ORDER ON DEFENDANT'S MOTION FOR SUMMARY
the court is defendant Todd Wolfs motion for partial summary
judgment on count II of his counterclaim against plaintiff
DSCI, LLC, in which defendant asks the court to declare that
the non-compete agreement does not prohibit defendant from
participating in and /or bidding in response to requests for
information (RFIs) and requests for proposals (RFPs). For the
following reasons, the motion is denied. FACTS
is in the business of providing telephone, internet, and
computer services. (Pl.'s Addt'l S.M.F. ¶ 1.) In
October 2014, plaintiff purchased the assets of Unified
Technologies, Inc. (Unified) for more than $1 million.
(Id. ¶ 2.) These assets included all of
Unified's contracts, as well as its good will.
(Id. ¶¶ 3, 5.) The purchase and sale
agreement identified approximately 200 customers who had
contracts with Unified at the time of the sale. (Id.
¶ 4.) Of these customers, 46 were non-profit,
educational, governmental entities, or quasi-governmental
entities. (Id. ¶ 9.)
time of the sale, defendant was a shareholder and employee of
Unified, as well as its president. (Id. ¶ 6.)
Defendant received approximately $500, 000.00 from the sale.
(Id. ¶ 7.) On October 1, 2014, the
parties executed a non-competition and non-
Standard of Review
judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any . . . show that there is no
genuine issue as to any material fact." M.R. Civ. P.
56(c). "A material fact is one having the potential to
affect the outcome of the suit." MP Assocs. v.
Liberty, 2001 ME 22, ¶ 12, 771 A.2d 1040.
"A genuine issue exists when sufficient
evidence supports a factual contest to require a factfinder
to choose between competing versions of the truth at
trial." Burdzel v. Sobus, 2000 ME 84, ¶ 6,
750 A.2d 573. In contract disputes, the "test is whether
the moving party presented the court with undisputed facts
which would necessarily be determinative of the meaning of
the contract." Tondreau v. Sherwin-Williams
Co., 638 A.2d 728, 730 (Me. 1994) (citation omitted).
Motion for Partial Summary Judgment
Interference and Solicitation
argues that, if the RFIs and RFPs are initiated by the
entities, and not by defendant, defendant's response to
these requests cannot be viewed as intentional interference
or solicitation under the agreement. (Def.'s Mot. Summ.
J. 2-4.) Plaintiff counters that defendant's response to
RFIs and RFPs from plaintiff's customers would interfere
with plaintiff's business relationships by soliciting its
customers to instead form a relationship with defendant's
company. (Pl.'s Opp'n Mot. Summ. J. 2-4.)
3(A) of the agreement provides in part that defendant shall
not, until October 2016, "intentionally interfere in any
material respect with the business relationships (whether
formed prior to or after the date of this Agreement) between
[plaintiff] and its Affiliates and customers or suppliers of
[plaintiff] and its Affiliates." solicitation agreement
(agreement), as well as an agent agreement. (Supp. S.M.F.
¶¶ 4-5.) Defendant was represented by counsel
during the negotiation of these agreements. (Pl.'s
Addt'l S.M.F. ¶ 15.) On September 8, 2015, plaintiff
terminated the agent agreement, effective October 8, 2015.
(Supp. S.M.F. ¶ 6.)
September 29, 2015, plaintiff filed a verified complaint, in
which plaintiff alleges one count of breach of contract.
Specifically, plaintiff alleges that defendant breached the
agreement by causing several of plaintiff's customers to
cancel their contracts with plaintiff and enter into a
business relationship with defendant's company, Wolf
Technology Group. In addition to the verified complaint,
plaintiff filed a motion for a temporary restraining order.
Defendant opposed the motion on October 16, 2015. On December
7, 2015, the court denied the motion, finding that plaintiff
had not demonstrated either irreparable injury or a
likelihood of success on the merits.
filed an answer and counterclaim on January 28, 2016. In the
counterclaim, defendant alleges two causes of action: count
I, breach of contract; and count II, declaratory judgment. In
count II, defendant seeks a declaratory judgment that the
agreement does not prohibit defendant from participating in
and/or bidding in response to RFIs and RFPs from non-profit,
educational, governmental, and quasi-governmental entities.
See 5 M.R.S. §§ 1825-B, 1825-D (2015).
February 22, 2016, defendant filed a motion for partial
summary judgment on count II of his counterclaim. Plaintiff
opposed the motion on March 14, 2016. Plaintiff filed an
opposing statement of material facts that admitted all of
defendant's facts and asserted 15 additional facts.
Defendant filed a reply on April 4, 2016. (Supp. S.M.F. ¶
4; Ex. A 2.) Similarly, section 3(C) provides that defendant
shall not "solicit or entice, or attempt to solicit or
entice, any clients or customers of [plaintiff] or its
Affiliates or potential clients or customers of [plaintiff]
and its Affiliates, for purposes of diverting their business