United States District Court, M.D. Louisiana
DAVID A. STEWART
H & E EQUIPMENT SERVICES, INC.
RULING ON MOTIONS FOR SUMMARY JUDGMENT
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Motion for Partial Summary
Judgment. (R. Doc. 37). The motion is opposed. (R. Doc. 46).
Plaintiff has filed a Reply. (R. Doc. 52).
before the Court is Defendant's Motion for Summary
Judgment (R. Doc. 47). The motion is opposed. (R. Doc. 55).
Defendant has filed a Reply. (R. Doc. 64). Plaintiff has
filed a Surreply. (R. Doc. 67).
parties' motions for summary judgment concern the same
issues and arguments, the Court considers them together in a
Procedural History and Background
A. Stewart (“Plaintiff” or
“Employee”) was employed by H&E Equipment
Services, Inc. (“Defendant, ” “Company,
” or “H&E”), or its predecessor,
beginning in July 1993. Plaintiff sold cranes and supervised
others selling cranes for Defendant. On or about February 15,
2013, in light of Plaintiff's promotion to branch manager
of Defendant's Birmingham branch, the parties entered
into an employment contract titled “Retainer,
Confidentiality and Non-Competition Agreement.” (R.
Doc. 1-1, “Agreement”).
preamble, the Agreement states that “in consideration
of: (1) continued employment by H&E of Employee on an
at-will basis subject to the provisions of Section 5(d)
below; (2) promotion to the position of Branch
Manager, and an increase in base salary; and (3)
H&E's further agreement to provide Employee with
access to confidential Company information and data, Employee
hereby agrees [to the following five Sections of the
relevant to this dispute are the Sections governing
non-competition covenants (Section 2) and continuing
compensation (Section 4). Section 2(a) of the Agreement
provides the following, with emphasis added:
During Employee's employment by Company and for a period
of twelve (12) months immediately following the termination
of Employee's employment for any reason whatsoever,
whether or not for cause, Employee will not,
directly or indirectly (whether through affiliates, relatives
or otherwise) [engage in certain activities consisting of
competition or solicitation].
2(c) of the Agreement provides the following, with emphasis
Before taking any position with any person or entity during
the twelve-month period following the termination of
Employee's employment for any reason, with or without
cause, Employee will give prior written notice to
Company of the name of such person or entity.
4(a) of the Agreement provides the following, with emphasis
In the event Employee's employment is terminated by
Company without cause, the provisions of Section 2
above shall apply and, as consideration therefor, Company
shall pay to Employee, every two weeks one-twenty sixth
(1/26th) of the total compensation paid to
Employee by Company during the twelve-month period
immediately preceding termination of Employee's
parties dispute whether Plaintiff was fired without cause as
required by Section 4(a) for the payment of compensation
continuation and whether Defendant's duty to pay
compensation continuation is dependent on Defendant's
enforcement of its rights to non-competition and
non-solicitation pursuant to Section 2 of the Agreement.
terminated Plaintiff's employment on or about May 1,
2015. At that time, Defendant presented
Plaintiff with a document titled “Separation Agreement
and Release.” (R. Doc. 1-2). Through this document,
Defendant offered to pay Plaintiff severance in the amount of
$50, 000 for the release of any legal rights Plaintiff may
have against Defendant. (R. Doc. 1-2 at 1). If Plaintiff
agreed to sign the release, the release would have
effectively superseded the Agreement, with the exception that
it would “not impact or affect any restrictive
covenants between [Plaintiff] and the Company such as any
non-competition promises, non-solicitation promises, or
confidentiality promises.” (R. Doc. 1-2 at 3).
Plaintiff did not sign the release.
12, 2015, Defendant confirmed in writing that Plaintiff
refused to sign the release, further stating its position
that it would not pay continued compensation pursuant to
Section 4 of the Agreement because it would not enforce
Plaintiff's non-compete and non-solicitation obligations
in Section 2 of the Agreement. (R. Doc. 47-9).
