Daniel James Donovan, Jr. v. Hobbs Group, LLC , 181 F. App'x 782 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 05-16725 U.S. COURT OF
Non-Argument Calendar APPEALS
________________________ ELEVENTH CIRCUIT
MAY 16, 2006
D. C. Docket No. 05-01619-CV-CC-1 THOMAS K. KAHN
CLERK
DANIEL JAMES DONOVAN, JR.,
Plaintiff-Appellee,
versus
HOBBS GROUP, LLC,
HILB, ROGAL AND HOBBS COMPANY,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 16, 2006)
Before MARCUS, WILSON and COX, Circuit Judges.
PER CURIAM:
Plaintiff Daniel James Donovan, Jr. sued his former employer Hobbs Group
LLC (“Hobbs”) and Hobbs’s parent corporation Hilb, Rogal and Hobbs Company
(HRH) seeking a declaration that the nonsolicitation and nondisclosure clauses (“the
restrictive covenants”) in an Employment, Non-Solicitation and Confidentiality
Agreement that he signed in 1997 with Hobbs (“the Agreement”) are unenforceable
as a matter of law and an seeking an injunction prohibiting Hobbs and HRH from
attempting to enforce the restrictive covenants. The district court held that the
Agreement was subject to strict scrutiny, found that the restrictive covenants
contained therein are unenforceable as a matter of law, and granted summary
judgment for Donovan.
Hobbs and HRD urge us to vacate the district court’s judgment for Donovan
and reverse its denial of their request for discovery so that they may gather facts that
might support their contentions that “sale of business” scrutiny applies and, therefore,
the terms of the employment agreement may be blue penciled or reformed so as to be
enforceable.
In a previous case involving the same defendants and the same form agreement,
we applied strict scrutiny and determined that the restrictive covenants are overbroad
and unenforceable under Georgia law. See MacGinnitie v. Hobbs Group, LLC, 420
F.3d 1234, 1241 (11th Cir. 2005). In this case, we affirm the judgment of the district
court because we hold that, under any level of scrutiny, the restrictive covenants in
the employment agreement are unenforceable. In its order granting summary
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judgment, the district court identified their fatal deficiencies. (R.2-29 at 20-26.) And
assuming, arguendo, that “sale of business” scrutiny applies, the blue pencil cannot
redeem these unreasonably restrictive clauses. The blue pencil is simply a tool of
severance – removing the unenforceable aspects of restrictions and leaving the
enforceable ones. Watson v. Waffle House, Inc., 324 S.E.2d 175, 177 (Ga. 1985);
Richard P. Rita Personnel Services Intern., Inc. v. Kot, 191 S.E.2d 79, 80 (Ga. 1972);
New Atlanta Ear, Nose & Throat Associates, P.C. v. Pratt, 560 S.E.2d 268, 273 (Ga.
App. 2002). It cannot rewrite the restrictive covenants, inserting clauses and
providing sufficient limitations so as to render the restrictions reasonable and
enforceable under Georgia law. New Atlanta, 560 S.E.2d at 273. For this reason, the
district court did not err in denying the motion for discovery or in granting summary
judgment for Donovan.
The Defendants also argue that the district court erred in determining that
Georgia law governs the interpretation of the Agreement. We find no error in the
application of Georgia law.
AFFIRMED.
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