Plaintiff-Frank Bemis, Esq. and Joanne Simonelli, Esq.
Defendant Nolan Reichl, Esq.
D. Warren Justice, Superior Court
the court are two motions: (1) a motion for a preliminary
injunction filed by plaintiff UIG, Inc. with its complaint
and (2) a motion by defendant Ronald Guerin to dismiss a
portion of count I of UIG's complaint and to dismiss
counts II and III of UIG's complaint in their
action UIG contends that Guerin, a former
shareholder of UIG who sold bis shares in 2015. has violated
a restrictive covenant that prohibits him from soliciting UIG
customers for five years and permanently prohibits him from
disclosing UIG files and customer lists.
court will first address the motion to dismiss because, to
the extent that the complaint fails to state a claim, that
will affect UIG's entitlement to a preliminary
injunction, Legal Standard - Rule l2(b)(6)
purposes of a motion to dismiss, the material allegations of
the complaint must be taken as admitted. Ramsey v.
Baxter Title Co., 2012 ME 113 ¶ 2, 54 A.3d 710,
The complaint must be read in the light most favorable to the
plaintiff to determine if it sets forth elements of a cause
of action or alleges facts that would entitle plaintiff to
relief pursuant to some legal theory. Bisson v. Hannaford
Bros. Co., Inc., 2006 ME 131 ¶ 2, 909 A.2d 1010.
Dismissal is appropriate only when it appears beyond doubt
that the plaintiff is not entitled to relief under any set of
facts that he might prove in support of his claim. Moody
v. State Liquor & Lottery Commission, 2004 ME 20
¶ 7, 843 A.2d 43. However, a plaintiff may not proceed
if the complaint fails to allege essential elements of the
cause of action. See Potter, Prescott, Jamieson &
Nelson P. A. v. Campbell, 1998 ME 70 ¶¶ 6-7,
708 A.2d 283.
of UIG's complaint alleges that Guerin is a former
employee and shareholder of UIG who left UIG and sold his
shares back to UIG on September 22, 2015. He subsequently
began working at the Varney Agency, a UIG competitor.
to the Redemption and Stock Purchase Agreement that Guerin
signed upon his departure, part of the consideration he
received was based on his agreement that he remained subject
to certain restrictive covenants contained in a Second
Amended Shareholders Agreement that Guerin had entered on
January 1, 2010. The two covenants that UIG contends Guerin
has violated are the covenant in section 14(b) and the
covenant in section 14(c).
14(b) of the shareholder agreement provides that the parties
agree the files and records of UIG are "confidential and
in some respects constitute trade secrets" and shall not
be disclosed to any outside person or organization.
14(c) provides that the parties agree that if a party's
employment with UTG terminates, he or she will not for the
next five years directly or indirectly solicit any business
from persons or organizations that were customers of UIG
during the last two years of the party's employment with
UIG or that were being actively solicited during the last
year of the party's employment with UIG.
shareholders agreement contains an additional restrictive
covenant prohibiting a party from engaging in any business in
competition with UIG for one year after the termination of
employment. That provision expired in September 2016, and UIG
does not allege that provision was violated.
II of UIG's complaint alleges that Guerin has violated
the Maine Uniform Trade Secrets Act by using UIG trade
secrets, including confidential customer information, at the
Varney Agency. Count III of ...