Complaint for Breach of Employee Non-Compete Agreement

The following is a complaint we filed on behalf of Trek Bikes in a non-compete case against a former regional manager.  Within approximately 30 days, we secured a preliminary injunction and the case was resolved.  This post deals with enforcing agreements not to compete under Florida law. 

COLLIER COUNTY, FLORIDA

COMPLAINT

Plaintiff, DL Cycles, LLC, d.b.a. Trek Bicycles (“DL Cycles” or “Plaintiff”), by and through its undersigned counsel, hereby brings this Complaint for Breach of Contract against Defendant Paul Mazurek (“Mazurek” or “Defendant”), and in support states as follows:

NATURE OF THE ACTION

1. This is an action for damages and permanent injunctive relief against Paul Mazurek. The action is being brought due to Mazurek’s violation of the non-competition and confidentiality covenants contained in Mazurek’s Performance Bonus Agreement with DL Cycles, LLC. (Exhibit A – “the Agreement”).

PARTIES

2. DL Cycles, LLC is a company organized and existing under the laws of the State of Florida.
3. DL Cycles, LLC maintains physical locations in the Florida cities of Estero, Naples, Fort Lauderdale, Sunrise, Fort Meyers, Cape Coral, Boynton Beach, and Boca Raton.
4. On information and belief, Mazurek is an individual who resides in Broward County, FL.

JURISDICTION AND VENUE

5. This action is brought in Collier County Circuit Court.
6. This Court has jurisdiction pursuant to §26.012(2)(a) Florida Statutes as the amount in controversy exceeds $15,000 based upon the value of Plaintiff’s confidential information.
7. This Court has jurisdiction pursuant to §26.012(2)(c) Florida Statutes as Plaintiff is seeking injunctive relief.
8. This Court has jurisdiction over Plaintiff as DL Cycles maintains a physical location in Naples, FL, Collier County, and because Plaintiff’s registered address is in Lee County, FL.
9. Under the terms of the written agreement he signed with Plaintiff, DL Cycles, LLC, Mazurek irrevocably consented and submitted to the jurisdiction and venue of the Florida Circuit Courts in and for Collier County, Florida. (The Agreement at ¶13.2).
10. All conditions precedent to bringing this action have occurred, have been waived, or have otherwise been satisfied.

GENERAL ALLEGATIONS

1. DL CYCLES, LLC AND ITS BUSINESS

2. DL Cycles is a retailer of bicycles; bicycle and cycling equipment; cycling accessories, clothing, and shoes; nutrition products; replacement parts; and other gear related to cycling. DL Cycles also offers bicycle rentals.
3. DL Cycles is a provider of bicycling related services such as equipment repair and maintenance and bicycle fitting.
4. DL Cycles maintains eight retail stores in the state of Florida and one in North Carolina, all operating under DL Cycles’ fictitious name, Trek Bicycles or some derivative thereof, i.e. Trek Bikes.
5. Among other things, DL Cycles and its employees, including its managers and regional managers, have thorough product and market knowledge, and they provide their customers with customized products and services designed to fit the customers’ specific needs.
6. DL Cycles conducts weekly video conference meetings with its managers at which the attendees discuss various topics including, but not limited to (1) historical store financial information such as profit margins and volume sales; (2) margin guides for the retail items, which information is used to implement the company’s established negotiation terms by product; (3) goals and benchmarks regarding sales per store by category and time of year; and (4) inventory management plans.
7. DL Cycles also conducts weekly video conference meetings with members of upper management, including its regional managers. At these meetings, in addition to the matters discussed at the manager meetings, upper management also discusses topics including, but not limited to, (1) effective past marketing strategies and plans for future marketing; (2) plans for new retail locations; and (3) plans for discontinuing certain products and bringing on other product lines. The meetings also involve analyzing prior store performance and the prevalent market forces in order to set benchmarks on a per store basis.
8. DL Cycles utilizes a point of sale inventory and customer management system that tracks various data including, but not limited to, (1) historical sales by store; (2) historical sales by customer; (3) customer contact information; and (4) company set metrics such as margin limits by product and store and product benchmarks.
9. DL Cycles caters to two broad categories of customers; (1) cycling enthusiasts; and (2) other individuals who ride bicycles.
10. Competition within the retail bicycle industry is fierce and is highly sensitive to price, quality, and level of service provided.
11. DL Cycles competes with bicycle retailers throughout Florida, but most fiercely competes with other companies located within a 30-mile radius of its locations.

