Midwest Motor Supply Co. v. Nietsch

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Midwest Motor Supply Co.
d/b/a Kimball Midwest,
Plaintiff,
v.
Rich Nietsch, et al.,
Case No. 2:22-cv-4049
Judge Michael H. Watson
Magistrate Judge Vascura
Defendants.
OPINION AND ORDER
This matter is before the Court on Midwest Motor Supply Co.'s ("Plaintiff'')
motion for partial summary judgment, ECF No. 137, and Rich Nietsch ("Nietsch"),
Chad Davis ("Davis"), Rick Kirkpatrick ("Kirkpatrick"), Cliff Sachs ("Sachs"),
Pamela Schrader ("Schrader''), Sean Patrick ("Patrick," and collectively with
Nietsch, Davis, Kirkpatrick, Sachs, and Schrader, "Other Defendants"), and Bill
Hoeftmann's ("Hoeftmann," and collectively with Other Defendants,
"Defendants") motion for summary judgment, ECF No. 138.1 Additionally, the
Court addresses Defendants' motion to strike portions of Plaintiffs reply in
support of its motion for partial summary judgment, ECF No. 153. All three
1 Plaintiff filed redacted versions of its motion for partial summary judgment, ECF Nos.
114, 145, and a sealed, unredacted version of the same, ECF No. 137. Similarly,
Defendants filed redacted versions of their motion for summary judgment, ECF Nos.
112,146, and a sealed, unredacted version of the same, ECF No. 138. For ease of
reference, the Court will refer to and cite from the sealed, unredacted motions, ECF
Nos. 137, 138, for purposes of this Order.
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motions are fully briefed and ripe for consideration. ECF Nos. 135, 136, 148,
149, 158, 165.
I. STATEMENT OF FACTS
Plaintiff is an Ohio corporation that sells maintenance, repair, and
operations ("MRO") supplies throughout the United States. Third Amended
Complaint ("TAC") ,r 1, ECF No. 59. Defendants are all former employees of
Plaintiff, each having worked in sales for Plaintiff at various times and for various
durations over the past twenty-five years. See Davis Deel., ECF No. 146-1;
Kirkpatrick Deel., ECF No. 146-3; Nietsch Deel., ECF No. 146-4; Sachs Deel.,
ECF No. 146-5; Schrader Deel., ECF No. 146-6; Patrick Deel., ECF No. 146-7;
Hoeftmann Dep. 88:12-14, ECF No. 138-2.
At or around the time that each Defendant started working for Plaintiff, they
all signed employment agreements ("Employment Agreements"). Nietsch Agmt.,
ECF No. 2-1; Davis Agmt., ECF No. 2-3; Kirkpatrick Agmt., ECF No. 2-6; Sachs
Agmt., ECF No. 2-7; Schrader Agmt., ECF No. 2-8; Patrick Agmt., ECF No. 130-
4; Hoeftmann Agmt., ECF No. 2-5. The agreement that Hoeftmann signed
("Hoeftmann Agreement") differs slightly from the agreements that the Other
Defendants signed ("Other Employment Agreements"), but they all contain, inter
alia, restrictive covenants that prohibit certain conduct by Defendants following
the termination of their employment with Plaintiff. Compare Hoeftmann Agmt.,
ECF No. 2-5, with Nietsch Agmt., ECF No. 2-1; Davis Agmt., ECF No. 2-3;
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Kirkpatrick Agmt., ECF No. 2-6; Sachs Agmt., ECF No. 2-7; Schrader Agmt.,
ECF No. 2-8; Patrick Agmt., ECF No. 130-4.
Hoeftmann left his employment with Plaintiff in December 2017.
Hoeftmann Dep. 49:13-50:4, ECF No. 138-2. Shortly thereafter, he started
working at MRO Systems-an MRO supplier that competes with Plaintiff, which
Hoeftmann formed with non-parties Robert Sapio and Paul Paternoster. Sapia
Dep. 11:6--12:17; Hoeftmann Dep. 7:12-8:1.
Then, at various points from 2019 to 2022, the Other Defendants similarly
left their employment with Plaintiff and began working for MRO Systems ( except
for Patrick, who worked for 1st Ayd-another competitor of Plaintiff-following his
employment with Plaintiff). Davis Deel., ECF No. 146-1; Kirkpatrick Deel., ECF
No. 146-3; Nietsch Deel., ECF No. 146-4; Sachs Deel., ECF No. 146-5; Schrader
Deel., ECF No. 146-6; Patrick Deel., ECF No. 146-7. In so doing, Plaintiff alleges
that Defendants violated various provisions of the Employment Agreements,
including the restrictive covenants contained therein. See generally TAC, ECF
No. 59. As a result, Plaintiff filed the action currently before the Court.
II. PROCEDURAL HISTORY
Plaintiff initially filed this case against only Nietsch, alleging breach of
contract and misappropriation of trade secrets. Compl., ECF No. 1. During the
ensuing fifteen months of litigation, Plaintiff amended its complaint three times,
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adding and dropping both claims and parties, leading to the now-operative TAC.
ECF No. 59.
The TAC asserts the following claims against Defendants, as well as Joe
Carroll ("Carroll") and Daniel Hayes ("Hayes"): ( 1) breach of contract;
(2) misappropriation of trade secrets under the Ohio Uniform Trade Secrets Act
("OUTSA"); (3) misappropriation of trade secrets under the Defend Trade Secrets
Act ("DTSA"); (4) conversion; (5) tortious interference; and (6) civil conspiracy.
The parties have since stipulated to dismissal of all claims against Carroll and
Hayes pursuant to Federal Rule of Civil Procedure 41(a)(1 )(A)(ii), ECF No. 122,
but the claims otherwise stand as alleged in the TAC.
Following unsuccessful mediation efforts, ECF No. 93, both Plaintiff and
Defendants now seek summary judgment. ECF Nos. 137, 138.
Ill. ANALYSIS
Defendants move for summary judgment on all six claims asserted against
them. ECF No. 138 at PAGEID # 4785. Plaintiff, on the other hand, moves for
summary judgment on only a subset of its claims: ( 1) its breach of contract
claims against all Defendants; (2) its tortious interference claims against all
Defendants; and (3) its civil conspiracy claims against all Defendants, save for
Schrader. ECF No. 137 at PAGEID # 2423.
The Court addresses the parties' arguments with respect to each claim
below. For the reasons therein, Plaintiff's motion for partial summary judgment,
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ECF No. 137, is GRANTED in part and DENIED in part, and Defendants'
motion for summary judgment, ECF No. 138, is GRANTED in part and DENIED
in part.
A. Standard of Review
The standard governing summary judgment is set forth in Federal Rule of
Civil Procedure 56(a): "The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law."
The Court must grant summary judgment if the opposing party ''fails to
make a showing sufficient to establish the existence of an element essential to
that party's case" and "on which that party will bear the burden of proof at trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When reviewing a summary
judgment motion, the Court must draw all reasonable inferences in favor of the
nonmoving party, who must set forth specific facts showing there is a genuine
dispute of material fact for trial, and the Court must refrain from making credibility
determinations or weighing the evidence. Matsushita Elec. Indus. Co., ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248-49, 255 (1986). The Court disregards "all
evidence favorable to the moving party that the jury would not be required to
believe." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000)
(citation omitted). Summary judgment will "not lie if the dispute about a material
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fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party." Anderson, 477 U.S. at 248 (internal citations
and quotation marks omitted).
The Court is not "obligated to wade through and search the entire record
for some specific facts that might support the nonmoving party's claim."
lnterRoya/ Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). The Court
may rely on the parties to call attention to the specific portions of the record that
demonstrate a genuine issue of material fact. Wells Fargo Bank, N.A. v. LaSalle
Bank N.A., 643 F. Supp. 2d 1014, 1022 (S.D. Ohio 2009).
B. Breach of Contract Claims
Plaintiffs breach of contract claims are premised on alleged violations of
two different aspects of the Employment Agreements by each Defendant:
(1) restrictive covenants; and (2) a confidentiality provision. TAC, ECF No. 59 at
PAGEID # 670.
The Employment Agreements are subject to Ohio law. Nietsch Agmt.1J 12,
ECF No. 2-1; Davis Agmt. ,r 12, ECF No. 2-3; Kirkpatrick Agmt.1J 12, ECF No. 2-
6; Sachs Agmt.1J 12, ECF No. 2-7; Schrader Agmt.1J 12, ECF No. 2-8; Patrick
Agmt. ,r 12, ECF No. 130-4; Hoeftmann Agmt. 1J 8, ECF No. 2-5; see Tele-Save
Merch. Co. v. Consumers Distrib. Co., 814 F.2d 1120, 1122 (6th Cir. 1987)
("Ohio choice-of-law principles strongly favor upholding the chosen law of the
contracting parties."). "Under Ohio law, the elements of a breach of contract
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claim are: (1) the existence of a contract; (2) performance by the plaintiff;
(3) breach by the defendant; and (4) damage or loss to the plaintiff as a result of
the breach." V & M Star Steel v. Centimark Corp., 678 F.3d 459, 465 (6th Cir.
2012) (citations omitted); see also Lucarell v. Nationwide Mut. Ins. Co., 97
N.E.3d 458, 469 (Ohio 2018) (restating the same elements.for a breach of
contract claim).
1. Restrictive Covenants
Plaintiff argues it is entitled to summary judgment on its breach of
contract claims with respect to the restrictive covenants because "[t]he
undisputed evidence shows that Hoeftmann breached his covenant not to
compete" and that all Defendants "breached their agreements not to
solicit." ECF No. 137 at PAGEID # 2443. Defendants argue, on the other
hand, that they are entitled to summary judgment on the same because
the restrictive covenants at issue are "vastly overbroad and
unenforceable." ECF No. 138 at PAGEID # 4812. Alternatively,
Defendants argue that Plaintiff "cannot provide any evidence to
demonstrate that Defendants" violated the restrictive covenants. Id. at
PAGEID # 4816.
