File Motion for Summary Judgment in Novus Non-Compete Suit
The defendants in a non-compete suit filed by Novus Franchising
Inc. in Savage, Minn., have filed a motion for partial summary judgment.
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 original filing.
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."
Novus vice president of marketing and product development David
Osland declined to comment on the case. Neither defendant was available
The defendants seek to recover their attorneys' fees if their motion
for summary judgment is granted.
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