United States District Court, D. Minnesota
C. Remington, Esq. and Husch Blackwell, LLP, counsel for
T. Berhow, Esq. and Hinshaw & Culbertson LLP, counsel for
S. Doty, Judge
matter came before the court upon the motion for a temporary
restraining order (TRO) by plaintiff Bluestone Physician
Services, P.A. The court denied the motion from the bench
with this written order to follow.
is a Minnesota corporation engaged in the business of
providing on-site medical care to patients residing in
assisted living facilities in Wisconsin, among other places.
Compl. ¶¶ 1, 13, 15. Defendants Lora Moericke and
Margaret Mattice began working at Bluestone as nurse
practitioners in November 2015. Id. ¶¶ 16,
17. At the outset of their employment, both Moericke and
Mattice signed the Bluestone Employment Agreement (the
Agreement). Id. ¶¶ 16, 17; see
id. Exs. A and B. Under the Agreement, for a period of
one year following termination of employment with Bluestone,
neither Moericke nor Mattice shall:
(a) provide similar onsite primary care services to any
residential care facility serviced by [Bluestone] (a
(b) solicit, induce or attempt to induce any Customer to
terminate or breach any written or oral agreement, business
arrangement or understanding with [Bluestone]; [or] ...
(d) engage or participate in any business or practice within
the Practice Territory that is in competition with the
business of [Bluestone] without [Bluestone's] written
Compl. Ex. A, Art. 6.1. “Practice Territory” is
defined as “[t]he geographic area within a radius of
ten (10) miles of any assisted living, memory care, skilled
nursing or group home community/facility or location from
which [Moericke or Mattice] provide[d] medical services on
behalf of” Bluestone. Id.
resigned from Bluestone on October 21, 2016, effective
November 4, 2016. Compl. Ex. C. Mattice followed suit by
departing Bluestone on December 27, 2016. Id. Ex. D.
Moericke began working for defendant Synergy Medical Service,
LLC, a competitor of Bluestone, on November 28, 2016.
Moericke Decl. ¶ 7.
reviewing the Agreement, Synergy assigned Moericke to
facilities in the Green Bay area because she did not see
patients there while employed by Bluestone. Id.
¶ 10. Moericke maintains that she has not provided
medical services on behalf of Synergy at any facility she
serviced during her tenure with Bluestone. Id.
hired Mattice on January 3, 2017, and assigned her to
facilities in Appleton, which is outside the territory she
covered while employed by Bluestone. Mattice Decl.
¶¶ 10, 13. Synergy also assigned Mattice to certain
nursing homes in Green Bay because, according to Mattice,
Bluestone does not provide nursing home care. Id.
¶ 14. On January 15, 2017, Mattice also began providing
services to certain of her former Bluestone patients because
Bluestone, at least in part, withdrew from the market.
Id. ¶ 17. Although whether Bluestone withdrew
from the entire Wisconsin territory at issue is unclear, the
record does support a finding that Bluestone stopped doing
business in at least some of the facilities Synergy now
serves. See Williams Decl. Exs. 1-5.
February 2, 2017, Bluestone filed this suit alleging that
Moericke and Mattice breached the non-competition and other
covenants in the Agreement, that Mattice breached her duty of
loyalty to Bluestone, and that Synergy tortiously interfered
with the Agreement. Bluestone seeks damages and declaratory
and injunctive relief. The next day, Bluestone moved for a
temporary restraining order to enjoin Moericke and Mattice
from violating the Agreement. After full briefing and oral
argument, the court denied the motion from the
bench. In so ruling, the court relied on the four