Under Ohio law, restrictive covenants are enforceable only if they are
reasonable. See Union Home Mortg. Corp. v. Cromer, 31 F.4th 356, 366 (6th
Cir. 2022) (citing Lake Land Emp. Grp. of Akron, LLC v. Co/umber, 804 N.E.2d
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27, 33 (Ohio 2004)). To be reasonable, restrictive covenants must: "(1) be 'no
greater than is required for the protection of the employer,' (2) 'not impose undue
hardship on the employee,' and (3) not be 'injurious to the public."' James B.
Oswald Co. v. Neale, 98 F.4th 666,673 (6th Cir. 2024) (quoting Raimonde v.
Van Vlerah, 325 N.E.2d 544,547 (Ohio 1975)). The party seeking to enforce the
restrictive covenant must establish all three of the Raimonde elements "by clear
and convincing evidence." Id. (citation omitted). In assessing the
reasonableness of a restrictive covenant under Raimonde, "courts should keep in
mind nine fact-specific considerations."2 Id. (citation modified).
If the Court finds any covenant unreasonable, it has discretion to modify it
"to make it reasonable and enforceable, [though] it is not required to do so."
Kross Acquisition Co., LLC v. Groundworks Ohio LLC, 236 N.E.3d 453,457
(Ohio Ct. App. 2024) (citation omitted).
a. Hoeftmann Agreement
The Hoeftmann Agreement contains a noncompete provision and a non-
2 The nine fact-specific considerations enumerated in Raimonde are: (1) the absence or
presence of limitations as to time and space; (2) whether the employee represents the
sole contact with the customer; (3) whether the employee is possessed with confidential
information or trade secrets; (4) whether the covenant seeks to eliminate competition
which would be unfair to the employer or merely seeks to eliminate ordinary
competition; (5) whether the covenant seeks to stifle the inherent skill and experience of
the employee; (6) whether the benefit to the employer is disproportional to the detriment
to the employee; (7) whether the covenant operates as a bar to the employee's sole
means of support; (8) whether the employee's talent which the employer seeks to
suppress was actually developed during the period of employment; and (9) whether the
forbidden employment is merely incidental to the main employment. Raimonde, 325
N.E.2d at 547.
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solicitation provision, both of which contain two restrictive covenants at issue
here. See Hoeftmann Agmt. 1"I 5-6, ECF No. 2-5. The Court addresses the
parties' arguments with respect to each of those restrictive covenants before
turning to the Other Employment Agreements.
i. Noncompete Paragraph 5(A)
The first restrictive covenant at issue prohibits Hoeftmann from associating
with any business that "competes directly or indirectly with [Plaintiff] or [Plaintiff's]
employees, sales representatives or independent contractors with respect to their
sales of [Plaintiff's] products" for two years following the termination of his
employment with Plaintiff. Hoeftmann Agmt. 115(A), ECF No. 2-5. However, the
covenant is also subject to a violation clause, which provides that, if Hoeftmann
violates the covenant, "the terms of [the] covenant shall continue for an additional
two (2) year period from the time that such violations cease."3 Hoeftmann Agmt.
,r 5, ECF No. 2-5.
a) Employer's Protection
The first Raimonde element requires a restrictive covenant to be "no
greater than is required for the protection of the employer." Raimonde, 325
N.E.2d at 547. In other words, restrictive covenants ''will be enforced only to the
3 The parties refer to this clause as a "tolling provision." See, e.g., ECF No. 136 at
PAGEID # 2304; ECF No. 138 at PAGEID # 4812. But the clause does not "toll"
anything because, under the agreement's plain language, a violation of the restrictive
covenant automatically extends its application by two years. Hoeftmann Agmt. ,r 5, ECF
No. 2-5. Thus, the Court refers to the same as a "violation clause" herein.
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extent that the restraints imposed thereby are reasonably necessary to protect
the employer's legitimate business interests." James B. Oswald Co., 98 F.4th at
673. "It is the employer's burden to prove that there is a legitimate business
interest to be protected" by a restrictive covenant. Total Quality Logistics, LLC v.
EDA Logistics LLC, No. 23-3713, 2024 WL 4372312, at *5 (6th Cir. Oct. 2, 2024).
Plaintiff contends that this restrictive covenant is "tailored to advance [its]
legitimate interests in protecting existing customer relationships and preventing
[Hoeftmann] from using the skill, experience, training and confidential information
[he] acquired during [his] tenure in a manner advantageous to a competitor."
ECF No. 137 at PAGEID # 2446.
The Court agrees that Plaintiff has identified legitimate business interests
tied to this restrictive covenant. See Union Home Mortg. Corp. v. Fratelli, 2025
WL 639315, at *11 (N.D. Ohio Feb. 27, 2025), appeal dismissed sub nom., 2025
WL 1756904 (6th Cir. June 9, 2025) ("Employers have legitimate business
interests in preventing a former employee from using the former employer's
customer lists or contacts to solicit new customers and in preventing a former
employee from using the confidential information the former employee acquired
during employment in a manner advantageous to a competitor." (citation
modified)). But, for the following reasons, the covenant is not reasonably
necessary to protect those interests.
With respect to temporal limitations, this noncompete provision applies in
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the first instance for two years. Hoeftmann Agmt. 1J 5, ECF No. 2-5. Two years
"falls well within the range of temporal restrictions that Ohio courts have held to
be reasonable for restrictive covenants." Fratelli, 2025 WL 639315, at *13 (citing
cases). However, by Plaintiff's General Sales Manager's own admission, the
violation clause could cause the restrictive covenant to apply indefinitely.
Thompson Dep. 88:9-25, 89:1-3, ECF No. 138-3. For example, the parties
plainly bargained for a two-year period of noncompetition. But, under the
violation clause, Hoeftmann could abide by the restriction for one year, eleven
months, and thirty days before breaching on the very last day of the two-year
period. Rather than extend the noncompetition period for a single day, thereby
giving Plaintiff the benefit of its bargain, however, a full two years would be
added. And that could happen over and over, such that Plaintiff could obtain
many more than two years of noncompetition and yet the restriction would
remain in force. The Court finds that such a temporal limitation (or lack thereof)
alone renders this restrictive covenant unreasonable, as it could unfairly restrict
competition in perpetuity.4 See Doan Fam. Corp. v. Arnberger, 522 P.3d 364,
4 Plaintiff points the Court to Shepard & Assocs., Inc. v. Lokring Tech., LLC, No. 1:20-
CV-02488-PAB, 2022 WL 312711 (N.D. Ohio Feb. 2, 2022), to argue that the Court
should enforce the violation clause. ECF No. 137 at PAGEID # 2447. True, the Court
in Shepard enforced a tolling provision. 2022 WL 312711, at *41. But the noncompete
at issue in that case only applied for one year, and the tolling provision was, in fact, a
tolling provision that tolled the noncompete "during the period between the first violation
of any such restrictions and the entry of an order restraining the violation." Id. at *40
( emphasis added). As such, the tolling provision merely reinforced the parties'
agreement to have the noncompete apply for one year and, unlike here, it could not
operate to apply the noncompete in perpetuity. This case is therefore inapposite.
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373 (Ks. Ct. App. 2022) ("While a two-year period is a reasonable restriction
under these facts, an indefinite extension of that period is not a reasonable
restraint"); lnterra Int'/, LLC v. Al Khafaji, No. 1:16-cv-1523, 2017 WL 4866266, at
*13 (N.D. Ga. Mar. 21, 2017) ("The Court finds that this provision tolling the two
year limitation term during any breach by the employee is unreasonable because
of the lack of a definite time limitation.").
The lack of any geographic limitation on this covenant also weighs against
its enforceability. The covenant plainly prohibits Hoeftmann from associating
with any business that "competes directly or indirectly with" Plaintiff anywhere in
the world. Hoeftmann Agmt. 1J 5(A), ECF No. 2-5. But Hoeftmann's work for
Plaintiff was limited to at most Illinois, Wisconsin, Indiana, Missouri, and
Minnesota. Mccurdy Decl.1J 65, ECF No. 137-1; Hoeftmann Dep. 52:16-53:10,
ECF No. 138-2. And by Plaintiff's own admission, it "sells less than a quarter of
one percent of the total MRO business in the country" and "has thousands of
competitors" across the country. ECF No. 137 at PAGEID # 2424. Under such
circumstances, "the lack of any geographic limitations makes the noncompete
clause unduly restrictive." Reliant Services MJF, LLC v. Brown, No. CA2024-11-
081, 2025 WL 3440134, at *5 (Ohio Ct. App. Dec. 1, 2025) (citations omitted).
The second and ninth Raimonde factors, on the other hand, favor a finding
of enforceability for the following reasons, respectively: (1) evidence, which is
undisputed by Defendants, suggests that Hoeftmann was the "sole regular sales
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contact" for his customers when working for Plaintiff, Mccurdy Deel. ,r 20, ECF
No. 137-1; and (2) the work that Hoeftmann does for MRO Systems is very
similar to the work that he did for Plaintiff, Hoeftmann Dep. 7:14-8:13, ECF No.
138-2. But those factors are not enough to overcome the unreasonable temporal
and geographic limitations associated with the restrictive covenant.
Accordingly, the Court finds that the restraints imposed by this covenant
are not "reasonably necessary to protect [Plaintiff's] legitimate business
interests." See James B. Oswald Co., 98 F.4th at 673.
b) Undue Hardship
The Court additionally finds that this restrictive covenant imposes undue
hardship on Hoeftmann for three reasons.
First, "the covenant seeks to stifle the inherent skill and experience of'
Hoeftmann. See Raimonde, 325 N.E.2d at 547. Hoeftmann had roughly 16
years of experience as an MRO salesperson prior to his employment with
Plaintiff, and evidence suggests that he had already established himself in the
industry before that point. Hoeftmann Dep. 47:6-49:12, ECF No. 138-2. And
though "it is likely that he developed and honed some of his skills and talents
during his [fifteen] plus years of employment with" Plaintiff, a restrictive covenant
as broad as this one-which all but precludes Hoeftmann from exercising his
independently developed MRO skill and experience in any capacity for a
potentially indefinite period-is unduly burdensome. Fratelli, 2025 WL 639315,
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at *14; see Legacy Roofing Servs. LLC v. Fusco, 710 F. Supp. 3d 553, 572 (N.D.
