Daniel James Donovan, Jr. v. Hobbs Group, LLC ( 2006 )


Menu:
  •                                                           [DO NOT PUBLISH]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
    2
    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.
    3
    

Document Info

Docket Number: 05-16725

Judges: Marcus, Wilson, Cox

Filed Date: 5/16/2006

Precedential Status: Non-Precedential

Modified Date: 3/2/2024