Opinion
Civil Action No. 12-cv-01485-CMA-BNB
11-20-2012
ELEMENTS THERAPEUTIC MASSAGE, INC., a Delaware corporation, Plaintiff, v. SALT PIER LLC, a Florida limited liability company, DOREEN ZENESKI, an individual, and GREGORY ZENESKI, an individual, Defendants.
Judge Christine M. Arguello
STIPULATED PERMANENT INJUNCTION
On this date, the Court considered the above-captioned action between Elements Therapeutic Massage, Inc. ("Elements") and Salt Pier LLC, Doreen Zeneski, and Gregory Zeneski (collectively, "Defendants"). The Court, being informed of a negotiated Settlement Agreement between the parties, hereby GRANTS the parties' Stipulated Permanent Injunction.
THE PARTIES HEREBY STIPULATE AS FOLLOWS:
1. This action arises out of a written Franchise Agreement between Elements and Doreen Zeneski and Gregory Zeneski, which was subsequently assigned to Salt Pier LLC. Pursuant to the Franchise Agreement, Defendants were granted the right, subject to the terms and conditions of the Franchise Agreement, to operate an Elements Therapeutic Massage studio. Defendants opened an Elements Therapeutic Massage studio at 2355 Vanderbilt Beach Road, Suite 146, Naples, Florida 34109 ("Studio").
2. Venue is proper in this Court as provided in Section 14.2 of the Franchise Agreement.
3. Elements has alleged that Defendants failed to comply with the lawful provisions of the Franchise Agreement by prematurely closing the Studio, thereby abandoning the Franchise Agreement; that Elements terminated the Franchise Agreement, consistent with the express terms of the written Franchise Agreement; that, in entering into the Franchise Agreement, the parties agreed to a post-termination covenant not to compete; and that, following termination, Defendants breached their post-termination contractual obligations by, among other things, operating a competing massage business at the site of their former Studio.
4. Elements moved for a preliminary injunction seeking to require Defendants to comply with the post-termination covenant not to compete agreed to in the Franchise Agreement. A hearing on Element's preliminary injunction motion was set for August 31, 2012.
5. In order to avoid the cost, expense, and time of litigation, the Defendants have agreed to the entry of this Stipulated Permanent Injunction against them as a result of good-faith negotiations and compromise. This Stipulated Permanent Injunction is not intended to and does not constitute an admission by Defendants of Plaintiff's claims.
6. Defendants hereby waive any and all claims that this permanent injunction was improperly entered.
7. Defendants agree not to own, manage, maintain, engage in, consult with, or have any interest in any massage business that markets, sell, or offers massage services, products, workshops, or educational materials that are the same as, similar to, or competitive with the types sold in Elements Therapeutic Massage studios; nor use any of the Proprietary Assets (as defined in the Franchise Agreement) for any unauthorized purpose; use any confusingly similar method, format, procedure, technique, slogan, insignia, term, designation, design, diagram, promotional material or course material; or cause or permit any facility or program to look like, copy, or imitate any facility or program operated or licensed by Elements, at the premises of the former Studio (2355 Vanderbilt Beach Road, Suite 146, Naples, Florida 34109), within an 8-mile radius of the premises of the former Studio, or within an 8-mile radius of the location of any other business using the Elements Therapeutic Massage Franchise System for a period of one (1) year from September 21, 2012—that is, up to and including September 21, 2013.
Accordingly, IT IS HEREBY ORDERED that Plaintiff Elements Therapeutic Massage, Inc. is entitled to a permanent injunction against Defendants Salt Pier LLC, Doreen Zeneski, and Gregory Zeneski on the following terms:
1. For a period of one (1) year from September 21, 2012—that is, up to and including September 21, 2013—Defendants, either directly or indirectly, for any or all of themselves, or through, on behalf of, or in conjunction with, any person or entity, are enjoined from the following at the premises of the former Studio (2355 Vanderbilt Beach Road, Suite 146, Naples, Florida 34109), within an 8-AGREED TO this 21st day of September, 2012: ELEMENTS THERAPEUTIC MASSAGE, INC. By: _____________________
mile radius of the premises of the former Studio, or within an 8-mile radius of the location of any other business using the Elements Therapeutic Massage Franchise System:
a. Owning, managing, engaging in, consulting with, or having any interest in any massage business that markets, sells, or offers massage services, products, workshops, or educational materials that are the same as, similar to, or competitive with the types sold in Elements Therapeutic Massage studios;2. Defendants shall immediately perform their contractual post-termination obligations under the Franchise Agreement, including, without limitation, the obligations:
b. Using any of the Proprietary Assets (as defined in the Franchise Agreement) for any unauthorized purpose;
c. Using any confusingly similar method, format, procedure, technique, slogan, insignia, term, designation, design, diagram, promotional material or course material; or
d. Causing any facility or program to look like, copy, or imitate any facility or program operated or licensed by Elements.
a. To disconnect and discontinue use of the business telephone number for the Studio;
b. To return to Elements the Operations Manual and all other manuals, plans, specifications, designs, records, data samples, models,
programs, materials, handbooks, drawings, and other materials provided to any or all of the Defendants by Elements.
Jess A. Dance
Perkins Coie LLP
1900 Sixteenth Street, Suite 1400
Denver, CO 80202-5255
Telephone: 303.291.2300
Facsimile: 303.291.2400
JDance@perkinscoie.com
GREG ZENESKI, DOREEN ZENESKI, and
SALT PIER LLC
By: _____________________
Andrew W. Myers
Husch Blackwell LLP
1050 17th St., Suite 1500
Denver, Colorado 80265
Telephone: 303.685.4800
Facsimile: 303.685.4869
Andrew.Myers@huschblackwell.com
BY THE COURT:
________________________
CHRISTINE M. ARGUELLO
United States District Judge