Ohio 2024).
Second, the covenant is disproportional to the detriment of Hoeftmann
because it "disproportionately restricts competition without relation to protectable
D interests," for the reasons stated supra in Section 111.B.1.a.i.a. See Legacy,
710 F. Supp. 3d at 572. So, this Raimonde factor weighs against
reasonableness as well.
Third, the covenant effectively "operates as a bar to [Hoeftmann's] sole
means of support." See Raimonde, 325 N.E.2d at 547. Given that Hoeftmann
has worked in the MRO industry for the past 40 years, "it is reasonable to
conclude that [his] primary marketable skills are in" MRO sales. Legacy, 710 F.
Supp. 3d at 572. And because this restrictive covenant essentially precludes
Hoeftmann from working in the MRO industry, it would "greatly restrict [his] ability
to earn a living." Id.
Thus, this restrictive covenant, Hoeftmann Agmt. ,r S(A}, ECF No. 2-5,
unduly burdens Hoeftmann.
c) Injury to Public
The third Raimonde element "is primarily concerned with the public's
interest in promoting fair business competition." UZ Engineered Prods. Co. v.
Midwest Motor Supply Co., 770 N.E.2d 1068, 1081 (Ohio Ct. App. 2001) (citation
omitted). The parties do not squarely address this element, but it "is undisputed
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that there are a multitude of [MRO] options nationwide," see Thompson Dep.
58:5-8, ECF No. 138-3. Harter Inv. Mgmt., LLC v. Cutter, 257 F. Supp. 3d 892,
910 (S.D. Ohio 2017); see also UZ Engineered Prods. Co., 770 N.E.2d at 1081
(explaining that "the MRO industry is highly competitive"). So, the public "have
many options available for their [MRO] needs and are not restricted in moving
their business from one [MRO supplier] to another as a result of the" restrictive
covenant. Harter, 257 F. Supp. 3d at 910. Therefore, the covenant is not
injurious to the public.
d) Modification
For the above reasons, Plaintiff has failed to establish that this restrictive
covenant "is no greater than is required for the protection of the employer [and]
does not impose undue hardship on the employee." Raimonde, 325 N.E.2d at
547. Accordingly, Plaintiff cannot meet its burden under Raimonde, and the
Court finds that restrictive covenant to be unreasonable.
Though the Court has discretion to modify the covenant and enforce a
reasonable version of the same, "it is not required to do so." Kross, 236 N.E.3d
at 457 (citation omitted). Further, the Court's modification powers are limited "to
the extent necessary to protect the employer's legitimate interests." Raimonde,
325 N.E.2d at 547.
Here, there is another restrictive covenant within the Hoeftmann
Agreement-Noncompete Paragraph 5(8)-that protects the same interests
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asserted by Plaintiff in connection with this covenant. See infra Section
111.8.1.a.ii.a; Hoeftmann Agmt. ,r 5( B), ECF No. 2-5. Because the Court elects to
enforce a reasonable version of Noncompete Paragraph 5(8) to protect those
interests, infra Section 111.B.1.a.ii.d, modifying this covenant for the same exact
purpose is not "necessary." See Raimonde, 325 N.E.2d at 547. Moreover, in
light of the Court's decision to enforce Noncompete Paragraph 5(8) to the extent
it is reasonable, Plaintiff's claims will be unaffected by the Court's decision here
(because, as modified, this covenant would be functionally identical to the
version of Noncompete Paragraph 5(8) the Court enforces). See TAC ,r,r 62-73,
122-25, ECF No. 59; ECF No. 137 at PAGEID # 2449.
In other words, modification here would be redundant, so "the Court finds
that it would be inappropriate to reconstruct" this restrictive covenant under
Raimonde. Legacy, 710 F. Supp. 3d at 573.
e) Breach Assessment
Because Noncompete Paragraph 5(A) is unenforceable, Hoeftmann
cannot be held liable for an alleged breach of the same. Accordingly, the Court
GRANTS summary judgment to Hoeftmann on Plaintiff's breach of contract
claims against Hoeftmann, to the extent they are based on alleged violations of
Noncompete Paragraph 5(A) in the Hoeftmann Agreement. The Court DENIES
summary judgment to Plaintiff on the same.
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ii. Noncompete Paragraph 5(8)
The next restrictive covenant at issue prohibits Hoeftmann from
associating with any business that:
distributes or sells a Competing Product, in any city, town or place
within the states in which the Employee's Area5 is located where
[Plaintiff] has conducted, currently conducts, or reasonably expects to
conduct its business or where [Plaintiffs] sales representatives and/or
independent contractors have sold, currently sell, or reasonably
expect to sell [Plaintiffs] products.
Hoeftmann Agmt. ,r 5(8), ECF No. 2-5. As with Paragraph 5{A), the restriction
initially applies for a period of two years following Hoeftmann's separation from
Plaintiff, but it is similarly subject to a violation clause providing that, if Hoeftmann
violates the covenant, "the terms of [the] covenant shall continue for an additional
two {2) year period from the time that such violations cease." Hoeftmann Agmt.
,r 5, ECF No. 2-5.
a) Employer's Protection
Plaintiffs proffered interest in enforcing this restrictive covenant, as with
Paragraph 5(A), is to "protect□ existing customer relationships and prevent□
[Hoeftmann] from using the skill, experience, training and confidential information
[he] acquired during [his] tenure in a manner advantageous to a competitor."
ECF No. 137 at PAGEID # 2446. These are legitimate business interests. See
Fratelli, 2025 WL 639315, at *11. As set forth below, however, the Court again
5 The "Employee's Area" is defined in the Hoeftmann Agreement as Illinois and
Wisconsin. See Hoeftmann Agmt. Ex. B, ECF No. 2-5 at PAGEID # 80.
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finds that the restrictive covenant is not reasonably necessary to protect those
interests.
Because this covenant contains a violation clause identical to the one in
Paragraph S(A), the Court finds that it is subject to an unreasonable temporal
limitation for the reasons discussed supra in Section II1.B.1.a.i.a.
As for the geographic limitation, the covenant is limited in scope to
competitors that operate in the markets in which Hoeftmann sold products for
Plaintiff. See Hoeftmann Agmt. ,I 5(8), ECF No. 2-5. This is a reasonable
geographic scope. Cretor Constr. Equip. LLC V; Gibson, 738 F. Supp. 3d 950,
961 (S.D. Ohio 2024) ("As a general matter, so long as the geographic scope
corresponds to the geographic reach of the markets the person served while
employed at the former employer, as the proposed enforcement does here, that
supports enforceability.").
Other Raimonde factors weigh in favor of enforceability as well. See supra
Section 111.B.1.a.i.a (discussing the second and ninth Raimonde factors).
However, the indefinite temporal limitation, alone, is enough to take this
covenant beyond what is "reasonably necessary to protect [Plaintiffs] legitimate
business interests." See James B. Oswald Co., 98 F.4th at 673.
b) Undue Hardship
Undue hardship requires a showing that Hoeftmann's "employment options
would be severely limited if the restriction were enforced." UZ Engineered Prods.
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Co., 770 N.E.2d at 1080 (citation omitted); see also Harter, 257 F. Supp. 3d at
909 ("Undue hardship requires a greater showing of impact upon a defendant
than simple hardship." (citation modified)).
There are "thousands" of companies in the MRO industry throughout the
country and, pursuant to this restrictive covenant, Hoeftmann can work for any of
them that do not operate in the markets Hoeftmann served for Plaintiff.
Thompson Dep. 58:5-8, ECF No. 138-3; Hoeftmann Agmt. ,r 6(A), ECF No. 2-5.
Moreover, Defendants have not presented any evidence suggesting that
Hoeftmann's employment options outside of the territory he previously served are
"severely limited." UZ Engineered Prods. Co., 770 N.E.2d at 1080 (citation
omitted). Under such facts, the Court finds that the covenant does not subject
Hoeftmann to undue hardship.
c) Injury to Public
The reasoning set forth supra in Section 111.B.1.a.i.c applies here as well.
Accordingly, the Court finds that the covenant is not injurious to the public. See
Horter, 257 F. Supp. 3d at 910; see also UZ Engineered Prods. Co., 770 N.E.2d
at 1081.
d) Modification
Plaintiff has failed to meet its burden under Raimonde, so the Court finds
this restrictive covenant, too, unreasonable as drafted. But the only
unreasonable aspect of this restrictive covenant is its unlimited temporal scope,
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caused by the violation clause. Otherwise, Noncompete Paragraph 5(8) "is no
greater than is required for the protection of the employer, does not impose
undue hardship on the employee, and is not injurious to the public." Raimonde,
325 N.E.2d at 547. Therefore, the Court elects to modify Noncompete
Paragraph 5(8) to render it reasonable by striking the violation clause. The Court
will otherwise enforce the covenant as written.
e) Breach Assessment
Plaintiff argues it is entitled to summary judgment on its claims under this
covenant because "Hoeftmann testified he founded [MRO Systems], a company
he admits sells the same products, within that two-year restricted period, while
employed by [Plaintiff}" and "did so in a territory for which he was responsible"
while employed by Plaintiff. ECF No. 137 at PAGEID # 2449. The territory in
which Hoeftmann improperly competed with Plaintiff, according to Plaintiff, was in
Minnesota. Id. ( citing Mccurdy Deel. ,r 65, ECF No. 137-1).
True, it is undisputed that Hoeftmann sold competing products for MRO
Systems in Minnesota within the two-year window following his employment with
Plaintiff. Hoeftmann Dep. 88:12-14, ECF No. 138-2. But Noncompete
Paragraph 5(8) only prohibits Hoeftmann from associating with businesses that
sell competing products in Illinois and Wisconsin. See Hoeftmann Agmt. Ex. B,
ECF No. 2-5 at PAGEID # 80. So, Hoeftmann's sales for MRO Systems in
Minnesota are immaterial to Plaintiffs claims. And Plaintiff has not produced any
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evidence showing that MRO Systems sold competing products in either Illinois or
Wisconsin during the relevant timeframe. See generally ECF No. 37.
