DeVries v. Pioneer Wireline Services, LLC et al

Filing 28

FINDINGS AND RECOMMENDATIONS re 20 MOTION for Summary Judgment filed by Kenton DeVries. IT IS RECOMMENDED that DeVries'summary judgment motion (ECF 20 ) be DENIED. Signed by Magistrate Judge Carolyn S Ostby on 8/18/2015. (JDR, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
KENTON DeVRIES,

CV 14-123-BLG-SPW-CSO

Plaintiff,
FINDINGS AND
RECOMMENDATION OF
UNITED STATES
MAGISTRATE JUDGE

vs.
PIONEER WIRELINE
SERVICES, LLC, f/k/a PIONEER
LOG-TECH, LLC, a Delaware
Limited Liability Company, and
JOHN DOES I-V,
Defendants.

Plaintiff Kenton DeVries (“DeVries”) filed this action for
declaratory relief and damages against his employer, Defendant
Pioneer Wireline Services, LLC (“Pioneer”). DeVries invokes the
Court’s diversity jurisdiction under 28 U.S.C. § 1332.
In his Amended Complaint (Am. Cmplt. Pet. for Declaratory
Judgment and Jury Demand (ECF 3)), DeVries seeks:
Count One – a declaration that his employment agreement’s noncompete and non-disclosure clause is invalid and unenforceable;
Count Two – a declaration that Pioneer’s breach of the
agreement’s double-bonus provision precludes Pioneer from
enforcing the non-disclosure and non-compete clause; and

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Count Three – payment of double bonuses under the travel clause
of his employment agreement (Count Three).
.
Now pending is DeVries’ motion for summary judgment on all
claims. Mtn. for Summary Judgment (ECF 20). For the reasons set
forth below, the Court recommends that DeVries’ motion be denied.
I.

BACKGROUND1
A.

DeVries’ Employment Agreement with Pioneer

DeVries has been a wireline engineer for nearly two decades. In
2004, he was an owner in Prairie Investors (“Prairie”), d/b/a
Competition Wireline Services and Competition Wireline Services, Inc.
(“Competition Wireline”), based out of Billings, Montana.
On February 29, 2008, DeVries and Prairie entered into an
Employment Agreement (“Agreement”).2 There are no amendments or
addendums to the Agreement outside of those produced in Exhibit A
(ECF 5-1) to the Amended Complaint. Also on February 29, 2008,
Prairie was sold to Pioneer Log-Tech, LLC, which, a few days later,

1

The Court compiled the background facts that follow from the
pleadings, DeVries’ Statement of Undisputed Facts (ECF 22), and
Pioneer’s Statement of Disputed Facts (ECF 26). The facts stated here
and in the “Discussion” section are undisputed except where indicated.
2

DeVries attached a copy of the Agreement to his Amended
Complaint as Exhibit A. See ECF 5-1 at 1-15.
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changed its name to Pioneer Wireline Services, LLC (“Pioneer”).
Pioneer now owns all assets previously owned by Prairie. DeVries still
works for Pioneer.
B.