August 3, 2015, Plaintiff initiated this action, alleging
that Defendant terminated his employment “without
cause” and, accordingly, he is entitled to $169, 302.73
pursuant to the terms of Section 4(a) of the Agreement. (R.
December 10, 2015, Plaintiff filed his first Motion for
Summary Judgment. (R. Doc. 16). Plaintiff argued that based
on the plain language of Paragraph 4(a) of the Agreement,
Defendant breached the contract and he is entitled to the 12
months of continued compensation sought. The Court denied the
motion as premature pursuant to Rule 56(d), holding that
Defendants were entitled to conduct discovery regarding the
events concerning Plaintiff's termination, as well as
regarding the formation and interpretation of language in the
Agreement. (R. Doc. 32).
August 3, 2016, after the close of non-expert discovery,
Plaintiff filed the instant Motion for Partial Summary
Judgment, which seeks summary judgment on all issues with the
exception of damages. (R. Doc. 37). Plaintiff argues that
there is no dispute that he was terminated “without
cause” because Defendant has admitted that
Plaintiff's “employment was not terminated because
of any specific act of ‘wrongdoing, misconduct or
misfeasance.'” (R. Doc. 37-1 at 2). Plaintiff
further argues that there is no dispute that he complied with
the requirements of the compensation continuation provisions
in Paragraph 4(a) by refraining from competing with Defendant
while employed and for a full year following termination. (R.
Doc. 37-1 at 5). Plaintiff does not seek summary judgment on
the issue of damages, arguing that the parties dispute the
specific amounts of compensation, attorneys' fees and
costs to which Plaintiff is entitled. (R. Doc. 37 at 1).
September 23, 2016, Defendant filed its Motion for Summary
Judgment, which seeks dismissal of the action in its
entirety. (R. Doc. 47). Defendant argues that the
compensation continuation provision in Paragraph 4(a) is
unenforceable because there is no dispute that Defendant
advised Plaintiff at the time of his termination that it
would not enforce the non-compete and non-solicitation
provisions of the Agreement. (R. Doc. 47-1 at 5-7). In
addition, Defendant argues that the term “cause”
in the contract should be interpreted by its ordinary
dictionary meaning, and that Defendant properly terminated
Plaintiff because of his performance in the service
department. (R. Doc. 47-1 at 7-9). Finally, Defendant argues
that Plaintiff has not demonstrated that he suffered any
damages because he did not seek another position after his
employment terminated despite being informed that Defendant
would not enforce the non-complete and non-solicitation
provisions of the Agreement. (R. Doc. 47-1 at 9-10).
Summary Judgment Standard
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact.”
Fed.R.Civ.P. 56(a). The party seeking summary judgment
carries the burden of demonstrating that there is an absence
of evidence to support the non-moving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
When the burden at trial rests on the non-moving party, the
moving party need only demonstrate that the record lacks
sufficient evidentiary support for the non-moving party's
case. Id. The moving party may do this by showing
that the evidence is insufficient to prove the existence of
one or more essential elements of the non-moving party's
case. Id. A party must support its summary judgment
position by “citing to particular parts of materials in
the record” or “showing that the materials cited
do not establish the absence or presence of a genuine
dispute.” Fed.R.Civ.P. 56(c)(1).
the Court considers evidence in a light most favorable to the
non-moving party, the non-moving party must show that there
is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986). Conclusory
allegations and unsubstantiated assertions will not satisfy
the non-moving party's burden. Grimes v. Tex.
Dep't of Mental Health, 102 F.3d 137, 139-40 (5th
Cir. 1996). Similarly, “[u]nsworn pleadings, memoranda
or the like are not, of course, competent summary judgment
evidence.” Larry v. White, 929 F.2d 206, 211
n.12 (5th Cir. 1991). If, once the non-moving party has been
given the ...