As a result, Plaintiff has failed to "make a showing sufficient to establish
the existence of' a breach by Hoeftmann here. Celotex, 477 U.S. at 322. The
Court therefore GRANTS summary judgment to Hoeftmann on Plaintiff's breach
of contract claims against Hoeftmann, to the extent they are based on alleged
violations of Noncompete Paragraph 5(8) in the Hoeftmann Agreement. The
Court DENIES summary judgment to Plaintiff on the same.
iii. Non-Solicitation Paragraph 6(A)
The first restrictive covenant within the non-solicitation provision bars
Hoeftmann from engaging in the following conduct:
Solicit, divert or take away or attempt to solicit, divert or take away
customers, clients or accounts of [Plaintiff], or call upon,
communicate, advise, or consult with, write or respond to, or inform
any customer, client or account of [Plaintiff] for the purpose of
soliciting, selling, or recommending Competing Products where such
customer, client or account was a customer, client or account
previously contacted by, sold to, serviced or supervised by
[Hoeftmann] while employed by [Plaintiff].
Hoeftmann Agmt. 1J 6(A), ECF No. 2-5. Like the noncompete restrictive
covenants, this restriction initially applies for two years following Hoeftmann's
employment with Plaintiff, but it is subject to the same violation clause. Id.
a) Employer's Protection
Once again, the Court finds that Plaintiff's underlying interests in
"protecting existing customer relationships and preventing [Hoeftmann] from
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using the skill, experience, training and confidential information [he] acquired
during [his] tenure in a manner advantageous to a competitor" are legitimate.
ECF No. 137 at PAGEID # 2446. But, yet again, this restraint is not reasonably
necessary to protect those interests.
As with the covenants under the noncompete provision, the temporal
scope of this restrictive covenant renders it unreasonable because the violation
clause could cause it to apply in perpetuity. See supra Section 111.B.1.a.i.a.
The covenant is also not subject to any geographic limitations. See
Hoeftmann Agmt. 1J 6(A}, ECF No. 2-5. However, it applies only to customers
that Hoeftmann "contacted, sold to, serviced or supervised" while employed by
Plaintiff. Id. Such "customer-based restrictions in lieu of geographic restrictions"
are permitted under Ohio law, rendering this limitation reasonable. Fratelli, 2025
WL 639315, at *13 (citing Klaus v. Hilb, Rogal & Hamilton Co. of Ohio, 437 F.
Supp. 2d 706, 734 (S.D. Ohio 2006)).
Other Raimonde factors additionally favor enforcement, but they are not
enough to overcome the unreasonable temporal limitation. See supra Section
lll.B.1.a.i.a (citing Doan, 522 P.3d at 373 and lnterra, 2017 WL 4866266, at *13).
Thus, Plaintiff has failed to meet its burden with respect to the first Raimonde
element.
b) Undue Hardship
In compliance with this restrictive covenant, Hoeftmann may work for any
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of the "thousands" of companies in the MRO industry, provided that he refrains
from doing business with his former customers or accounts he contacted.
Thompson Dep. 58:5-8, ECF No. 138-3; Hoeftmann Agmt. ,r 6(A), ECF No. 2-5.
So, the covenant does not "severely limit□" Hoeftmann's employment options and
therefore does not subject him to undue hardship. See UZ Engineered Prods.
Co., 770 N.E.2d at 1080 (citation omitted).
c) Injury to Public
For the same reasons set forth supra in Section 111.B.1.a.i.c, the Court finds
that the covenant is not injurious to the public. See Harter, 257 F. Supp. 3d at
910; see also UZ Engineered Prods. Co;, 770 N.E.2d at 1081.
d) Modification
Because Paragraph 6(A) of the Hoeftmann Agreement is overbroad as a
result of its indefinite temporal scope, it is an unreasonable restrictive covenant.
However, as with Noncompete Paragraph 5(8), this covenant is unreasonable
solely because of its indefinite temporal scope (i.e., the violation clause). Without
the violation clause, the Court finds that this covenant satisfies Raimonde.
Accordingly, the Court elects to modify Paragraph 6(A) by striking the violation
clause.
e) Breach Assessment
Plaintiff contends it is "undisputed" that Hoeftmann breached this restrictive
covenant. ECF No. 137 at PAGEID # 2450. Defendants disagree, arguing that
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Plaintiff "cannot provide any evidence to demonstrate" such a breach. ECF No.
138 at PAGEID # 4816. In truth, the evidence lies somewhere in between.
There is undisputed evidence establishing that
one of Plaintiff's customers and that Hoeftmann sold to
while employed by Plaintiff. ECF No. 137-143 at PAGIED # 4626. Additionally,
Defendants do not dispute that a sale to on behalf of MRO
Solutions occurred before this restrictive covenant "expired on December 29,
2019." ECF No. 135 at PAGEID # 2224. However, neither party has provided
evidence affirmatively showing whether Hoeftmann was or was not the one who
made the sale on behalf of MRO Solutions. The only evidence presented on this
issue indicates that Hoeftmann cannot recall whether he made the sale.
Hoeftmann Dep. 213:20-214:8, ECF No. 138-2.
So, there is a genuine issue of material fact as to whether Hoeftmann
breached Paragraph 6(A) on at least one occasion, and neither party has
satisfied its burden under Rule 56. See Fed. R. Civ. P. 56; Anderson, 477 U.S.
at 248. The Court thus DENIES summary judgment on Plaintiff's breach of
contract claims, to the extent they are based on Hoeftmann's alleged violations of
Paragraph 6(A) in the Hoeftmann Agreement.
iv. Non-Solicitation Paragraph 6(8)
The second restrictive covenant under the non-solicitation provision
prohibits Hoeftmann from "induc[ing] or attempt[ing] to induce any employee,
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sales representative or independent contractor of [Plaintiff] to leave [their
employment]." Hoeftmann Agmt. ,r 6(8), ECF No. 2-5. This restrictive covenant
only applies for the first "six (6) months following termination of [Hoeftmann's
employment with Plaintiff]." Id. But it is subject to the same violation clause as
every other restrictive covenant discussed herein. Id.
a) Enforceability
Plaintiff "has a legitimate business interest in preventing present and
former employees from soliciting present and former co-workers to work for
competitors." Fratel/i, 2025 WL 639315, at *17. And violation clause aside,
"[o]ther courts have found similar restrictive covenants to be reasonable." Id.
(citing cases); see a/so Mech. Constr. Managers, LLC v. Paschka, No. 3:21-cv-
302, 2022 WL 1591605, at *9 (S.D. Ohio May 19, 2022) (finding a one-year
employee non-solicitation provision to be reasonable). This Court agrees, but
the violation clause alone renders the covenant unreasonable for reasons the
Court has already discussed. See supra Sections 111.B.1.a.i-iii.
b) Modification
Because Paragraph 6(B) would be reasonable but for the violation clause,
the Court hereby exercises its discretion to modify the covenant by striking the
violation clause. See Raimonde, 325 N.E.2d at 547 (explaining that courts are
empowered to modify restrictive covenants to render them reasonable).
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c) Breach Assessment
Plaintiff argues it is entitled to summary judgment on its breach of contract
claims asserted under this covenant because "Hoeftmann testified that he
recruited [Plaintiffs] employees to join [MRO Systems] including Daniel Hayes,
Chad Davis, Rick Kirkpatrick, and Cliff Sachs." ECF No. 137 at PAGEID # 2450.
True, it is undisputed that Hoeftmann recruited at least some of the Other
Defendants to work for MRO Systems. Hoeftmann Dep. 65:16-19, 72:5-7,
74:2-13, 112:4-113:1, ECF No. 138-2. But it is also undisputed that none of the
Other Defendants began working for MRO Systems until the very end of 2019-
over two years after Hoeftmann left his employment with Plaintiff, and over
eighteen months after this restrictive covenant expired. Schrader Deel., ECF No.
146-6; Davis Deel., ECF No. 146-1; Kirkpatrick Deel., ECF No. 146-3; Nietsch
Deel., ECF No. 146-4; Sachs Deel., ECF No. 146-5; Patrick Deel., ECF No. 146-
7. And Plaintiff has failed to present even a scintilla of evidence suggesting that
Hoeftmann began recruiting the Other Defendants ( or anyone else working for
Plaintiff) during the prohibited six-month window. See generally ECF No. 137.
Accordingly, there is no genuine dispute as to any material fact here, and
Defendants are entitled to judgment as a matter of law. See Fulson v. City of
Columbus, 801 F. Supp. 1 (S.D. Ohio 1992) ("The nonmoving party must adduce
more than a scintilla of evidence to overcome the summary judgment motion."
(citation omitted)). The Court therefore GRANTS summary judgment to
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Hoeftmann on Plaintiffs breach of contract claims against Hoeftmann, to the
extent they are based on alleged violations of Paragraph 6(8) in the Hoeftmann
Agreement. The Court DENIES summary judgment to Plaintiff on the same.
b. Other Employment Agreements
The Other Employment Agreements contain non-solicitation provisions
with three restrictive covenants at issue. See, e.g., Nietsch Agmt. fflJ 5-6, ECF
No. 2-1. The Court will address the parties' arguments regarding each of those
restrictive covenants.
i. Non-Solicitation Paragraph 5(A)
The first restrictive covenant prohibits the Other Defendants from engaging
in the following conduct:
Contact, call upon, communicate, advise, consult, solicit, divert or take
away business ( or attempt to take away business) and/or conduct any
business (or attempt to conduct business) for the purpose of soliciting,
selling, and/or recommending any Competing Product to any
customer, client or account of the Company who has conducted
business in any manner with the Company during the twelve
(12} months preceding the Employee's termination.