12. DL CYCLES’ SUBSTANTIAL CUSTOMER RELATIONSHIPS

13. DL Cycles has established and maintains active ongoing relationships with specific customers. These relationships are substantial within the meaning of §542.335 Florida Statutes.
14. Of the two broad categories of customers identified supra, much of DL Cycles’ business comes from cycling enthusiasts with whom DL Cycles has established and maintains substantial relationships.
15. Once an initial relationship with these customers was established, DL Cycles took efforts to and was successful in transforming that relationship into a substantial one by, amongst other things, (1) offering bicycle fitting services to ensure that cyclists are purchasing bicycles that conform to the customer as opposed to the customer having to conform to the bicycle; (2) offering 30-day full refunds for purchased cycles; (3) offering lifetime flat repair services; (4) sending out newsletters reminding customers of their scheduled maintenance; (5) offering to introduce customers to various cycling groups and events; and (6) continuously providing the highest quality of products and services in the market.
16. These aforementioned efforts have resulted in garnering relationships with customers who return to DL Cycles for all of their cycling needs.
17. Many of DL Cycles customers return repeatedly for maintenance, gear, nutritional products, and accessories, in addition to returning to DL Cycles each time the customer needs a new bicycle.
18. The substantial relationships DL Cycles has developed and maintains with many of its customers have formed the backbone of DL Cycles from a profitability standpoint.   Many of these customers have brought revenue to DL Cycles of more than $100,000.00 each over the course of the relationships.
19. These relationships are developed and maintained most closely by DL Cycles’ store managers who have the authority to negotiate pricing discounts with DL Cycles’ customers.
20. Because DL Cycles’ managers are most closely responsible for maintaining DL Cycles’ substantial relationships with its customers, DL Cycles’ managers are required to execute agreements with DL Cycles that contain certain restrictive covenants.
21. Were a competitor of DL Cycles able to capitalize on the existing relationships between a manager and DL Cycles’ customers with whom it has a substantial relationship, DL Cycles would be placed at a severe competitive disadvantage.

• DL CYCLES’ CONFIDENTIAL INFORMATION

30. Since its inception, DL Cycles has spent a substantial amount of time and money in acquiring and developing its confidential information, including, but not limited to: (1) confidential plans for future store placement; (2) confidential customer information including customer lists; (3) pricing data and strategies; (4) marketing data and strategies; and (5) employee compensation schedules.
31. DL Cycles reveals its confidential information to its employees only on a need-to-know basis, and otherwise pursues a variety of precautions to prevent disclosure of its proprietary information to its competitors.
32. DL Cycles keeps much of its confidential information in its point of sale system which is password protected. Each user has a unique password which allows access to only certain parts of the system.
33. Some key employees, including DL Cycles’ managers and regional managers, are given full access to the system.
34. The system houses, amongst other things: (1) all of DL Cycles’ customers’ information including contact information and sales history and volume; (2) individual product margin limits; (3) store analytics including sales volume and performance; (4) maintenance schedules and (5) referrer information.
35. Users of the system have the ability to run customizable search queries in order to generate reports which include user defined outputs.
36. For instance, a user can create reports that depict: (1) all customers within a specific zip code; (2) all customers who have spent more than a specific dollar amount; (3) all customers who have returned at least a specific number of times; (4) all stores which have a specific profit margin or above; (5) all stores with a specific sales volume or above or (6) all products above a specific profit margin; just to name a few.
37. In addition to the confidential information housed in the point of sale system, DL Cycles also reveals its confidential information to its managers during its weekly managers meetings.
38. DL Cycles managers thus have weekly sessions which drill home DL Cycles’ (1) margin limits; (2) store-by-store performance; (3) store-by-store performance goals and (4) marketing and referral strategies amongst other things.
39. DL Cycles’ regional managers are given access to and help to create DL Cycles’ confidential information at its weekly regional manager meetings.
40. At these meetings, not only is information revealed, but the regional managers are instrumental in: (1) developing margin limits for new products; (2) assessing and, at times, changing margin limits for existing products; (3) analyzing store metrics and setting new goals for specific stores; (4) analyzing the outside market and identifying and analyzing opportunities for new store placement and (5) assessing and, at times, changing employee compensation.
41. Because its key employees have access to far more of DL Cycles’ confidential information, DL Cycles’ key employees, including its managers and regional managers, are required to execute agreements containing restrictive covenants.
42. These covenants provide an additional layer of protection for DL Cycles’ confidential information.

