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Bluez4 Corp. v. Macari

Supreme Court of Rhode Island

June 13, 2017


         Kent County Superior Court

          For Plaintiff: Edward Grourke, Esq.

          For Defendant: Dante J. Giammarco, Esq.


          STERN, J. JUSTICE.

         Plaintiff BlueZ4 Corp., d/b/a Blue Sky Spaworks (BlueZ4), petitioned this Court for a preliminary injunction against Rebecca Macari (Ms. Macari) and Astra Salon, LLC (Astra) (collectively, Defendants), based on a non-competition agreement that Ms. Macari signed as an employee of Blue Sky Spaworks & Gallery, Inc. (Blue Sky Spaworks), from which BlueZ4 purchased its salon and spa business, along with certain of its assets. Defendants oppose BlueZ4's request, arguing that that agreement is inapplicable to them on two grounds: it was (1) not assigned to BlueZ4 by Blue Sky Spaworks; and (2) not transferred and conveyed to BlueZ4 under the Asset Purchase Agreement between BlueZ4 and Blue Sky Spaworks.


         Facts and Travel

         First, this Court will comb through the pertinent facts of this case. Blue Sky Spaworks owned a salon and spa located at 80 Lambert Lind Highway, Suite 12, in Warwick, Rhode Island. In an affidavit, Ms. Macari attests, in pertinent part, that she worked at Blue Sky Spaworks since 1997, and that Blue Sky Spaworks designated her as a "Master Hairstylist." (Macari Aff. at ¶¶ 3, 7.) She attests further that in addition to working as a hairstylist, she "was appointed with managerial responsibilities, which meant [she] was responsible to train new employees or less experienced employees, make sure the hairdressing/stylist area was always neat and clean, deal with customer complaints, and order products when products needed to be replaced." Id. at ¶ 12. Ms. Macari's affidavit further reveals not only that "[a]s a 'manager, ' [she] had no ability to control, discipline, hire or fire any employee[, ]" id. at ¶ 15, but also that she "never had access to the computer system of Blue Sky Spaworks . . . or [BlueZ4] and [has] no information from the computer systems." Id. at ¶ 11. Also according to her affidavit, Ms. Macari "had experience as a hairdresser and stylist before being employed at Blue Sky Spaworks . . . and had an established following of customers before beginning [her] employment there." Id. at ¶ 8.

         It is undisputed that on April 17, 2004, Ms. Macari signed Blue Sky Spaworks' "Employee Non-Compete Clause" (the Non-Compete) as a condition of her continued employment. The Non-Compete, a one-page document, is at the heart of this dispute and provides, in pertinent part, as follows:

"1. Employee [Ms. Macari] shall not compete directly or indirectly, with Blue Sky Spaworks for a period of one (1) year after the termination of her/his employment within three (3) miles of Blue Sky Spaworks during the term of this Agreement. Employee also agrees that during the one (1) year period following termination of her/his employment, Employee:
"A. Will not solicit Blue Sky Spaworks related business from any salon/spa client
"B. Will not take client names/addresses/phone numbers from Blue Sky Spaworks computer system
"C. Will not influence or encourage any other Blue Sky Spaworks employee to terminate her/his relationship with Blue Sky Spaworks, and
"D. Will not hire any person then employed by Blue Sky Spaworks[.]"

         On September 26, 2014, while Ms. Macari was Blue Sky Spaworks' employee, Blue Sky Spaworks and BlueZ4 entered into an Asset Purchase Agreement, under which BlueZ4 purchased Blue Sky Spaworks' salon and spa business, along with certain of its assets.[1] In that Asset Purchase Agreement, the parties designated October 24, 2014 as the closing date for the sale of the business. Ms. Macari attests in her affidavit that in October 2014, her "employment was summarily terminated without prior notice or cause" (Macari Aff. at ¶ 3); that "[n]o one explained the type of sale or its impact upon the employees" id. at ¶ 4; that after the sale, she learned "only that Theodore Schroeder was the new owner" id.; and that she "had to fill in an application for employment as a new hiree, after being told of the new ownership of the spa." Id. at ¶ 5. She further attests that "neither [the] Non-Compete Clause nor any other non-competition provisions was a condition of [her] employment." Id. at ¶ 6. Ms. Macari thus began working for BlueZ4 in October 2014, and her designation as a Master Hairstylist remained unchanged. In early June 2016, however, Ms. Macari informed BlueZ4's owner, Mr. Theodore Schroeder, of her decision to leave employment at BlueZ4.

         On June 7, 2016, Astra, located within a three-mile radius of BlueZ4, hired Ms. Macari as a hairstylist. At some point thereafter, Ms. Macari posted about her new employment on her Facebook page. BlueZ4 learned of Ms. Macari's new employment and, by letter dated June 28, 2016, notified Ms. Macari (and, in a separate letter, Astra) that Ms. Macari was in breach of the Non-Compete. In response, Ms. Macari and Astra both informed BlueZ4 of their intent not to comply with the terms of the Non-Compete.

         On October 31, 2016, BlueZ4 filed a verified complaint seeking (1) a declaratory judgment from this Court, determining that the Non-Compete is enforceable as to BlueZ4 and that Ms. Macari and Astra are in breach of that agreement; (2) an order enjoining Ms. Macari's employment with Astra or any other competitor for at least one year; (3) an order enjoining Astra from employing Ms. Macari and from providing services to any of BlueZ4's customers; and (4) damages, including all of Astra's profits relating to BlueZ4's customers.

         On December 13, 2016, this Court held a hearing on BlueZ4's motion for preliminary injunction. This Court subsequently directed the parties to each submit a post-hearing memorandum of law addressing three issues: (1) the assignability of a non-compete agreement without an assignment clause; (2) whether the Non-Compete transferred as part of the Asset Purchase Agreement; and (3) the date on which the one-year period in the Non-Compete began running, in light of OfficeMax, Inc. v. Levesque, 658 F.3d 94 (1st Cir. 2011).


         Standard of Review

         Rule 65 of the Rhode Island Superior Court Rules of Civil Procedure provides the Court the ability to grant preliminary injunctive relief. Super. R. Civ. P. 65. The standard for granting a preliminary injunction has been established by ...

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