See, e.g., Nietsch Agmt. ,I 5(A}, ECF No. 2-1. The restriction applies in the first
instance "for a period of two (2) years following the termination of [each of the
Other Defendants'] employment with [Plaintiff]." Id. But the covenant contains
the same violation clause found in the restrictive covenants within the Hoeftmann
Agreement. Id. (specifying that if one of the Other Defendants violates this
covenant, "the terms of such covenant shall continue for an additional two (2)
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years from the time that the violations cease").
a) Employer's Protection
Plaintiff has asserted legitimate business interests in "protecting existing
customer relationships and preventing [the Other Defendants] from using the
skill, experience, training and confidential information [they] acquired during
[their] tenure in a manner advantageous to a competitor," ECF No. 137 at
PAGEID # 2446. See Fratelli, 2025 WL 639315, at *11.
However, the covenant is subject to an unreasonable temporal scope
because of the violation clause. See supra Section 111.B.1.a.i.a.
The covenant is also not limited in geographic scope. See, e.g., Nietsch
Agmt. ,m 5(A), ECF No. 2-1. And though "customer-based restrictions in lieu of
geographic restrictions" are permitted under Ohio law, Fratelli, 2025 WL 639315,
at *13, those restrictions still must be reasonable, Raimonde, 325 N.E2d at 547.
But this covenant prevents the Other Defendants from conducting business with
any customers Plaintiff did business with in the preceding year. See, e.g.,
Nietsch Agmt. fflf 5(A), ECF No. 2-1. That is much broader than other customer
based restrictions courts have enforced under similar facts.6 Further, Plaintiff
6 See, e.g., Fratelli, 2025 WL 639315, at *13 (upholding a restriction for customers the
employee personally contacted or about whom the employee held confidential
information); Paschka, 2022 WL 1591605, at *8 (enforcing a restriction for customers
the employee personally contacted); see also UZ Engineered Prods. Co., 770 N.E.2d at
1081 ("Under more usual circumstances, plaintiffs agreement would appear to be
overly broad in precluding plaintiffs former employees from soliciting not only customers
they called on while in plaintiffs employment but also all potential customers in the
geographic area they worked for plaintiff.").
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serves customers across the country, and its General Sales Manager testified
that it would be "impossible" for the Other Defendants to know every one of
Plaintiffs customers. Thompson Dep. 110:7-10, ECF No. 138-3. It logically
follows that it would be impossible for the Other Defendants to know if they were
violating this covenant upon joining one of Plaintiffs "thousands of competitors."
See ECF No. 137 at PAGEID # 2424. For that reason alone, this is an
unreasonable restraint.
Accordingly, the Court finds that Paragraph S(A) of the Other Employment
Agreements is not "reasonably necessary to protect [Plaintiffs] legitimate
business interests." See James B. Oswald Co., 98 F.4th at 673.
b) Undue Hardship
This restrictive covenant is disproportional to the detriment of the Other
Defendants because it "disproportionately restricts competition without relation to
protectable □ interests," for the reasons stated supra in Section 111.B.1.b.i.a. See
Legacy, 710 F. Supp. 3d at 572. Moreover, the covenant effectively precludes
the Other Defendants from working in the MRO industry because they are unable
to do so without the risk of unknowingly violating the covenant. See supra
Section 111.B.1.b.i.a. And because the Other Defendants have spent a significant
portion of their careers in the MRO industry,7 "it is reasonable to conclude that
7 See, e.g., Davis Deel., ECF No. 146-1; Kirkpatrick Deel., ECF No. 146-3; Nietsch
Deel., ECF No. 146-4; Patrick Deel., ECF No. 146-7.
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[their] primary marketable skills are in" MRO sales and that the covenant would
thus "greatly restrict [their] ability to earn a living."8 Legacy, 710 F. Supp. 3d at
572. As such, the Court finds that the restrictive covenant imposes undue
hardship on the Other Defendants.
c) Injury to Public
For the same reasons set forth supra in Section 111.B.1.a.i.c, the Court finds
that the covenant is not injurious to the public. See Harter, 257 F. Supp. 3d at
910; see a/so UZ Engineered Prods. Co., 770 N.E.2d at 1081.
d) Modification
In consideration of the above analysis, the Court finds that Paragraph S(A)
of the Other Employment Agreements is an unreasonable restrictive covenant
under Raimonde.
Though the Court has discretion to modify this restrictive covenant, it
elects not to do so because modification is not "necessary to protect the
employer's legitimate interests." Raimonde, 325 N.E.2d at 547; see also Kross,
236 N.E.3d at 457 (explaining that courts are not required to modify
unreasonable restrictive covenants). Like the noncompete provision in the
Hoeftmann Agreement, there is another restrictive covenant within this non
solicitation provision-Paragraph 5(8)-that protects the same interests asserted
8 Save for Sachs and Schrader, as evidence suggests that these Defendants had the
ability to make a living in other industries. Sachs Deel., ECF No. 146-5; Schrader Deel.,
ECF No. 146-6.
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by Plaintiff here. See infra Section 111.B.1.b.ii.a. Further, the modification
required to make this covenant reasonable would render it functionally identical
to the version of Paragraph 5(8) the Court enforces infra in Section 111.B.1.b.ii.b.
The Court therefore declines to modify the covenant pursuant to the same line of
reasoning discussed supra in Section 111.B.1.a.i.d.
e) Breach Assessment
Because Paragraph 5(A) of the Other Employment Agreements is
unenforceable, the Court GRANTS summary judgment to the Other Defendants
on Plaintiff's breach of contract claims against the Other Defendants, to the
extent they are based on alleged violations of that covenant. The Court DENIES
summary judgment to Plaintiff on the same.
ii. Non-Solicitation Paragraph 5(8)
The second restrictive covenant at issue in the Other Employment
Agreements provides that the Other Defendants shall not:
Contact, call upon, communicate, advise, consult, solicit, divert or take
away business (or attempt to divert or take away business), and/or
conduct any business (or attempt to conduct business) in any manner
whatsoever with any customer, client or account of [Plaintiff] with
whom the [Other Defendants] had contact, or with whom any person
reporting to the [Other Defendants] had contact, during the period of
the [Other Defendants'] employment with [Plaintiff], provided that the
[Other Defendants are] employed, retained, or in any manner
associated with any company or entity that sells any Competing
Product.
See, e.g., Nietsch Agmt. ,r 5(8), ECF No. 2-1. The covenant initially applies for a
period of two years following each of the Other Defendants' separation from
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Plaintiff, but it is also subject to the violation clause. Id.
a) Enforceability
Although Plaintiff has legitimate business interests underlying this
restriction, see supra Section 111.8.1.b.i.a, the indefinite scope of the violation
clause is "greater than is required for the protection of' those interests. See
Raimonde, 325 N.E.2d at 547. And though the restrictive covenant is otherwise
reasonable,9 it is not enough to overcome the covenant's overbroad temporal
limitation.
b) Modification
Though Paragraph 5(8) of the Other Employment Agreements is
unreasonable because of the violation clause, this is another instance where the
restrictive covenant is reasonable in all other respects. See supra Section
111.8.1.b.ii.a. As such, the Court elects to modify Paragraph 5(8) by striking the
violation clause. The Court will otherwise enforce the covenant as written.
9 The covenant is otherwise tailored to protect Plaintiffs interests because it contains
the type of "customer-based restrictions in lieu of geographic restrictions" that are
permitted under Ohio law. Fratelli, 2025 WL 639315, at *13 (citing Klaus, 437 F. Supp.
2d at 734); see a/so Paschka, 2022 WL 1591605, at *8 (enforcing a restriction for
customers the employee personally contacted). Moreover, the covenant does not
subject the Other Defendants to undue hardship because there are "thousands" of
companies in the MRO industry throughout the country, Thompson Dep. 58:5-8, ECF
No. 138-3, and the Other Defendants can work for any of them so long as they refrain
from doing business with their former customers. See Harter, 257 F. Supp. 3d at 909
("Undue hardship requires a greater showing of impact upon a defendant than simple
hardship, and should be determined as of the time the agreement was executed."
(citation modified)). Finally, the covenant is not injurious to the public for the same
reasons discussed supra in Section 111.B.1.a.i.c.
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c) Breach Assessment
Plaintiff argues it is entitled to summary judgment on its claims asserted
under this covenant because it has presented evidence establishing that each of
the Other Defendants did business with customers at MRO Systems,10 whom
they previously served while working for Plaintiff, during their respective two-year
restricted periods. ECF No. 137 at PAGEID #If. 2432-41. Rather than present
contrary evidence to dispute those transactions, Defendants instead argue that
the lack of evidence regarding the act of solicitation by the Other Defendants and
causation of damages warrants a denial of summary judgment. ECF No. 135 at
PAGEID #If. 2232-35.
Defendants' arguments miss the mark. Though there may be genuine
issues of material fact related to whether the Other Defendants affirmatively
solicited their former customers, Paragraph 5(8) doesn't merely prohibit the
Other Defendants from initiating such business; it also prohibits them from
"conduct[ing] any business (or attempt[ing] to conduct business) in any manner
whatsoever" with those customers. See, e.g., Nietsch Agmt. ,r 5(B), ECF No. 2-
1. So, Defendants' argument on the lack of evidence of solicitation is unavailing.
Fratelli, 2025 WL 639315, at *10 ("Fratelli contends that he did not breach the
non-solicitation provision because he did not solicit or actively reach out to any
past customers.... Even accepting this as true, the mere acceptance of
10 Except for Patrick, who did business with such customers at 1st Ayd.
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business from past customers would breach the non-solicitation provision.").
And there is undisputed evidence establishing that each of the Other Defendants
violated Paragraph 5(8) by conducting business with their former customers
during their two-year restricted periods. See, e.g., ECF No. 137-38; ECF No.
137-139; ECF No. 137-58; ECF No. 137-13; ECF No. 137-82; ECF No. 137-140;
ECF No. 137-99; ECF No. 137-18; ECF No. 137-130; ECF No. 137-138; ECF
No. 137-144; see a/so ECF No. 137 at PAGEID ## 2433--40 (detailing additional
evidence of breaches by the Other Defendants).
