United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION FOR PRELIMINARY
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff MetroPCS New York
LLC's (“MetroPCS”) Motion for Preliminary
Injunction. Dkt. #23. Plaintiff seeks an Order enjoining
Defendants 35-46 Broadway, Inc., Abdallah Nofal, Dawod Nofal,
Saed Nofal and Gee4Bee Wireless, Inc. from selling competing
wireless telephone and wireless internet services for six
months, within two miles of the location Defendants used to
sell MetroPCS services, as provided for under 35-46
Broadway's Exclusive Subdealer Agreement
(“Subdealer Agreement”) with MetroPCS.
Id. Defendants have failed to respond. For the
reasons set forth below, the Court now GRANTS Plaintiff's
motion for preliminary injunction.
initially filed this matter on October 20, 2017. Dkt. #1. To
date, no Defendants have appeared, and the Court has entered
default against all Defendants except Gee4Bee Wireless, Inc.
Dkt. #16. Plaintiff filed an Amended Complaint on April 3,
2018. Dkt. #19. The instant motion followed on June 14, 2018.
to Plaintiff, MetroPCS is a wireless telephone carrier with a
national network and brand. Dkt. #25 at ¶ 2. MetroPCS
sells wireless personal communications services to its
customers, including voice communications, wireless internet
services, ringtones, SMS texting, instant messaging, and
other wireless phone and data services. Id. MetroPCS
focuses on offering “unlimited” pay-in-advance
(“prepaid”) plans. Id. It relies on its
dealers and subdealers to market and sell MetroPCS-packaged
mobile wireless telephones, data modems, and accessories to
users of MetroPCS's service, and to provide customer
Abdallah Nofal, on behalf of 35-46 Broadway, executed an
Exclusive Subdealer's Agreement to sell MetroPCS brand
services (“Subdealer Agreement”) on or about
August 20, 2015. Id. at ¶ 3 and Dkt. #24 at
¶ 11, Ex. E. Paragraph 1 of the Subdealer Agreement
provided that “Exclusive Subdealer shall comply with
all terms and conditions of the Dealer Agreement, including
but not limited to . . . [the] covenant not to compete
(Section 16.7).” Dkt. #24 at ¶ 11, Ex. E. Pursuant
to the Dealer Agreement, 35-46 Broadway agreed that it would
not solicit or divert MetroPCS customers during the term of
the Dealer Agreement and for six months following
All customers are owned by MetroPCS and not by Dealer. During
the term of this Agreement and for a period of six (6) months
after termination of this Agreement (whether voluntary or
involuntary, with or without cause), Dealer, its principals,
owners, partners, members, shareholders, officers, directors,
employees, agents (“Affiliated Persons”) and any
entity in which an Affiliated Person owns an interest and/or
any successor entity to Dealer (Affiliated Entity”)
shall not at any time (i) request any MetroPCS customer to
curtail or cancel its business with MetroPCS, or (ii)
otherwise solicit, divert or attempt to divert any such
MetroPCS customer from patronizing MetroPCS.
Id., Ex. F at ¶ 2.4 and Ex. E at ¶ 1.
Dealer Agreement also contains a six-month non-competition
period after termination or expiration of the agreement:
Dealer covenants and agrees that during the Term of this
Agreement and for a period of at least six (6) months
following any termination or expiration of this Agreement,
Dealers shall not, and will cause its Affiliated Persons and
Affiliated Entities, not to directly or indirectly (including
by licensing) engage or participate in, or acquire, manage,
operate, control or participate in the management, operation
or control of, either alone or jointly, any entity that
engages in the sale, resale or distribution of any wireless
telephone or wireless internet data service including,
without limitation, any other wireless phone, or wireless
internet service, or service plan that offers unlimited local
and/or long distance calls and/or unlimited wireless internet
service for a flat price, within a two (2) mile radius of
Dealer's MetroPCS Storefront Locations. If Dealer
breaches this warranty and covenant, then, in addition to any
other legal or equitable remedy that MetroPCS may have, the
post-termination of this warranty covenant will be extended
for one (1) day for each day during which the Dealer's
breach was ongoing.
Dkt. #24 at ¶ 12, Ex. F at ¶ 16.7.
non-compete and non-solicitation provisions expressly apply
to 35-46 Broadway itself, and to its owners, shareholders,
members, officers, partners, and directors (“Affiliated
Persons”) and any entity in which an Affiliated Person
owns an interest (“Affiliated Entity”).
Id., Ex. F at ¶ 2.4 and Ex. E at ¶ 1.
35-46 Broadway (through Abdallah Nofal) executed the
Subdealer Agreement on or about August 20, 2015. Dkt. #25 at
¶ 3 and Dkt. #24 at ¶ 11, Ex. E. Plaintiff alleges
that on or before May 2017, 35-46 Broadway breached the
Subdealer Agreement, as a result of which MetroPCS'
Master Dealer (Licensed Products) provided Defendants a
Notice of Termination of the Subdealer ...