43. DL CYCLES’ INVESTMENT IN SPECIALIZED TRAINING

44. Since its inception, DL Cycles has spent a substantial amount of time and money in providing specialized training to certain of its employees.
45. Specifically with respect to Mazurek, DL Cycles has invested in and otherwise provided specialized training.
46. In 2012, DL Cycles sent Mazurek to a four-day bicycle fitting program – a program which taught Mazurek the specific technique for fitting the bicycle to the cyclist as well as how to train the cyclist on the correct posture and position to use while cycling.
47. Additionally, DL Cycles put Mazurek through countless in-house training programs.
48. These training programs included: (1) sales closing training; (2) employee management training; (3) financial management training and (4) specialized training for specific products and services.

49. MAZUREK’S EMPLOYMENT WITH DL CYCLES

50. Defendant Mazurek became employed by DL Cycles in October of 2009.
51. Aside from a brief stint in 2011, he worked for DL Cycles from October 2009 until April 2015.
52. Between 2012 and October of 2014, Mazurek was a store manager for DL Cycles.
53. During that time, Mazurek managed the company’s Sunrise, FL retail center.
54. Thereafter, Mazurek was moved to the company’s Fort Lauderdale location and operated as regional service manager until sometime in January 2015.
55. Between January 2015 and March 2015, Mazurek served as the store manager of the company’s Fort Lauderdale store.
56. From March 2015 until the termination of his employment, Mazurek was the store manager of the company’s Boca Raton store.
57. As store manager, Mazurek was given full access to DL Cycles’ point of sale system, which contains the vast majority of its confidential information.
58. Additionally, Mazurek was an attendee at DL Cycles’ weekly manager meetings, at which certain other confidential information was developed and discussed.
59. The confidential information developed revolved around (1) setting employee compensation structures; (2) setting margin limits for particular products; (3) establishing store and product benchmarks; (4) developing and maintaining company manuals including the employee handbook, training material, policies and procedures manual and guides, etc. and (5) developing DL Cycles’ marketing and outreach strategies.
60. As a regional service manager, Mazurek was an attendee at DL Cycles’ weekly upper management meetings, at which certain other confidential information was developed and discussed.
61. The confidential information developed revolved around (1) developing store design and product placement strategies; (2) deciding which products to discontinue at certain times; (3) making targeted marketing decisions and (4) discussing opportunities for short and long term business expansion including where to place new retail stores.
62. In addition to the confidential information, Mazurek’s tenure with DL Cycles enabled him to develop relationships with customers with whom DL Cycles maintains a substantial relationship.

63. THE RESTRICTIVE COVENANTS

64. On or about March 23, 2013, Defendant Mazurek signed an agreement entitled “DL CYCLES, LLC. PERFORMANCE BONUS AGREEMENT” (the “Agreement”) with DL Cycles. (Exhibit A – The Agreement).
65. In exchange for continued employment and deferred compensation in the form of deposits by DL Cycles into a mutual fund, Mazurek executed the Agreement, which contained certain restrictive covenants.[1]
66. The Agreement provides that:

As a material inducement to the Company to enter into this Agreement, the Participant covenants and agrees that for a period commencing as of the date hereof and terminating three (3) years after the effective date of such Participant’s termination of employment, the Participant will not, except in furtherance of his duties as an officer, director, employee or agent of the Company, in any manner whatsoever

Compete with the Company in the Restricted Operating Area; or

Disclose or divulge to any other Person, or use for the Participant’s own benefit or the benefit of any other person, any of the Company’s Confidential Information.

(Exhibit 1 at ¶5.2).

