MASS. AUDIOLOGY, LLC, d/b/a MAINE-LY HEARING, Plaintiff
CHESTER WHITTIER, Defendant
ORDER ON PLAINTIFF'S REQUEST FOR PRELIMINARY INJUNCTION
Before the court is plaintiff's motion for a temporary restraining order and a preliminary injunction. The court treats the motion as one for a preliminary injunction. See Clark v. Goodridge, 632 A.2d 125, 127 (Me. 1993) ("A hearing on a TRO may be treated as a hearing on a preliminary injunction ... when there is sufficient notice and when the parties are in a position to present evidence and legal arguments for or against a preliminary injunction.").
Plaintiff seeks to enjoin defendant from the following:
1. breaching his employment agreement;
2. competing with plaintiff within a ten mile radius of Scarborough, Maine or another business location of plaintiff;
3. interfering with, soliciting, contacting, or calling upon, or attempting to interfere with, solicit, contact, or call upon plaintiff's customers and accounts; and misappropriating or using, or threatening to misappropriate or use, any of plaintiff's confidential and proprietary information and trade secrets.
Plaintiff seeks to compel defendant to do the following:
1. preserve, protect against the disclosure of, and maintain the confidentiality of plaintiffs confidential proprietary information and trade secrets;
2. turn over to plaintiff immediately any and all such confidential and proprietary information and trade secrets in his possession, custody, or control; and
3. provide a full accounting of all contacts defendant has had with plaintiff's customers after the termination of his employment with plaintiff for his own benefit or the benefit of another party other than plaintiff.
Non-testimonial hearing was held on June 1, 2015. Although additional facts were presented by counsel during argument, the court bases this decision on the fairly sparse record provided, which includes the affidavit of plaintiff's Vice President, Michael Fellman and attachments; the affidavit of plaintiff's receptionist and administrator, Angela York; and the affidavit of defendant. Plaintiff filed no reply affidavit with its reply memorandum.
The court must first decide whether to apply Maine or Massachusetts law regarding the standard for granting a preliminary injunction. "A court usually applies its own local law rules prescribing how litigation shall be conducted even when it applies the local law rules of another state to resolve other issues in the case." Restatement (Second) of Conflict of Laws § 122 (1971). Because the grant or denial of a preliminary injunction impacts the substantive rights of the parties involved, the court will apply the Massachusetts standard for granting a preliminary injunction. See Ocean Spray Cranberries v. Pepsico, Inc., 160 F.3d 58, 60-61 (1st Cir. 1998); see also Arthur D. Wolf, Preliminary Injunction Standards in Massachusetts State and Federal Courts, 35 W. New Eng. L. Rev. 1, 53 (2013) (arguing that preliminary injunctions affect substantive rights and that federal courts should apply state standards to motions for preliminary injunction in cases where state law governs).
Under Massachusetts law,
A party seeking a preliminary injunction must show that (1) success is likely on the merits; (2) irreparable harm will result from denial of the injunction; and (3) the risk of irreparable harm to the moving party.  ou ...