As set forth in the Court's April 6, 2006, Opinion and Order, Plaintiff provides information technology and management consultant services, principally to health care providers. It has employees residing in at least 48 states and has provided services to clients in all 50 states, as well as internationally. Plaintiff hired Defendant Hamlet as a Senior Management Consultant in November 2004, Defendant Williams as an Executive Director in July 2005 (his title was later changed to Partner) and Defendant Mestril as a Recruiting Manager in October 2005. All three individual defendants worked onsite for one of Plaintiff's clients, Kaiser-Permanente (“Kaiser”), in the Los Angeles, California area.
Each individual defendant executed an Employment Agreement with Plaintiff (or Superior Consulting Co., as Plaintiff was formerly known as), and each Employment Agreement included the following provisions (except that Hamlet's agreement did not include the language of 9(c) below):
8. Other Gainful Employment: The Employee shall devote full employment energies, abilities and time to the performance of services hereunder. The Employee is prohibited from performing services similar to those offered by ACS on behalf of any other company, organization, individual or other legal entity. The Employee is also prohibited from soliciting or negotiating to perform services similar to those offered by ACS on behalf of any other company, organization, individual or other legal entity. Further, the Employee must seek written approval of the Company prior to engaging in any employment of any nature similar to the Company's services or otherwise.
(a) No Recruitment of Company Personnel: In consideration of employment with the Company, the employee is prohibited, during employment and for a period of two (2) years following termination of employment for any reason, from recruiting, on behalf of him or herself, or on behalf of any third party, any employees of the company either directly or indirectly, specifically including, without limitation, identification to a third party (including, without limitation, recruiting agencies, employers and prospective employers) employees of the Company or any of its subsidiaries or affiliates.
*2 (b) Restrictions on Solicitation of Company Clients: In consideration of employment with the Company, the employee is prohibited, during employment and for a period of six (6) months following termination of employment for any reason, from (1) soliciting business and/or performing services via direct employment or through a party other than the Company, its subsidiaries or affiliates, for clients of the Company or prospective clients of the Company for whom the employee, during the twelve (12) months period immediately preceding termination of employment, was directly involved in the delivery of products or performance of services, or was personally involved in a relationship management role or in sales or marketing efforts; (2) soliciting, individually or on behalf of any person or entity, to perform, or performing services for, or referring to or advising any entity about, an opportunity to perform services for any client or prospective client of ACS where employee learned of the opportunity for that work while employee was employed by ACS.
(c) No Competitive Business Involvement: In consideration of employment with the Company, the Employee is prohibited, during employment and for a period of six (6) months following termination of employment from engaging in healthcare information systems consulting, management consulting or other businesses competitive with the Company.
(d) The non-competition provisions contained herein shall survive termination of employment.
11. Confidential Information: The Employee recognizes that in the course of performance of work for the Company the Employee will obtain access to materials and information of the Company, its subsidiaries and affiliates that constitute trade secrets and proprietary information of the Company, its subsidiaries and affiliates including, without limitation, descriptions of the Company's, its subsidiaries' and affiliates' products and services, planned products and services, business and marketing/sales plans, mergers and acquisition targets, employee compensation plans, employee medical information, the identities of suppliers, customers and prospective customers, identities of employees and prospective employees, prices and pricing policies in whatever form received by employee, including without limitation, written, voice, electronic or magnetic media or graphic display.
The Employee shall not utilize any such information for any purpose other than the performance of this Employment Agreement and shall not disclose any such information to any third party. The Employee shall, upon request by the Company, return or destroy, as directed by the Company, any media in which such information is recorded. The Employee shall also observe any restrictions with respect to the use and disclosure of the confidential information of the Company's clients that are specified in the Company's service agreements with the clients, or that are reasonably required by the clients.
*3 The Employee understands that his/her obligation of non-disclosure shall survive termination of employment for any reason whatsoever.
14. Termination of Employment: In the event employment with the Company is terminated by either the Employee or the Company, the Employee agrees to return all materials acquired during the term of employment with the Company. Specifically, this is to include without limitation, computer disks, computers, work papers, manuals, training manuals, notes, articles, phone lists, correspondence, proposals, addresses, reports, phone cards, office keys and any and all material related to employment with the Company.
18. Choice of Law and Forum: This Employment Agreement will be governed by and interpreted in accordance with the laws of the State of Michigan. Any action arising out of this Agreement or the termination of this Agreement, or the performance of services under this agreement, or the relationship of the parties established herein, shall be brought only in the Oakland County Circuit Court, Michigan, or United States District Court for the Eastern District of Michigan, Southern Division, at Detroit, Michigan, and Employee hereby consents to and submits to the jurisdiction of either of such courts for such purpose.
On March 8, 2006, after an investigation of alleged misconduct and wrongful activities by Williams, Mestril and Hamlet, Plaintiff's executives met with Williams and terminated his employment. He was asked to return Plaintiff's materials, but he initially failed to do so (a company issued Blackberry was not returned, among other things). The same day, Plaintiff's executives met with Mestril and encountered the same difficulties in getting Plaintiff's materials returned. Mestril took the Plaintiff's executives to his apartment to get the company-issued laptop but claimed it was gone from where he had left it. The Plaintiff's executives were unable to terminate Hamlet in person because he left the offices before they could do so. He was terminated via express mail and email over the next two days.
On March 29, 2006, Plaintiff filed an 11 count Verified Complaint for Injunctive and Other Relief and a Motion for Temporary Restraining Order and Preliminary Injunction. On March 30, 2006, the Court issued a Temporary Restraining Order and set a preliminary injunction hearing for April 4, 2006, at 10:00 a.m. On March 29, 2006, Plaintiff sent copies of the pleadings, motion and brief, and TRO by confirmed overnight delivery and as e-mail attachments to Williams, Hamlet and Mestril at their home e-mail addresses on file with Plaintiff. In addition, Plaintiff made arrangements for personal service of the same documents on Defendants.
*4 According to Mestril's counsel, on or about March 31, 2006, Williams and Hamlet had a conference call with Mestril discussing Plaintiff's lawsuit against the three of them. Williams and Hamlet indicated to Mestril that they had spoken with the best attorney in California who told them they had an excellent discrimination case. That attorney would defend Williams, Hamlet and Mestril for a fee, and Williams and Hamlet wanted Mestril to pay one third of the fee. Mestril instead obtained a Florida attorney, Robert I. Barrar (“Barrar”), on March 31, 2006. Both Mestril and Barrar attended the April 4, 2006, hearing.
Neither Williams, who was personally served on April 1, 2006, nor Hamlet, who was personally served on April 19, 2006, responded to the lawsuit. They eventually filed their Motion to Set Aside Default Judgment on August 16, 2006. Within days, Williams and Hamlet filed a civil rights lawsuit in this district, Case No. 06-13603, and that case was reassigned to this Court as a companion case. In their civil rights lawsuit, Williams and Hamlet claim that Plaintiff discriminated and retaliated against them, terminating them on the basis of their race.