United States District Court, S.D. Mississippi, Northern Division
Carlton W. Reeves UNITED STATES DISTRICT JUDGE
the Court is the defendants' motion for summary judgment.
The matter is fully briefed and ready for review.
Factual and Procedural History
February 2016, David Todd Cotten was hired as a salesman for
Cimline, Inc., a manufacturer and distributor of
road-patching equipment. His sales territory included the
southeastern United States. He signed a contract agreeing
that if he ever left Cimline, he would not compete with its
business for one year in the entire lower 48 states.
months later, Cotten was terminated. He was presented a
separation agreement and given 21 days to consider it. Cotten
then signed the separation agreement which, among other
things, confirmed the non-compete, waived his rights to sue
Cimline, and outlined approximately $20, 000 in compensation
he would receive as part of his separation. About $18, 000 of
that sum stemmed from commissions for his 2016 sales; the
remainder was two weeks' salary.
began working for one of Cimline's competitors in early
2017. Cimline wrote letters to him-and to the
competitor-objecting to the employment.
Cotten sued Cimline and its parent company, Plymouth
Industries, for declaratory and injunctive relief in the
Chancery Court of Rankin County, Mississippi. He sought to
invalidate the non-compete clause and work without
April 2017, the defendants removed the matter to this Court
pursuant to diversity jurisdiction. This motion followed. In
it, the defendants argue that Cotten waived his right to
bring this suit by signing the December 2016 separation
agreement. Cotten contends that the separation agreement and
the non-compete clause in it are void.
judgment is appropriate when “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.”
Fed.R.Civ.P. 56(a). A party seeking to avoid summary judgment
must identify admissible evidence in the record showing a
fact dispute. Id. at 56(c)(1). “Once a summary
judgment motion is made and properly supported, the nonmovant
must go beyond the pleadings and designate specific facts in
the record showing that there is a genuine issue for trial.
Neither ‘conclusory allegations' nor
‘unsubstantiated assertions' will satisfy the
nonmovant's burden.” Wallace v. Tex. Tech
Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (quotation
marks and citations omitted).
Court views the evidence and draws reasonable inferences in
the light most favorable to the nonmovant. Maddox v.
Townsend and Sons, Inc., 639 F.3d 214, 216 (5th Cir.
2011). But the Court will not, “in the absence of any
proof, assume that the nonmoving party could or would prove
the necessary facts.” McCallum Highlands, Ltd. v.
Wash. Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995),
as revised on denial of reh'g, 70 F.3d 26 (5th
because this case is proceeding in diversity, the applicable
substantive law would be that of the forum state. Capital
City Ins. Co. v. Hurst, 632 F.3d 898, 902 (5th Cir.
2011). But here, in the separation agreement, the parties
agreed that any dispute would be governed by Minnesota