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Inc. v. Greenbaum

United States District Court, W.D. Missouri, Central Division

March 16, 2015

Symphony Diagnostic Services No. 1, Inc. d/b/a MobileExUSA, Plaintiff,
v.
Kimberly Greenbaum and, Josephine Tabanag, Defendants

For Symphony Diagnostic Services No. 1 Inc., d/b/a MobilexUSA, a California corporation, Plaintiff: Michael Ross Annis, LEAD ATTORNEY, Husch Blackwell LLP - StL, St. Louis, MO; Robert Ryan Harding, Husch Blackwell LLP - JCMO, Jefferson City, MO.

For Kimberly Greenbaum, Josephine Tabanag, Defendants: Casey E Elliott, LEAD ATTORNEY, Garrett Stephen Taylor, Van Matre, Harrison, Hollis, Taylor, & Bacon, PC, Columbia, MO.

ORDER

Fernando J. Gaitan, Jr., United States District Judge.

Pending before the Court are (1) Defendant Kimberly Greenbaum's Motion for Summary Judgment (Doc. No. 37); and (2) Defendant Josephine Tabanag's Motion for Summary Judgment (Doc. No. 39). As the issues presented in the two motions for summary judgment are nearly identical, the Court considers both motions together.

I. Background

In 2007, Defendant Kimberly Greenbaum (" Defendant Greenbaum" or " Greenbaum" ) began working as a mobile x-ray technician for Ozark Mobile Imaging, LLC (" Ozark" ). When Greenbaum began her employment at Ozark, she was a part-time employee earning $17.50 per hour. On or about September 6, 2007, Greenbaum executed a Covenant Not to Compete with Ozark which contained a term of two (2) years and a one hundred (100) mile radius of St. Joseph, Missouri, Kansas City, Missouri, Columbia, Missouri, Joplin, Missouri, Laurie, Missouri, Springfield, Missouri, Lincoln, Nebraska and Omaha, Nebraska. See Doc. No. 1, Pl.'s Compl. Ex. A. Greenbaum was required to sign the Covenant Not to Compete as a condition of her employment with Ozark. The Covenant Not to Compete states: " In consideration of his/her employment by Mobile Medical Services Inc., Ozark Mobile Imaging, Clearview Mobile Imaging, LLC and/or its affiliates, the undersigned

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Employee hereby agrees that he/she will not, during the term of his/her employment nor for two (2) years immediately following the termination of his/her employment . . . compete or otherwise jeopardize the company's facilities and/or customers . . . ." Doc. No. 1, Pl.'s Compl. Ex. A (emphasis added).

Similarly, on or about October 6, 2010, Defendant Josephine Tabanag (" Defendant Tabanag" or " Tabanag" ) began working as a mobile x-ray technician for Ozark Mobile Imaging, LLC (" Ozark" ). Tabanag executed a Covenant Not to Compete with Ozark which contained a term of two (2) years and a one hundred (100) mile radius of St. Joseph, Missouri, Kansas City, Missouri, Columbia, Missouri, Joplin, Missouri, Laurie, Missouri, Springfield, Missouri, Lincoln, Nebraska and Omaha, Nebraska. See Doc. No. 1, Pl.'s Compl. Ex. B. Tabanag was required to sign the Covenant Not to Compete as a condition of her employment with Ozark. The Covenant Not to Compete states: " In consideration of his/her employment by Mobile Medical Services Inc., Ozark Mobile Imaging, Clearview Mobile Imaging, LLC and/or its affiliates, the undersigned Employee hereby agrees that he/she will not, during the term of his/her employment nor for two (2) years immediately following the termination of his/her employment . . . compete or otherwise jeopardize the company's facilities and/or customers . . .." Doc. No. 1, Pl.'s Compl. Ex. B (emphasis added).

While employed with Ozark, Greenbaum worked as a mobile x-ray technician on a full-time basis. At some time after she executed the Covenant Not to Compete, Greenbaum was given the position of " District Manager" with Ozark. While employed in the position of District Manager with Ozark, Greenbaum made $21.50 per hour plus call pay. Similarly, while employed with Ozark, Tabanag worked as a mobile x-ray technician on a full-time basis. Tabanag also received benefits from Ozark. While employed by Ozark, Tabanag received $17.50 per hour.

On or about December 11, 2012, Ozark was sold in an Asset Purchase Agreement to MobileX USA. On or about December 3, 2012, Defendant Greenbaum was presented with a " conditional offer of employment as a per diem Mobile Radiologic Technologist in Columbia, MO" by MobileX USA. On or around January 2013, Defendant Tabanag was offered a position as a per diem Mobile Radiologic Technologist in Columbia, MO by MobileX USA. MobileX USA's offer of employment for both defendants was as a PRN employee (i.e., on an " as needed basis" with no guaranteed number of hours). MobileX USA's offer of employment to Greenbaum USA was conditional upon a 90 day probationary period, was not accompanied by any employee benefits due to being offered a position as a PRN employee, and was not for a " District Manager" position. Similarly, MobileX USA's offer of employment to Tabanag was on a PRN basis and was not accompanied by any employee benefits similar to those she enjoyed while employed with Ozark due to being offered only a part-time job. Both Greenbaum and Tabanag refused to sign the MobileX USA employment offer.

At the time of Ozark's sale to MobileX USA in the Asset Purchase Agreement, Greenbaum and Tabanag did not contemporaneously consent to the assignment of their Covenants Not to Compete from Ozark to MobileX USA. To date, Greenbaum and Tabanag have never consented to the assignment of their Covenants Not to Compete from Ozark to MobileX USA. In or around January 2013, Greenbaum accepted a position as a mobile x-ray technician for Biotech X-ray, Inc. In or around February 2013, Tabanag accepted a position

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as a mobile x-ray technician for Biotech ...


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