Daniel James Donovan, Jr. v. Hobbs Group, LLC

[DO NOT PUBLISH]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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