The Agreement’s Non-compete and Other Restrictive
Covenants Provision

The Agreement, Section 10, titled “Non-compete and Other
Restrictive Covenants,” states, in part, as follows:
Employee agrees that the Company’s business is by nature a
nationwide business, and that the Company’s business,
services, research and products do not require the Company
to maintain a physical location close to its customers.
Employee further acknowledges that the skills, processes
and information developed at the Company could be utilized
directly and to the Company’s detriment with any other
competing business anywhere in the nation. Accordingly,
for the consideration described in this Agreement and other
good and valuable consideration the sufficiency and receipt
of which is hereby acknowledged, Employee agrees to be
bound by the following restrictive covenants. EMPLOYEE
FURTHER AGREES THAT THE DURATION, SCOPE,
AND TERRITORIAL RESTRICTIONS PROVIDED IN THE
RESTRICTIVE COVENANTS PROVIDED IN THIS
SECTION 10 ARE REASONABLE AND IMPOSE NO
GREATER RESTRAINT THAN IS NECESSARY TO
PROTECT THE COMPANY’S GOODWILL AND OTHER
IMPORTANT BUSINESS INTERESTS. EMPLOYEE
FURTHER ACKNOWLEDGES THAT ABSENT THE
AGREEMENT OF EMPLOYEE TO THE TERMS OF THIS
SECTION 10, COMPANY WOULD NOT EMPLOY
EMPLOYEE. ...
Employee expressly agrees and undertakes that ...
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(v) From the date of this Agreement through one (1) year
after the termination of his Employment whenever
occurring and for whatever reason ... Employee shall not ...
(A) engage in any business activity (including selling any
products or providing any services) in competition with the
Company within any Territory (as hereinafter defined), or
(B) solicit any business from, or provide any services to, any
of the customers or accounts of the Company or its Affiliates
or (C) become the employee of, or otherwise render services
to or on behalf of, any enterprise which competes directly
with the business of the Company or its Affiliates. ...
“Territory” will include (A) the city, town or village in which
any sales or service facility of the Company is or may be
located ... (B) the county or parish in which any Facility is
located, (C) the counties or parishes contiguous to the county
or parish in which any Facility is located, (D) the area
located within 350 miles of any Facility, (E) the area in
which any Facility regularly provides products or services at
the locations or project sites of its customers, and (F) the
states of Montana, North Dakota, South Dakota, and
Wyoming, as applicable.
(vi) From the date of this Agreement through ... one (1) year
after termination of his employment ... Employee shall not
directly or indirectly ... (i) solicit the business of any Person
known to Employee to be a customer of the Company,
whether or not Employee had personal contact with such
Person, with respect to products or services which compete
in whole or in part with the products or services of the
Company, or (ii) induce or attempt to induce any customer,
supplier, licensee or business relation of the Company to
cease doing business with the Company, or in any way
interfere with any relationship between the Company and
any customer, supplier, licensee or business relation of the
Company.
ECF 5-1 at 5-7 (capitalization and emphasis in original).

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C.

The Agreement’s Bonuses Provision

The Agreement, Section 3, titled “Compensation,” provides,
relevant to this action, as follows:
Employee shall also be entitled to bonuses as described in
Addendum B to this Agreement.
ECF 5-1 at 2.
Addendum B to the Agreement provides in relevant part:
Employee shall be eligible to receive job-based bonuses
consistent with past practices of the Company, including
double-bonuses for jobs involving a round trip commuting
distance of more than 600 miles from the duty station to the
job site.
Id. at 14.
DeVries received double bonuses from March 2008 until February
13, 2011, when the bonuses stopped. As discussed in more detail below,
respecting the period between February 13, 2011, and August 28, 2013,
the parties dispute whether DeVries is entitled to unpaid bonuses in
the total amount of $118,148.26 for trips he allegedly took to job sites
requiring round trip commuting distances of more than 600 miles.
Shortly after August 28, 2013, DeVries transferred to Dickinson,
North Dakota. From Dickinson, DeVries no longer traveled the
required distances to earn double-bonuses.
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D.

Other Provisions in the Agreement

The Agreement states that Montana law applies. The Agreement
allows for attorneys fees and costs for the prevailing party in any
litigation “in relation” to the Agreement.
II.

SUMMARY OF THE PARTIES’ ARGUMENTS
In seeking summary judgment on his claim that the Agreement’s

non-compete clause is invalid and unenforceable, DeVries argues that:
(1) the non-complete clause is a full or absolute restraint on trade
because it would prevent him from working for a year in almost all oilproducing states in the nation, including in the area in which he has
lived for fifteen years, DeVries’ Opening Br. (ECF 21) at 5-6; (2) Pioneer
has no legitimate business interest in preventing him from competing
with Pioneer because his present job gives him no access to unique
trade information or exclusive access to Pioneer’s customers, id. at 6-8;
and (3) the non-compete clause provides Pioneer protections that are
unreasonable because it includes overly broad place limitations
concerning where he could work, id. at 8-10.
DeVries also seeks summary judgment on his claim that Pioneer
breached the Agreement by failing to pay double bonuses. Id. at 10.

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He argues that he continued to earn double bonuses by commuting to
jobs more than 600 miles, round trip, between February 13, 2011, and
August 28, 2013. Because Pioneer did not pay him double bonuses for
those trips, DeVries argues, Pioneer owes him $118,149.26. Id. at 1011. He also argues that, because of this breach of the Agreement,
Pioneer is barred from enforcing the non-compete provision of the
Agreement. Id. at 11.
Finally, DeVries argues that he is entitled to attorneys’ fees and
costs. As the prevailing party, he argues, he should be awarded
attorneys’ fees and costs under the Agreement, the Declaratory
Judgment Act, 28 U.S.C. §§ 2201-02, and Montana law. Id. at 11-13.
In response, Pioneer argues generally that genuine issues of
material fact preclude summary judgment on DeVries’ claims.
Pioneer’s Resp. Br. (ECF 24) at 7. Specifically, Pioneer argues that: (1)
the Agreement’s non-compete clause is not an absolute restraint on
trade because it was sufficiently limited in scope and time, id.; (2) the
non-compete provision is a legally permissible partial restraint on trade
because it is reasonable in that it is restricted respecting time or place,
it is based on good consideration, and it is reasonable in that it affords

