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Lesco, Inc. v. Masone

July 27, 2006

LESCO, INC., PLAINTIFF,
v.
JAMES V. MASONE AND PATRICK J. CASH, DEFENDANTS.



The opinion of the court was delivered by: Platt, District Judge.

MEMORANDUM and ORDER

Plaintiff Lesco, Inc., ("Lesco" or "the Company") moves this Court to (i) find Defendants James V. Masone ("Masone") and Patrick J. Cash ("Cash") in civil contempt, (ii) impose equitable and monetary sanctions on Defendants, and (iii) expedite discovery in these proceedings. Lesco argues that Defendants wilfully violated this Court's Final Judgment on Consent ("Consent Judgment"), entered on December 7, 2005. Masone and Cash respond that Plaintiff did not submit any evidence that Defendants violated the Consent Judgment, wilfully or otherwise, and they request an award of attorney's fees for defending this proceeding. For the following reasons, this Court DENIES both Plaintiff's Motion and Defendants' request for attorney's fees.

INTRODUCTION

1. The Plaintiff

Lesco is a manufacturer and seller of products for turf care professionals, including lawn and turf care equipment, seed, fertilizer, irrigation systems, and pest control products. (Id. ¶ 1.) Lesco's customers include golf courses, athletic fields, and professional lawn care companies that maintain landscapes around apartments, office complexes, government buildings, cemeteries and private homes. (Id. ¶ 1.)

There are about 135 golf courses on Long Island, of which Plaintiff services about 90. (05-3207, Transcript of Hearing, May 23, 2006 ("Tr.") at 60.) On Long Island, the golf course turf care industry is relatively small and is highly competitive. (Id. ¶ 2.)

Lesco has developed customer relationships through use of sales representatives and Lesco's "Store-on-Wheels(r)" ("SOW") program, in which sales representatives visit golf course superintendents in trucks containing various Lesco products. (Id. ¶ 3.)

2. The Defendants

In 1990, Defendant Masone was hired by Lesco to work in its Golf Division as part of Lesco's SOW program, covering golf courses from Staten Island to Montauk. Masone drove the only Lesco SOW vehicle on Long Island from 1990 to 1995, and from 1995 to July 2005 worked as Lesco's sales representative for all of its golf course customers on Long Island.

In 2002, Lesco hired Defendant Cash, who also worked as a sales representative in Lesco's SOW program. (Id. ¶ 5.) Like Masone, his territory included all of Long Island.

3. Covenant not to Compete

Defendants entered into written, signed agreements (the "Agreements") when they began employment with Lesco, which contained non-compete, non-solicitation, and non-disclosure covenants. (Id. ¶ 9.) These Agreements also contained an express "Covenant Against Unfair Competition", which provided:

[F]or twelve (12) months after such employment ends for any reason, Employee will not, either directly or indirectly, (i) perform any sales, service, marketing or supervisory work for or at any competing business entity's facility located within fifty (50) miles of Employer's location . . . or (ii) call on, solicit or have business communications with any customer or prospect of Employer for the purpose of obtaining any [professional turf care] Industry business from such customer or prospect other than for the benefit of Employer. (Defendants' Answer Exs. A and B, ¶ 3(c).)

The Agreements also provided that, while employed by Lesco and for twelve months thereafter, Masone and Cash would not "induce or attempt to induce or influence any employee of Employer to terminate employment with Employer". (Defendants' Answer Exs. A and B, ¶ 3(b).)

4. Temporary Restraining Order and Consent Judgment

In late June 2005, Lesco received a letter from a lawyer representing both Masone and Cash stating that they desired to terminate their employment with Lesco, and that they intended to continue to work in the turf care industry. (Bergamo Decl. ¶ 14 and Ex. C.) Soon after, Defendants left the Company.

On July 5, 2005, Lesco commenced this case against Defendants, seeking an injunction to prevent them from competing. (See Pl.'s Post Hearing Mem. Supp. Mot. Civil ...


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