64. The Agreement defines the Restricted Operating Area as, “a 30 mile radius of a Company location.” (Exhibit 1 at ¶2.5).
65. The Agreement defines competition as:

In any individual capacity, or as an owner, co-owner, partner, member, joint venture, officer, director, independent contractor, or owner of any Person, engaging or investing in, owning, operating, financing, controlling, or participating in the ownership, operation, financing, or control of, engaged as an independent contractor by, lending the Participant’s name or any similar name to, lending the Participant’s credit to, or: (i) providing services as a bike shop owner for the three years following termination (ii) any other business conducted by the Company in the Restricted Operating Area on the date of the Participant’s termination of employment; this prohibits the terminated Employee from being an employee of any other bicycle company within the restricted area (sec. 2.7) for the one year (sec.5.3) following the termination date .

(i) Inducing or attempting to induce any employee, agent or independent contractor of the Company to leave the employ of, or to terminate such Person’s engagement with, the Company; (ii) Interfering in any way with the relationship between the Company and any officer, director, employee, agent or independent contractor of the Company; (iii) Employing or engaging any current employee, agent, or independent contractor of the Company or any Person who, during the twenty four (24) month period immediately prior to and ending on the Participant’s termination of employment, was an employee, agent, or independent contractor of the Company or received compensation for services rendered or products or goods sold to the Company; or (iv) Inducing or attempting to induce any client, customer, supplier, vendor, licensor, licensee, franchisor, franchisee, or business relation of the Company to cease doing business with the Company, or in any way interfering with the relationship between the Company and any client, customer, supplier, vendor, licensor, licensee, franchisor, franchisee, or business relation of the Company; or

Soliciting the business of any current customer, client, licensee, franchisee of the Company or any Person who, during the 12 (twelve) month period immediately prior to and ending on the Participant’s termination of employment, received services, products or goods from the Company or who compensated the Company for services, products or goods, whether or not the Participant had personal contact with such customer, client, licensee, franchisee or other Person.

(the Agreement at ¶2.3)(emphasis added).

66. The Agreement defines the Company’s Confidential Information as:

Information concerning the business and affairs of the Company, product specifications, data, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and development, current and planned manufacturing or distribution methods and processes, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), computer software and database technologies, systems, structures and architectures (and related processes, formulae, composition, improvements, devices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information), and any other information, however documented, that is a trade secret within the meaning of Florida or federal law;

Records, documents, client and customer lists, referral sources, financial information, proprietary information, methods, techniques, processes, marketing and acquisition strategies and plans, intellectual property (regardless of whether patentable or copyrightable), formulas, computer print-outs and other information and work product of any kind within the meaning of Florida or federal law, whether or not complete and whether or not documented; and

Information concerning the business and affairs of the Company and its customers and clients (which includes without limitation historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, personnel training techniques and materials, however documented).

(Exhibit 1 at ¶2.2).

67. The Agreement specifically contemplates injunctive relief as a possible remedy for the Agreement’s breach or threatened breach. The Agreement states:

The Participant and the Company recognize and expressly agree that the extent of damages to the Company in the event of a breach by the Participant of any Restrictive Covenant set forth herein would be impossible to ascertain, that the irreparable harm arising out of any breach shall be irrebuttably presumed, that the remedy at law for any breach will be inadequate to compensate Company, and that the enforcement of the Restrictive Covenant is reasonably necessary to protect the legitimate business interests of the Company, including but not limited to the protection of (i) the goodwill of the Company, (ii) trade secrets of the Company, as defined in Florida Statutes, (iii) valuable confidential business or professional information of the Company that does not otherwise qualify as trade secrets, (iv) substantial relationships which the Company has with specific prospective or existing client and customers and referral sources, and (v) the Company’s investment. Accordingly, the Participant agrees that, in the event of a breach or threatened breach by the Participant of any of the provisions of this Section, the Company, in addition to and not in limitation of any other rights, remedies or damages available to the Company at law or at equity, shall be entitled to a temporary restraining order, preliminary injunction and permanent injunction in order to prevent or restrain any such breach by the Participant. Nothing herein shall be construed as prohibiting the Company from pursuing any other remedies available to it from such breach or threatened breach, including the recovery of damages from the Participant.

(the Agreement at ¶5.3).

68. Each of the provisions of section 5 of the Agreement constitutes an independent covenant. To that effect, the Agreement reads:

Each of the provisions of this Section shall be construed as an agreement independent of any other provisions of this Agreement. The existence of any claim or cause of action by the Participant against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of these Restrictive Covenants.

