Human Servs., 1991 Me.
Super. LEXIS 23, at *4 (Jan. 17, 1991) (evidence in the record to support agreement that plaintiff
class would suffer irreparable harm). Plaintiff must show that he will in fact suffer an irreparable
harm, which he has failed to do. See Ingraham, 441 A.2d at 693 (plaintiff bears burden of
proving criteria for injunctive relief).
B. Likelihood of Success
On this record, plaintiff has not shown a likelihood of success on the merits. A contract
that is against public policy is void and unenforceable. Lehigh v. Pittston Co ., 456 A.2d 355, 361
(Me. 1983). The Law Court has "long recognized that non-competition agreements are contrary
to public policy and will be enforced only to the extent that they are reasonable and sweep no
wider than necessary to protect the business interests in issue." Lord v. Lord, 454 A.2d 830,834
(Me. 1983).
The parties' agreement appears excessive. (Agreement , 8.) The parties' agreement
provides for a ten year term. (Agreement, 8.) Plaintiff now purports to limit the duration of the
agreement to five years instead of ten. (Pl.'s Mem. 2; Pl.'s Am. Aff., 16.) There is no evidence
on this record that shows either term is "reasonably related to protecting recognized legitimate
business interests" of plaintiff. Chapman & Drake v. Harrington, 545 A.2d 645,648 (Me. 1988);
see Everett J. Prescott, Inc. v. Ross, 383 F. Supp. 2d 180, 190-91 (D. Me. 2005).
Plaintiff does not deny defendant's allegation that he signed the agreement after
employment had commenced and was told he would lose his job if he did not sign. (Def.'s Aff.
11 9-10; Pl.'s Third Aff., 7 .) Defendant worked with plaintiff for fewer than two months after
3 signing the agreement. (Pl.'s Third Aff. ~ 8; Def.'s Aff. ~ 11.) Although continued employment
can be consideration for a non-competition covenant, see Prescott, 383 F. Supp. 2d at 191, fewer
than two months employment as consideration for five or ten years of non-competition is not
reasonable.
Finally, the stipulated damages are $5,000.00 per week. The parties generally earned less
than $1,000.00 per week. (Agreement~ 8; Def.' s Mem. 3 .)
Further, "a former employee may not, absent unusual circumstances, be prevented from
entering into the practice of a business that requires no specialized training and does not rely on
unique business methods or trade secrets acquired while serving the former employer." Lord,
454 A.2d at 834 (citing Roy v. Bolduc, 140 Me. 103, 107, 34 A.2d 479,481 (1943)). There is no
allegation on this record that defendant acquired unique business methods or trade secrets while
working for plaintiff.
CONCLUSION
An injunction is "an extraordinary remedy only to be granted with utmost caution when
justice urgently demands it." Bar Harbor Banking & Trust Co. v. Alexander, 411 A.2d 74, 79
(Me. 1980) (citation omitted). A party who seeks the equitable remedy of an injunction must do
equity. See Peaslee v. Pedco. Inc., 414 A.2d 1206, 1208 (Me. 1980). Plaintiff has not
demonstrated irreparable harm or a likelihood of success on the merits. The court does not
consider the remaining two requirements. See Ingraham, 441 A.2d at 693 (party seeking
injunctive relief must prove each of the four criteria).
Plaintiff's Motion for a Preliminary loju ('
Date: November 10, 2016 Nancy