As for damages, Plaintiff has adduced evidence of business income it lost
as a result of the Other Defendants' breaches-which is undisputed by
Defendants. See, e.g., ECF No. 137 at PAGEID ## 2433-40 (detailing evidence
of lost profits); McCurdy Deel., ECF No. 136-2 at PAGEID ## 2336-39. And a
showing of lost profits satisfies the damages element of Plaintiffs claim.11 See
Premix, Inc. v. Zappitelli, 561 F. Supp. 269 (N.D. Ohio 1983) ("[Plaintiff] is entitled
to recover the profits lost due to [Defendant's] breach of his employment
agreement." (citation omitted)).
Accordingly, the Court GRANTS summary judgment to Plaintiff on its
breach of contract claims against the Other Defendants, to the extent they are
based on alleged violations of Paragraph 5(8) of the Other Employment
11 The exact amount of damages has yet to be proven; the Court decides only liability at
this juncture.
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Agreements. The Court DENIES summary judgment to the Other Defendants on
the same.
iii. Non-Solicitation Paragraph 6
The final restrictive covenant at issue provides that the Other Defendants
"shall not, at any time during [their term of employment with Plaintiff] and for a
period of two (2) years [thereafter] .. . recruit, hire, induce, encourage or attempt
to induce any employee, sales representative or independent contractor of the
Company for the purpose of having" them leave their employment with Plaintiff.
See, e.g., Nietsch Agmt.116, ECF No. 2-1. This covenant, too, is subject to a
violation clause. Id.
a) Enforceability
Plaintiff "has a legitimate business interest in preventing present and
former employees from soliciting present and former co-workers to work for
competitors." Fratelli, 2025 WL 639315, at *17. And while this restrictive
covenant is reasonable in all other respects, see supra Section I11.B.1.a.iv.a, the
unreasonable violation clause renders it unenforceable under Raimonde.
b) Modification
Because Paragraph 6 of the Other Employment Agreements would be
reasonable but for the violation clause, the Court again exercises its discretion to
modify the covenant by striking the violation clause.
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c) Breach Assessment
Plaintiff asserts a claim under Paragraph 6 against only Kirkpatrick, and it
argues it is entitled to summary judgment on the same because Kirkpatrick
admitted that he solicited two of Plaintiff's employees in 2024. ECF No. 137 at
PAGEID # 2450.
While Plaintiff is correct that the undisputed evidence shows that
Kirkpatrick solicited two of Plaintiff's employees in 2024, see Kirkpatrick
Dep. 256:25-264:4, ECF No. 137-115, it is also undisputed that Kirkpatrick left
his employment with Plaintiff on April 30, 2021, TAC ,r 79, ECF No. 59;
Kirkpatrick Deel., ECF No. 146-3. Thus, Kirkpatrick's restriction expired in April
2023, rendering the 2024 solicitations immaterial to Plaintiff's claim. See
Kirkpatrick Agmt. ,r 6, ECF No. 2-6. And Plaintiff has presented no other
evidence suggesting that Kirkpatrick recruited Plaintiff's employees during his
restricted period. See generally ECF No. 137.
The Court therefore GRANTS summary judgment to Kirkpatrick on
Plaintiff's breach of contract claims against Kirkpatrick, to the extent they are
based on alleged violations of Paragraph 6 of the Other Employment
Agreements. The Court DENIES summary judgment to Plaintiff on the same.
2. Confidentiality Provision
Unlike the restrictive covenants, the confidentiality provision at issue in the
Employment Agreements is identical for all Defendants. That provision provides:
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[Defendants] shall, at all times, keep all Confidential lnformation12
confidential, and shall .not use such information except while
employed by [Plaintiff] for the benefit of [Plaintiff] in the course of
[Defendants'] duties hereunder without regard to whether this
Confidential Information would be considered not generally known by
the public, material or important, by anyone not a party to this
Agreement. [Defendants] hereby agree□ to abide by [Plaintiff's]
determination that any information is Confidential Information and that
the same is of a special and unique nature and value, important and
material and that it gravely affects the effective successful conduct of
the business of [Plaintiff] and [Plaintiffs] goodwill. [Defendants] further
agree□ that all Confidential Information is and shall remain the sole
and exclusive property of [Plaintiff] and that upon termination of their
employment with [Plaintiff], all records, drawings, blueprints, manuals,
letters, notes, reports, copies thereof and all other materials
constituting Confidential Information whether prepared by
[Defendants] or others, will be left with [Plaintiff] or if not then located
on [Plaintiff's] premises returned to [Plaintiff's] principal offices within
five (5) days of termination of employment.
Nietsch Agmt. ,r 7(A), ECF No. 2-1; Davis Agmt. ,r 7(A), ECF No. 2-3; Kirkpatrick
Agmt. ,r 7(A), ECF No. 2-6; Sachs Agmt. 1J 7(A), ECF No. 2-7; Schrader Agmt.
1J 7(A), ECF No. 2-8; Patrick Agmt. ,r 7(A), ECF No. 130-4; Hoeftmann Agmt.
,r 7(A), ECF No. 2-5.
12 "Confidential Information" is defined as: (1) information (whether or not reduced to
writing and whether or not patentable or protectable by copyright and including
information conceived, originated, discovered or developed by the Employee)
determined by the Company to be not generally known by the public, about the
Company and its methods, processes and products, present or contemplated.
Including, without limiting the generality of the foregoing, the names, addresses or
specifications of any of its customers, the prices it obtains or has obtained for its
services or products, confidential records, data, formulae, specifications, sales
catalogues, manuals, inventions, or any other information relating to business
strategies, research, development, manufacture, purchasing, accounting, personnel,
engineering, marketing, pricing, merchandising or selling; and (2) information received
by Plaintiff from third parties in confidence (or subject to nondisclosure or similar
covenants). See, e.g., Nietsch Agmt. 1J 4{A), ECF No. 2-1.
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4
Plaintiff asserts that summary judgment is warranted on its claims asserted
under this provision against all Defendants because they "breached the provision
not to use such information outside of their employment with [Plaintiff] when they
repeatedly solicited their former D customers." ECF No. 137 at PAGEID # 2451.
Plaintiff also argues "Hoeftmann and Nietsch further breached [this provision]
when they failed to return the materials upon their departure from [Plaintiff]." Id.
Finally, Plaintiff contends that "Hoeftmann additionally breached [this provision]
when, within weeks of starting at [MRO Systems], Hoeftmann used [Plaintiff's]
pricing information to develop [MRO System's] pricing book." Id. at PAGEID
## 2451-52. Defendants disagree, arguing that they are entitled to summary
judgment because "[t]here is no evidence whatsoever that Defendants breached
their non-disclosure obligations." ECF No. 135 at PAGEID # 2239; see also ECF
No. 138 at PAGEID 4812-19. The Court addresses each of the parties'
arguments below.
a. All Defendants
In arguing that all Defendants breached the confidentiality provision,
Plaintiff makes a blanket assertion that Defendants did so "when they repeatedly
solicited their former D customers." ECF No. 137 at PAGEID # 2451. But
Plaintiff fails to explain how Defendants violated the confidentiality provisions in
allegedly soliciting such customers; Plaintiff details neither the nature of the
"Confidential Information" at issue nor the way it was misused. See generally id.
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Needless to say, Plaintiff fails to present any evidence of the same, and the
Court finds none upon its own review. But see lnterRoyal, 889 F.2d at 111
( explaining that the Court is not "obligated to wade through and search the entire
record for some specific facts that might support the nonmoving party's claim").
Plaintiff has thus "fail[ed] to make a showing sufficient to establish the
existence of a breach of the confidentiality provision by Defendants on these
grounds. Celotex, 477 U.S. at 322. Accordingly, the Court GRANTS summary
judgment to Defendants on Plaintiff's breach of contract claims, to the extent they
are based on alleged violations of the confidentiality provision under this theory.
The Court DENIES summary judgment to Plaintiff on the same.
b. Nietsch
With respect to Nietsch, Plaintiff asserts that he further violated the
confidentiality provision because he failed to return his "MSTAR" device following
the termination of his employment. ECF No. 137 at PAGEID # 2452. Plaintiff's
sales employees use "MSTAR" devices to access Plaintiff's confidential
information, including pricing, product, and customer information. Mccurdy Deel.
1J 11, ECF No. 137-1.
True, Nietsch did not return his MSTAR device to Plaintiff. Nietsch Dep.
71:3-72:10, ECF No. 137-114. But the undisputed evidence shows that Nietsch
did not return the MSTAR device because he purchased it with his own money,
and Plaintiff told him to keep it. Id. Moreover, Plaintiff admits-and the
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undisputed evidence shows-that Plaintiff disables its employees' access to
confidential information on MSTAR devices "[u]pon termination of employment."
ECF No. 137 at PAGEID # 2451; Mccurdy Deel. ,r 11, ECF No. 137-1. What's
more, even if Nietsch did still have access to Plaintiff's confidential information on
the MSTAR device that he owns, Plaintiff fails to explain-or present any
evidence of-how Nietsch misused that confidential information. See generally
ECF No. 137.
In consideration of the above, no reasonable jury could return a verdict for
Plaintiff on this claim. Therefore, the Court GRANTS summary judgment to
Nietsch on Plaintiff's breach of contract claims, to the extent they are based on
alleged violations of the confidentiality provision under this theory. The Court
DENIES summary judgment to Plaintiff on the same.
c. Hoeftmann
As for Hoeftmann, Plaintiff argues that he violated the confidentiality
provision by using Plaintiff's confidential pricing information to create MRO
System's price book. ECF No. 137 at PAGEID ## 2451-52. Defendants argue
there is no evidence of the same. ECF No. 135 at PAGEID ## 2241--42.