(the Agreement at ¶5.4.3).

In the event of any dispute as to the precise meaning of any term contained herein, the principles of construction and interpretation that written documents be construed against the party preparing the same shall not be applicable. Every covenant, term, and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any party hereto. Each representation, warranty, and covenant contained herein shall have independent significance.

(the Agreement at ¶13.6).

69. Based upon the foregoing, Defendant Mazurek agreed and covenanted that (1) the provisions regarding non-competition, confidentiality, and non-solicitation would survive the termination of Mazurek’s employment and (2) that the provisions each constitute independent covenants and could not be discharged by actions of the party seeking their enforcement.
70. Defendant Mazurek specifically agreed that he would not become employed by any other bicycle company within a 30-mile radius of any DL Cycles retail store for a one-year period following the termination of his employment with DL Cycles.

• NECESSITY OF THE COVENANTS

71. Each of the restrictive covenants contained in the Agreement are reasonable and necessary to protect DL Cycles’ legitimate business interests, including its confidential information, substantial relationships with existing customers and specialized training.
    1. Margin Limits
72. In the retail cycling industry, retailers purchase products from manufacturers at a set price and, in the absence of a sale, the manufacturer’s suggested retail price (MSRP) is the listed price of the product in the store. DL Cycles concedes that this information is not confidential.
73. DL Cycles has set margin limits below the MSRP. These margin limits constitute the base line price that the company is willing to offer for each product. This information is confidential.
74. If a local competitor were to find out the lower limit that DL Cycles is willing to charge its customers for specific products, DL Cycles would be placed at a severe competitive disadvantage.
75. Mazurek was given access to, knew, and does know DL Cycles’ margin limits and disclosure of such information is inevitable as long as Mazurek is involved in retail sales of the same or competing products within the restricted area.
76. This disclosure puts DL Cycles at a competitive disadvantage.
    1. Retail Location Targets
77. DL Cycles has disclosed to Mazurek and its other upper level employees the areas the company is targeting for future growth and expansion.
78. Were a competitor to become aware of these targeted areas, it could use the information to beat DL Cycles to the market and begin developing relationships with local cyclists prior to DL Cycles being able to do so.
79. Disclosure of such information would put DL Cycles at a competitive disadvantage.
    1. Financial Data
80. Mazurek was given access to and discussed weekly confidential financial data belonging to DL Cycles.
81. This financial data includes, without limitation: (1) store profit margins; (2) product profit margins; (3) store sales volume; and (4) product sales volume.
82. Armed with this information, a competitor would know (1) what areas of the state to target for growth based upon DL Cycles’ profitability there and (2) which product lines to offer to specific target markets based upon DL Cycles’ sales and profitability with complimentary or competing products.
83. Use of such information by a competitor would put DL Cycles at a severe competitive disadvantage.
    1. Customer Lists
84. Mazurek had access to, and the ability to download, print, and retain either in hardcopy form or in his memory, DL Cycles customer lists.
85. DL Cycles customer list, or any subset thereof, is not readily obtainable from any source other than from DL Cycles.
86. With DL Cycles customer list, a competitor would be able to contact DL Cycles customers for sales or service armed with (1) the customer’s sales history; (2) the customer’s maintenance schedule; (3) the customer’s preferences in terms of product lines for shoes, clothing, and accessories and (4) how much the customer has paid for each of the products and/or services it has been supplied.
87. A competitor or employee of a competitor – especially one within the restricted territory – would be able to place DL Cycles at a severe competitive disadvantage armed with such information.
    1. Referral Sources
88. DL Cycles relies heavily on referrals from both (1) its existing customers and (2) other industry insiders.
89. DL Cycles maintains informal relationships with industry insiders including, but not limited to: (1) chiropractors and chiropractic offices who prescribe cycling as a rehabilitation method; (2) cycling groups; (3) nonprofit organizations to which DL Cycles contributes; and (4) retailers of running equipment and running clubs whose patrons and members engage in cross training.
90. Each of these industry insiders consistently refers customers to DL Cycles.
91. DL Cycles managers, Mazurek included, know who these referral sources are and how to contact them.
92. A competitor armed with this confidential information can encroach upon the informal relationships DL Cycles has established and do so to DL Cycles’ competitive disadvantage.
    1. Substantial Customer Relationships
93. The active, ongoing, substantial relationships that DL Cycles has engendered and maintains with certain of its existing customers are protectable under the relevant statute.
94. Mazurek maintained certain of these relationships on behalf of DL Cycles.
95. Mazurek had access to information regarding the substantial customer relationships that he did not maintain on behalf of DL Cycles.
96. The threatened use of this information and the threatened encroachment upon DL Cycles substantial relationships that exist where a former manager operates on behalf of a competitor within the restricted territory generates a competitive disadvantage to DL Cycles.
97. DL Cycles will have to spend time and resources in further maintenance of the substantial relationships that are threatened based upon the wrongful competition within the restricted area.
    1. Specialized Training
98. The great expense which DL Cycles has undertaken in order to provide specialized training to its employees, Mazurek included, provides DL Cycles with a competitive advantage.
99. Competitors within the restricted area for whom former employees work in violation of their restrictive covenants wrongfully gain access to that investment in training.
100. Such wrongful access to DL Cycles’ investment in specialized training operates to destroy the competitive advantage that DL Cycles has gained by engaging it employees in such training.

