Defendants 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 for comment.

The defendants seek to recover their attorneys' fees if their motion for summary judgment is granted.

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