The evidence shows that, following the termination of Hoeftmann's
employment with Plaintiff, Plaintiff sent Hoeftmann a letter seeking the return of
confidential information, including pricing information, that Hoeftmann had "yet to
return." ECF No. 135-6 at PAGEID # 2265. Hoeftmann responded, indicating
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that he "got rid of [his] eight plus year old computer [in] late February [2018)," and
that he had returned other confidential information in his possession. ECF No.
135-7 at PAGEID # 2267. But evidence suggests that there may have been
confidential information on Hoeftmann's computer, which he had access to
following his employment with Plaintiff until the destruction of the computer in
February 2018. Hoeftmann Deel. ,r 2, ECF No. 135-8 (discussing the letter he
received "about the Kimball Midwest materials [he] had previously returned or
destroyed' (emphasis added)).
Evidence also shows that Hoeftmann may have used that confidential
pricing information in January 2018, before the computer's destruction, to create
MRO System's price book. Hoeftmann Dep. 154:3-13, ECF No. 138-2.
Defendants dispute the characterization of that evidence, Hoeftmann Deel. fflf 3-
4, ECF No. 135-8, but they do so with evidence "that the jury would not be
required to believe." Reeves, Inc., 530 U.S. at 151 (citation omitted). The Court
finds that the evidence presented by the parties "is such that a reasonable jury
could return a verdict for'' either party. Anderson, 477 U.S. at 248 (internal
citations and quotation marks omitted).
Thus, there are genuine disputes of material fact over whether Hoeftmann
used Plaintiff's confidential pricing information to create MRO System's price
book in violation of the confidentiality provision. So, the Court DENIES summary
judgment on Plaintiff's breach of contract claims, to the extent they are based on
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Hoeftmann's alleged violation of the confidentiality provision, Hoeftmann Agmt.
,r 7(A), ECF No. 2-5, in developing MRO System's price book.
C. Trade Secret Claims
Plaintiff brings trade secret claims against Defendants under both OUTSA
and DTSA. TAC, ECF No. 59 at PAGEi□ ## 672-74. Only Defendants move for
summary judgment on these claims. ECF No. 138.
"The requirements for establishing misappropriation of trade secrets are
substantially the same under [DTSA] and [OUTSA]." Qua/us Corp. v. Wilson, No.
1 :23-cv-352, 2023 WL 6929721, at *3 n.2 (S.D. Ohio Oct. 18, 2023) (citation
omitted). To prevail on such claims, Plaintiff must show "(1) the existence of a
trade secret; (2) the acquisition of a trade secret as a result of a confidential
relationship; and (3) the unauthorized use of a trade secret." Id. (citation
omitted). "[B]ecause the definition and requirements of OUTSA and DTSA are
essentially the same," the Court will address these claims together. Sunjoy
Indus. Grp., Ltd. v. Permasteel, Inc., No. 2:22-cv-1896, 2023 WL 406211, at *7
(S.D. Ohio Jan. 25, 2023).
Defendants argue that Plaintiff can show neither the existence nor the
unauthorized use of any trade secrets. ECF No. 138 at PAGEi□ ## 4817-19.
Plaintiff counters that its "customer information and pricing information are
protectable trade secrets" and that Defendants misappropriated the same "to
solicit [Plaintiff's] customers and undercut [Plaintiff's] pricing." ECF No. 136 at
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PAGEID ## 2308-15. The factual allegations underlying Plaintiff's trade secret
claims are largely identical to those underlying its claims that Defendants
breached the confidentiality provisions in the Employment Agreements.
Compare ECF No. 137 at PAGEID ## 2450-52, with ECF No. 136 at PAGEID
## 2308-15.
1. The Other Defendants
With respect to the Other Defendants, Plaintiff's trade secret claims fail for
reasons similar to those discussed supra in Sections III.8.2.a-b. Though Plaintiff
provides more context here regarding its theory of how the Other Defendants
misappropriated Plaintiff's trade secrets in soliciting their former customers, that
additional context amounts to unsupported allegations. See ECF No. 136 at
PAGEID # 2311. As with its claims regarding the confidentiality provisions, see
supra Section 111.8.2.a, Plaintiff fails to present any evidence showing that the
Other Defendants solicited their former customers by using Plaintiffs trade
secrets. See generally ECF No. 136. Plaintiff has therefore failed "to make a
showing sufficient to establish the existence of' unauthorized use by the Other
Defendants, so its trade secret claims against the Other Defendant cannot
survive summary judgment. Celotex, 477 U.S. at 322.
The Court therefore GRANTS summary judgment to the Other Defendants
on Plaintiff's claims under OUTSA and DTSA against the Other Defendants.
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'
2. Hoeftmann
For Hoeftmann, Plaintiff's trade secret claims are based on Hoeftmann's
alleged misappropriation of non-public pricing information to create MRO
System's price book. ECF No. 136 at PAGEID # 2311.
As for whether that pricing information constitutes a trade secret, Plaintiff
has "presented testimony that pricing information is valuable and would not
typically be shared with third parties," see ECF No. 136 at PAGEID ti# 2309-10,
while "Defendants have presented contrary testimony that the information in this
case is obsolete and not trade secrets," see ECF No. 138 at PAGEID f#t. 4817-
18. Presidio, Inc. v. People Driven Tech., Inc., 686 F. Supp. 3d 652, 685 (S.D.
Ohio 2023) (citation omitted). There is thus a genuine dispute of material fact as
to the existence of a trade secret here.13 Id. ("Thus, there are genuine disputes
about whether the information in the pricing documents should be considered
trade secret; resolving those disputes is left to a jury."). Further, for the same
reasons set forth supra in Section 111.8.2.c, there are genuine disputes of material
fact regarding whether Hoeftmann misappropriated that pricing information by
using it to create MRO System's price book in January 2018.
Accordingly, the Court DENIES summary judgment on Plaintiff's claims
under OUTSA and DTSA against Hoeftmann.
13 The parties do not dispute that, if this information is deemed a trade secret, it was
acquired by Hoeftmann as a result of a confidential relationship with Plaintiff. See
generally ECF Nos. 136, 138, 148.
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D. Conversion Claim
Plaintiff brought a general claim for conversion against Defendants. TAC,
ECF No. 59 at PAGEID # 671. In response to Defendants' motion for summary
judgment on the same, however, Plaintiff did not contest Defendants' arguments.
See generally ECF No. 136. Instead, Plaintiff argues "[w]ith the exception of
Plaintiffs claim for conversion ... summary judgment for Defendants is not
warranted on any claims." Id. at PAGEID # 2296 (emphasis added}. As such,
the Court finds that Plaintiff has abandoned its conversion claim and declines to
consider the merits of the same. Hicks v. Concorde Career Coll., 449 F. App'x
484, 487 (6th Cir. 2011) {holding that a district court properly declines to consider
the merits of a claim when a plaintiff fails to address it in a response to a motion
for summary judgment); Brown v. VHS of Michigan, Inc., 545 F. App'x 368
(6th Cir. 2013) ("This Court's jurisprudence on abandonment of claims is clear: a
plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it
in response to a motion for summary judgment.").
Because Plaintiff has abandoned its conversion claim, the Court GRANTS
summary judgment to Defendants on the same.
E. Tortious Interference Claims
Plaintiff also brings claims against Defendants for tortious interference with
business relationships. TAC, ECF No. 59 at PAGEID # 671. "A tortious
interference with a business relationship or contract claim has five elements:
(1) a business relationship or contract; (2) the defendant's knowledge of the
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relationship or contract; (3) the defendant's intentional or improper action taken
to prevent a contract formation, procure a contractual breach, or terminate a
business relationship; (4) a lack of privilege; and (5) resulting damages." Total
Quality Logistics, LLC v. EDA Logistics LLC, 685 F. Supp. 3d 563, 578 (S.D.
Ohio 2023).
Plaintiff argues that (1) it had business relationships with the customers
that Defendants serviced while working for Plaintiff, (2) Defendants knew about
those relationships by way of their employment, (3) Defendants intentionally and
improperly interfered with those relationships by "solicit[ing] those customers in
violation of [the Employment Agreements]," (4) Defendants lacked privilege to do
so because the "solicitation of a former employer's customers in violation of a
non-solicitation agreement is not privileged conduct," and (5) Defendants'
misconduct caused Plaintiff to suffer damages in the form of lost profits. ECF
No. 136 at PAGEID #If. 2315-20.
In other words, Plaintiff's tortious interference claims are just repackaged
versions of its breach of contract claims pursuant to the non-solicitation
provisions in the Employment Agreements. See supra Section 111.B.1. But under
Ohio law, "though a breach of a duty under a contract or lease necessarily
interferes with the injured party's business relations with third parties, the injured
party is limited to an action for breach of contract and may not recover in tort for
business interference." Digital & Analog Design Corp. v. N. Supply Co., 540
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N.E.2d 1358, 1368 (Ohio 1989) (citations omitted). "An exception exists, and a
tort action may lie, only where the breaching party indicates, by his breach, a
motive to interfere with the adverse party's business relations rather than an
interference with business resulting as a mere consequence of such breach." Id.
In any event, "Ohio law prevents a double recovery for the same injury." Credit
Acceptance Corp. v. Davisson, No. 1:08 CV 107, 2008 WL 11378851, at *5
(N.D. Ohio Nov. 24, 2008).
Here, Plaintiff has presented no evidence of Defendants' independent
motive to interfere with Plaintiff's business relationships. See ECF No. 136 at
PAGEID ## 2316-17; ECF No. 137 at PAGEID ## 2452-55. Instead, Plaintiff
points to the contractual breaches themselves as evidence of Defendants' intent
to interfere, see, e.g., ECF No. 136 at PAGEID ## 2316-17, but that is not
enough for Plaintiff's tortious interference claim to survive under Ohio law. See
Digital & Analog Design Corp., 540 N.E.2d at 1368. Moreover, Plaintiff seeks to
recover the same damages it seeks in connection with its breach of contract
claims, compare ECF No. 149 at PAGEID ## 9717-22, with ECF No. 136 at
PAGEID ## 2318-20, which cannot occur under Ohio law. See Credit
Acceptance Corp., 2008 WL 11378851, at *5.