• Defendant Mazurek’s Wrongful Conduct

101. On information and belief, Mazurek is presently employed by City Bikes at their retail store located at 20335 Biscayne Blvd. Rm – L36, Promenade Shops, Aventura – Miami, FL.
102. Plaintiff, DL Cycles maintains a physical store located at 1621 E. Sunrise Blvd., Fort Lauderdale, FL 33304.
103. At some time prior to his termination from DL Cycles, Mazurek was the store manager of DL Cycles’ Fort Lauderdale retail store.
104. The City Bikes store at which Mazurek works is located roughly 14 miles from Plaintiff’s Fort Lauderdale retail store – which is within the 30-mile radius restricted by the Agreement.
105. Mazurek’s employment at City Bikes constitutes a breach of the non-compete Agreement.
106. On information and belief, Mazurek is interacting with customers and potential customers of City Bikes in a sales capacity.
107. As part of such interaction, Mazurek is quoting prices on products City Bikes carries.
108. Mazurek’s quotes to City Bikes’ customers is inevitably informed by – and therefore inevitably using and disclosing – DL Cycles confidential margin limits which Mazurek has retained in his memory.
109. Mazurek’s mere employment within the restricted territory constitutes a threatened breach of the confidentiality covenant for which Mazurek agreed injunctive relief was the appropriate remedy.
110. The continued confidentiality of the entirety of Plaintiff’s confidential information is threatened by Mazurek’s conduct.
111. Mazurek has solicited Saul Gonzalez, an employee in DL Cycles’ Boca Raton store, in an attempt to convince him to leave DL Cycles and go work for City Bikes.
112. Mazurek has solicited Daniel Garcia, an employee in DL Cycles’ Sunrise store, in an attempt to convince him to leave DL Cycles and go work for City Bikes.
113. These actions violate ¶2.1.1 of the Agreement.
114. But for Mazurek’s employment with DL Cycles – and for his having held the position of manager of both the Sunrise and Boca Raton stores – Mazurek would not have gained personal knowledge of the abilities, work ethic, and other demonstrable strengths of DL Cycles’ employees.
115. Mazurek is now using this information gained as a result of his employment with DL Cycles in an attempt to benefit one of DL Cycles’ competitors to DL Cycles’ detriment.
116. In addition to personal knowledge of employee strengths, Mazurek’s tenure with DL Cycles gave him access to reports which demonstrated each employee’s strengths.
117. Mazurek’s continued competition with DL Cycles in violation of his agreement is a credible threat to DL Cycles’ ability to retain even those employees with whom Mazurek has never had personal contact.
118. Due to Mazurek’s conduct, Plaintiff has retained the services of undersigned counsel to represent its interests in this action.
119. Plaintiff is entitled to an award of attorney’s fees pursuant to §542.335 Florida Statutes.

