United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE.
following motions are before the Court: Second Motion
for Partial Summary Judgment (Rec. Doc. 39) filed by
Michael Scott McLaughlin; Motion for Summary Judgment
(Rec. Doc. 46) filed by BancorpSouth Insurance
Services, Inc. Both motions are opposed. The motions,
submitted on December 13, 2017, and January 24, 2018, are
before the Court on the briefs without oral argument.
dispute arises out of Michael Scott McLaughlin's
resignation from Bancorp Insurance Services, Inc. (Bancorp or
BXSI), an insurance brokerage firm. McLaughlin had been
employed with Bancorp since 2004 (and its predecessor since
1994). McLaughlin resigned from Bancorp on August 8, 2017, to
accept employment with a competitor, Alliant Insurance
Services, Inc. McLaughlin told Bancorp that he was leaving to
open a Baton Rouge office for Alliant.
consolidated actions pertain to a non-solicitation provision
contained in McLaughlin's employment contract with
Bancorp (“the Producer Agreement”). McLaughlin
initiated suit in this Court in order to have the
non-solicitation provision declared invalid under Louisiana
law. Bancorp then filed a new lawsuit in this Court to
enforce the agreement and immediately moved for preliminary,
injunctive relief. Bancorp's separate lawsuit was
transferred to this Court and the two cases were
consolidated. The Court has twice rejected Bancorp's
attempt to obtain preliminary injunctive relief. (Rec. Docs.
now moves for partial summary judgment contending that the
non-solicitation provision contained in the Producer
Agreement is invalid and unenforceable under La. R.S. §
23:921. McLaughlin seeks partial summary judgment so that he
can call on his former customers completely unfettered by the
moves for summary judgment in cross fashion seeking a ruling
that the Producer Agreement is valid and enforceable, and
that the non-solicitation provision contained therein is
trial is scheduled for May 7, 2018.
judgment is appropriate only if "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, " when
viewed in the light most favorable to the non-movant,
"show that there is no genuine issue as to any material
fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d
754, 759 (5th Cir. 2002) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute
about a material fact is "genuine" if the evidence
is such that a reasonable jury could return a verdict for the
non-moving party. Id. (citing Anderson, 477
U.S. at 248). The court must draw all justifiable inferences
in favor of the non-moving party. Id. (citing
Anderson, 477 U.S. at 255). Once the moving party
has initially shown "that there is an absence of
evidence to support the non-moving party's cause, "
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986),
the non-movant must come forward with "specific
facts" showing a genuine factual issue for trial.
Id. (citing Fed.R.Civ.P. 56(e); Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).
Conclusional allegations and denials, speculation, improbable
inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts
showing a genuine issue for trial. Id. (citing
SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
faced with a well-supported motion for summary judgment, Rule
56 places the burden on the non-movant to designate the
specific facts in the record that create genuine issues
precluding summary judgment. Jones .v Sheehan, Young,
& Culp, P.C., 82 F.3d 1334, 1338 (5th
Cir. 1996). The district court has no duty to survey the
entire record in search of evidence to support a
non-movant's position. Id. (citing Forsyth
v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1992);
Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307
(5th Cir. 1988)).
Revised Statute § 23:921 provides in relevant part:
Every contract or agreement, or provision thereof, by which
anyone is restrained from exercising a lawful profession,
trade, or business of any kind, except as provided in this
Section, shall be null and void. However, every contract or
agreement, or provision thereof, which meets the exceptions
as provided in this Section, shall be enforceable.
Any person, including a corporation and the individual
shareholders of such corporation, who is employed as an
agent, servant, or employee may agree with his employer to
refrain from carrying on or engaging in a business similar to
that of the employer and/or from soliciting customers of the
employer within a specified parish or parishes, municipality
or municipalities, or parts thereof, so long as the employer
carries on a like business therein, not to exceed a period of
two years from termination of employment . . . .
La. R.S. § 23:921(A)(1), (C) (emphasis added).
statute defines the limited circumstances under which a
noncompetition or non-solicitation clause may be valid in the
context of certain enumerated business relationships.
SWAT 24 Shreveport Bossier, Inc. v. Bond, 808 So.2d
294, 298 (La. 2001) (citing Louisiana Smoked Prods., Inc.
v. Savoie's Sausage & Food Prods., 696 So.2d
1373, 1379 (La. 1977)). Because such covenants are in
derogation of the common right, they are strictly construed
against the party seeking their enforcement. Id.
(citing Hirsh v. Miller,187 So.2d 709, 714 (La.
1966); Turner Prof. Servs. v. Broussard, 762 So.2d
184, 185 (La.App. 1st Cir. 2000)). Under Louisiana
law, an ambiguous contractual provision must be interpreted
against the party who furnished its text. Arms ...