Crawford

MEMORANDUM *

Safelite Glass Corporation (“Safelite”) appeals the district court’s denial of Safe-lite’s preliminary injunction motion and entry of judgment in favor of Crawford. We affirm. Because the parties are familiar with the factual and procedural history of this case, we will not recount it here.

The district court did not err in concluding that Safelite’s non-competition covenant was unreasonable and unenforceable. Under Arizona law, a covenant not to compete cannot be used to prevent competition per se. Valley Med. Specialists v. Farber, 194 Ariz. 363 , 982 P.2d 1277, 1281 (Ariz.1999). Such an agreement is valid only if it protects “some legitimate interest [of the employer] beyond the employer’s desire to protect itself from competition.” Id. Legitimate interests that can support a covenant not to compete include an employer’s need “to prevent competitive use, for a time, of information or relationships which pertain peculiarly to the employer and which the employee acquired in the course of the employment.” Id. (internal quotation and citation omitted).

Under Arizona law, a restrictive covenant is reasonable if it:

Id. at 1284 (quoting Amex Distrib. Co., Inc. v.…

dissenting.

I respectfully dissent.

The covenant at issue was limited to twelve months and to a twenty-five mile radius. This is not unreasonable as a matter of law for a salesman dealing with repeat institutional customers. Arizona enforces reasonable restraints, or “those no broader than the employer’s legitimately protectable interests.” 1 The arguable part is the provision extending the covenant to “twenty-five (25) miles of any location or geographic area to which the Associate was assigned at the time of, or at any time during the twelve (12) month period immediately preceding, the termination of the Associate’s employment.” 2 But Arizona courts apply a “blue-pencil rule” to objectionable covenants, “eliminating grammatically severable unreasonable provisions.” 3 This clause can be blue-penciled.

We agree that the district court improperly granted summary judgment sua sponte against Safelite, without providing adequate notice of its intention to do so. 4 Because I disagree with the majority over the reasonableness of the covenant not to compete at issue in this case, I would hold that the district court’s error was not harmless, I would reverse and remand for trial.

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