Under Consideration in Novus Non-Compete Suit, Court Documents Say
The parties involved in a non-compete suit filed by Novus Franchising
Inc. in Savage, Minn., have motioned jointly for the court to extend
the trial date to 90 days after the court rules on the defendants'
recent motion for partial summary judgment, "to give the parties
an opportunity to complete their settlement discussions once they
learn of the issues remaining to be resolved at trial," according
to court documents filed earlier this week. The suit originally
was filed in the U.S. District Court for the District of Minnesota
in Fourth Judicial District of the State of Minnesota against Nathan
Hemperley and Corey Hemperly of the Windshield Doctor in Pocatello,
Idaho, and Rande Oksendahl of Windshield Rescue. It was moved to
the U.S. District Court for the District of Minnesota after its
"The parties continue to discuss the possibility of resolving
these matters without litigation," write the attorneys for
both the plaintiff and defendants in this week's motion. "The
parties have discovered, however, that their settlement discussions
cannot proceed further until the Court rules on the pending Motions
for Partial Summary Judgment, so that the parties will be fully
advised of the issues that remain in these cases."
Prior to opening their own auto glass replacement businesses, the
defendants previously held Novus franchising agreements, and Novus
contends that they have violated the "post-termination covenants"
in the agreement, which includes a 2-year non-compete clause.
The defendants, who offered replacement in addition to repair during
their time as Novus franchisees, claim that because Novus franchises
do not conduct windshield replacements, only their repair activities
could have been construed as part of their operations during their
time as franchisees. In addition, the defendants cite definition
of a competitive business within the Novus franchise agreement,
as follows: "
any business that has any windshield,
automotive or glass repair component as part of the business will
be considered competitive with or similar to the Novus® Business."
The defendants argue that the scope of this agreement is so broad
that it would even keep them from operating a business involving
auto-body, transmission, brake and/or engine repair. The memorandum
in support of the motion also notes that the court has allowed the
companies to continue to operate their businesses during litigation
because the franchise agreement is "not reasonable in scope."
The motion also cites an earlier Idaho case involving a non-compete
agreement, as follows: "Non-compete provisions must be reasonable,
which is to say they must not be more restrictive than necessary
to protect a legitimate business interest."
Currently, the pre-trial is scheduled to be held prior to September
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