COUNT I – BREACH OF CONTRACT

120. Plaintiff reincorporates and realleges the allegations contained in Paragraphs 1 – 119 above as if set forth fully herein.
121. This is an action for damages and temporary and permanent injunctive relief against Defendant, Paul Mazurek, for his Breach of Contract.
122. Mazurek willfully entered into the Agreement with DL Cycles that contained certain restrictive covenants.
123. In exchange for agreeing to the restrictions, Mazurek continued to be gainfully employed and further received deferred compensation in the form of payments into a mutual fund.
124. The restrictive covenants are necessary, reasonable, and supported by adequate consideration.
125. The non-compete provision restricts Mazurek from engaging in competitive activity within a 30-mile radius of any of DL Cycles’ nine retail establishments.
126. Specifically, the non-compete provision restricts Mazurek from becoming employed by a competitor of DL Cycles within a 30-mile radius of any of DL Cycles’ nine retail establishments.
127. Subsequent to the termination of his employment with DL Cycles, Mazurek became employed by City Bikes.
128. City Bikes is a direct competitor of DL Cycles.
129. The City Bikes location at which Mazurek now works is with a 30-mile radius of Plaintiff’s Fort Lauderdale retail store.
130. By becoming employed by City Bikes, Mazurek has violated the non-compete provision of the Agreement.
131. The non-compete provision further restricts Mazurek from soliciting DL Cycles’ employees.
132. Mazurek violated the non-compete provision by soliciting both Saul Gonzalez and Daniel Garcia to leave DL Cycles’ employ in favor of becoming employed by City Bikes.
133. The confidentiality provision of the Agreement restricts Mazurek from divulging or using any of DL Cycles’ confidential information.
134. Mazurek has violated the confidentiality provision of the Agreement by using DL Cycles’ confidential information for his own benefit and for the benefit of City Bikes.
135. Specifically, Mazurek has retained knowledge of DL Cycles margin limits and inevitably uses this information when negotiating with customers of City Bikes.
136. Unless Mazurek and those who are in active concert or participation with him are enjoined against violation of the Agreement, DL Bikes will suffer irreparable injury and harm in the form of, among other things:
     1. Use and or disclosure of customer information, financial information, and other confidential and proprietary information that is the property of DL Cycles;
     2. Present economic loss, which is unascertainable at this time, and future economic loss, which is incalculable; and
     3. Loss of customer goodwill, damage to customer relationships, loss of market position and reputation in the industry, and damage to its valuable competitive advantage – all of which cannot be compensated by an award of damages.
137. The balance of equities weighs in favor of DL Cycles because the injuries and threatened injuries to DL Cycles outweigh any harm an injunction poses of Mazurek.
138. As a result of the irreparable injury and harm detailed above, DL Cycles has no adequate remedy at law.
139. The public having a vested interest in ensuring the sanctity of contracts, entering the requested injunction will serve the public interest.
140. DL Cycles has a substantial likelihood of prevailing on the merits of this cause of actions at trial.
141. As a result of Mazurek’s wrongful conduct, DL Cycles has suffered and will suffer certain calculable damages in an amount to be determined at trial.

WHEREFORE DL Cycles, LLC requests that this Court enter judgment against Mazurek as follows:

1. Temporarily and permanently enjoining Mazurek, and all those who act in active concert or participation with him in violation of his Agreement, from the following:
   1. Directly or indirectly competing with DL Cycles within the restricted territory;
   2. Using or disclosing DL Cycles’ confidential and proprietary information; and
   3. Directly or indirectly soliciting customers of DL Cycles;
2. Requiring Mazurek to return all documents or materials containing DL Cycles’ confidential information;
3. Awarding DL Cycles damages in an amount to be determined at trial;
4. Awarding DL Cycles costs of this action, including attorney’s fees; and
5. Granting such other relief as this Court deems just and proper under the circumstances.

Plaintiff demands a jury trial on all issues so triable.

Dated May 15, 2015                                                              Respectfully submitted,

Jonathan E. Pollard

Florida Bar No. 83613

jpollard@www.pollardllc.com

Pollard PLLC

401 E. Las Olas Blvd. #1400

Fort Lauderdale, FL 33301

Telephone: 954-332-2380

Facsimile: 866-594-5731

Attorneys for Plaintiff

DL Cycles, LLC

[1] While the Agreement contemplates consideration in the form of a life insurance policy, Defendant was unable to obtain a qualifying policy and elected to instead receive consideration in the form of a mutual fund.