For these reasons, the Court GRANTS summary judgment to Defendants
on Plaintiff's tortious interference claims. The Court DENIES summary judgment
to Plaintiff on the same.
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F. Civil Conspiracy Claim
Finally, Plaintiff brings a civil conspiracy claim against Defendants. TAC,
ECF No. 59 at PAGEID ti# 674-75. Plaintiff and Defendants both argue they are
entitled to summary judgment on the same. ECF No. 137 at PAGEID '1#1- 2455-
57; ECF No. 138 at PAGEID ti# 4822-23.
To succeed on its civil conspiracy claim, Plaintiff must prove "a malicious
combination of two or more persons to injure another in person or property, in a
way not competent for one alone, resulting in actual damages." Williams v.
Aetna Fin. Co., 700 N.E.2d 859, 868 (Ohio 1998) (citation modified). However,
"Ohio law does not recognize civil conspiracy as an independent cause of action"
absent the existence of an unlawful act. Addison Holdings, LLC v. Fox, Byrd &
Co., P.C., 203 N.E.3d 1259, 1285 (Ohio Ct. App. 2022) (citation omitted); see
also Williams, 700 N.E.2d at 868 ("An underlying unlawful act is required before a
civil conspiracy claim can succeed." (citation omitted)).
Here, the underlying unlawful acts alleged by Plaintiff are the "tortious •
conduct set forth in the Second [Tortious Interference], Third [Conversion],
Fourth [Misappropriation of Trade Secrets under OUTSA] and Fifth
[Misappropriation of Tr�de Secrets under DTSA] Causes of Action." TAC ,I 157,
ECF No. 59 at PAGEID ft# 674-75; ECF No. 136 at PAGEID # 2322. But the
Court has already determined that Plaintiff cannot prove tortious interference by
Defendants. See supra Section 111.E. And Plaintiff abandoned its conversion
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claim. See supra Section 111.D. Finally, as for the alleged OUTSA and DTSA
violations, Plaintiff correctly concedes that its civil conspiracy claim is preempted
to the extent it is "based on the misappropriation of trade secrets," ECF No. 136
at PAGEID # 2321. See Total Quality Logistics, LLC v. Riffe, No. 1:19-cv-23,
2022 WL 877396, at *11 {S.D. Ohio Mar. 24, 2022) ("OUTSA preempts
conflicting tort, restitutionary, and other laws of this state providing civil remedies
for misappropriation of a trade secret." (citation modified)).
That leaves Plaintiff without a hook; it cannot prove an underlying unlawful
act by Defendants, and a "civil conspiracy claim cannot succeed without an
underlying unlawful act." Nilavar v. Mercy Health Sys.-W Ohio, 494 F. Supp. 2d
604, 627 (S.D. Ohio 2005) {citation omitted}.
Accordingly, the Court GRANTS summary judgment to Defendants on
Plaintiffs civil conspiracy claim. The Court DENIES summary judgment to
Plaintiff on the same.
G. Remaining Issues
In addition to the above claims, Defendants move for summary judgment
on (1) Plaintiff's claim for attorneys' fees pursuant to the fee provision in the
Employment Agreements, (2) Plaintiff's claim for injunctive relief, and
(3) Defendants' unclean hands defense. ECF No. 138 at PAGEID t#f. 4823-26.
With respect to Plaintiff's claims for attorney's fees and injunctive relief, the
Court finds that supplemental briefing on those remedy-based issues is
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warranted considering the Court's ruling on liability at this juncture. The Court
therefore DEFERS ruling on the same.
Regarding their unclean hands defense, Defendants' argument relies
heavily on a case in which Plaintiff was "previously □ found to .have unclean
hands." ECF No. 138 at PAGE ID# 4825 (citing Midwest Motor Supply Co. v.
Davis, No. C2-02-531, 2004 WL 4058123 (S.D. Ohio Apr. 14, 2004)). In that
case, the court found that by inducing the defendant employee to accept
employment with Plaintiff in violation of her noncompete agreement with her
former employer, the doctrine of unclean hands justified denying Plaintiff's
request to enforce its own noncompete agreement against the defendant and her
new employer. Midwest Motor Supply Co., 2004 WL 4058123, at *3.
But Defendants have not presented any evidence, nor have they even
asserted, that Plaintiff induced any of Defendants to accept employment with
Plaintiff in violation of restrictive covenants imposed by their former employers.
See ECF No. 138 at PAGEID ##- 4824-26; ECF No. 148 at PAGEID ##- 9698-99.
And Defendants cannot rely on Plaintiff's prior conduct with other employees to
prove unclean hands in this case.14 The Court therefore DENIES Defendants'
motion for summary judgment on their unclean hands defense.
14 "The doctrine of unclean hands requires that the alleged misconduct on the part of the
plaintiff relate directly to the transaction about which the plaintiff has made a complaint.
The unclean hands doctrine can be applied only to conduct relating to the matter in
litigation. The doctrine is not to be used as a 'loose cannon' depriving a plaintiff of an
equitable remedy to which it is otherwise entitled merely because it is guilty of unrelated
misconduct." Midwest Motor Supply Co., 2004 WL 4058123, at *3 (citation modified).
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�
H. Motion to Strike
Defendants also move for the Court to strike Plaintiff's "Reply Exhibits and
all portions of Plaintiff's Reply Brief relying on them." ECF No. 153 at PAGEID
# 10191.
"Motions to strike are viewed with disfavor and are not frequently granted."
Operating Engineers Loe. 324 Health Care Plan v. G&W Const. Co., 783 F.3d
1045, 1050 (6th Cir. 2015). And courts need not consider motions to strike
where summary judgment may be resolved without consideration of the
challenged materials. See Long Point Energy, LLC v. Gulfport Energy Corp.,
No. 2:20-cv-4644, 2026 WL 380597, at *3 (S.D. Ohio Feb. 11, 2026) ("Rather
than striking material, a court may simply ignore inadmissible evidence." (citation
omitted)); Berry v. Frank's Auto Body Carstar, Inc., 817 F. Supp. 2d 1037, 1042
(S.D. Ohio 2011), affd, 495 F. App'x 623 (6th Cir. 2012) (denying motion to strike
as moot because summary judgment could be resolved without considering the
challenged materials).
Here, the Court properly resolved the parties' motions for summary
judgment without considering the materials challenged by Defendants. See
supra Sections 111.B-F. Therefore, Defendants' motion to strike, ECF No. 153, is
DENIED AS MOOT.
IV. CONCLUSION
For the reasons above: (1) Plaintiff's motion for partial summary judgment,
ECF No. 137, is GRANTED in part and DENIED in part; (2) Defendants' motion
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for summary judgment, ECF No. 138, is GRANTED in part and DENIED in part;
and (3) Defendants' motion to strike, ECF No. 153, is DENIED AS MOOT.
The Court GRANTS summary judgment to Hoeftmann on Plaintiff's breach
of contract claims against Hoeftmann, to the extent they are based on alleged
violations of: (1) Noncompete Paragraph 5(A) of the Hoeftmann Agreement;
(2) Noncompete Paragraph 5(8) of the Hoeftmann Agreement; or (3) Paragraph
6(8) of the Hoeftmann Agreement.
The Court GRANTS summary judgment to the Other Defendants on
Plaintiff's breach of contract claims against the Other Defendants, to the extent
they are based on alleged violations of Paragraph 5(A) of the Other Employment
Agreements.
The Court GRANTS summary judgment to Plaintiff on its breach of
contract claims against the Other Defendants, to the extent they are based on
alleged violations of Paragraph 5(B) of the Other Employment Agreements.
The Court GRANTS summary judgment to Kirkpatrick on Plaintiff's breach
of contract claims against Kirkpatrick, to the extent they are based on alleged
violations of Paragraph 6 of the Other Employment Agreements.
The Court GRANTS summary judgment to Defendants on Plaintiff's
breach of contract claims, to the extent they are based on alleged violations of
the confidentiality provision by Defendants in "repeatedly solicit[ing] their former □
customers." ECF No. 137 at PAGEID # 2451.
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The Court GRANTS summary judgment to Nietsch on Plaintiffs breach of
contract claims, to the extent they are based on alleged violations of the
confidentiality provision by Nietsch in failing to return his "MSTAR" device.
The Court GRANTS summary judgment to the Other Defendants on
Plaintiffs claims under OUTSA and DTSA against the Other Defendants.
The Court GRANTS summary judgment to Defendants on: (1) Plaintiffs
conversion claim; (2) Plaintiffs tortious interference claims; and (3) Plaintiffs civil
conspiracy claim.
The Court DENIES summary judgment on Plaintiffs breach of contract
claims, to the extent they are based on Hoeftmann's alleged violations of:
(1) Paragraph 6(A) of the Hoeftmann Agreement; or (2) the confidentiality
provision in the Hoeftmann Agreement, Hoeftmann Agmt. ,r 7(A), ECF No. 2-5, in
developing MRO System's price book.
The Court DENIES summary judgment on Plaintiffs claims under OUTSA
and DTSA against Hoeftmann.
The Court DENIES summary judgment on Defendants' unclean hands
defense.
Following this Opinion and Order, the only claims remaining for
adjudication are:
• Plaintiffs breach of contract claims (Count I) against Hoeftmann, to
the extent they are based on alleged violations of either Paragraph
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6(A) or Paragraph ?(A) of the Hoeftmann Agreement; and
• Plaintiff's trade secret claims (Counts IV and V) against Hoeftmann.
The Court DEFERS ruling on Plaintiff's claims for attorney's fees and
injunctive relief until the parties submit supplemental briefing on those remedy
based issues, should it become necessary. The parties are ORDERED to file a
joint status report, within SIXTY DAYS, indicating how they wish to proceed in
this action in light of this Opinion and Order.
The Clerk shall terminate ECF Nos. 112, 114, 138, 145, 146, and 153 as
pending motions.
IT IS SO ORDERED.
Case No. 2:22-cv-4049
/) /'
:110U �1/JJMv-
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
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