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fair protection to the parties’ interests and does not interfere with the
public’s interest, id. at 7-11; (3) DeVries overstates the limitations the
non-compete clause places on him because wireline engineers do more
than work only where there is oil and gas production, id. at 11; (4) the
non-compete clause serves Pioneer’s legitimate business interest
because DeVries remains employed with Pioneer, which performs
“unique techniques and procedures” some of which “were and remain
proprietary and different from competitors’ practices[,]” and because
Pioneer has a client base that it has an interest in maintaining, id. at
11-13; (5) it paid DeVries double bonuses to which he was entitled
under the Agreement but eliminated double bonuses in favor of
increased standard bonus percentages when it reorganized its bonus
payment system and DeVries neither expressed concern for this change
nor provided Pioneer with any documentation seeking payment of a
double bonus after February 2011, id. at 13; and (6) DeVries is not
entitled to attorney’s fees or costs because “no efforts have been made
to enforce the non-compete provision[,]” DeVries remains working for
Pioneer, and his claims are not ripe, id. at 13-14.
In reply, DeVries first argues that Pioneer has failed to raise any

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material facts that are in dispute because: (1) Pioneer filed its
Statement of Disputed Facts three days after it filed its response brief
in violation of Local Rule 56.1(b), which requires simultaneous filing of
those documents, DeVries’ Reply Br. (ECF 27) at 2; and (2) Pioneer
further violated Local Rule 56.1(b) by failing to provide pinpoint cites
for all of DeVries’ presented facts that it opposes and by relying on the
defective affidavit of Martin O’Neil, who failed to base his statements
on personal knowledge, id. at 2-3.
Second, DeVries argues that he is entitled to summary judgment
on his claim respecting the non-compete clause. He argues that the
clause is void and unenforceable as a full restraint on trade and that
Pioneer’s arguments that DeVries received valuable consideration and
about the territory at issue are irrelevant. Id. at 4. He also argues that
Pioneer’s position that it has a legitimate business interest in enforcing
the non-compete provision rests entirely on O’Neil’s affidavit, which is
defective. Id.
Third, DeVries argues that he is entitled to summary judgment
on his claimed entitlement to double bonuses because Pioneer admits
that it previously paid them to him and that there have been no

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amendments or addendums to the Agreement. Pioneer’s position that
it had the right to unilaterally change the terms of its written contract
with DeVries in February 2011, he argues, is unsupported by any
authority or evidence, and thus fails. Thus, he argues, he is entitled to
double bonuses for the period at issue. Id. at 5-6.
Finally, DeVries argues that he is entitled to attorney’s fees and
costs under both the Agreement and the Declaratory Judgment Act. Id.
at 6-7.
III. APPLICABLE LAW
A.

Summary Judgment Standard

“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.” Fed. R. Civ. P. 56(a). A
party seeking summary judgment always bears the initial
responsibility of informing the court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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Material facts are those which may affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as
to a material fact is genuine if there is sufficient evidence for a
reasonable fact-finder to return a verdict for the nonmoving party. Id.
If the moving party meets its initial responsibility, the burden then
shifts to the opposing party to establish that a genuine issue of fact
exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986).
B.

Application of Montana Law

As noted, the Court’s jurisdiction over this action is based on
diversity of citizenship. Thus, the Court must apply the substantive
law of the forum state – Montana. Medical Laboratory Mgmt.
Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806,
812 (9th Cir. 2002).
In actions based on diversity jurisdiction, the federal court “is to
approximate state law as closely as possible in order to make sure that
the vindication of the state right is without discrimination because of
the federal forum.” Gee v. Tenneco, Inc., 615 F.2d 857, 861 (9th Cir.
1980). Federal courts “are bound by the pronouncements of the state’s

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highest court on applicable state law.” Appling v. State Farm Mutual
Auto. Ins. Co., 340 F.3d 769, 778 (9th Cir. 2003) (citation omitted). But
when an issue of state law arises and “the state’s highest court has not
adjudicated the issue, a federal court must make a reasonable
determination of the result the highest state court would reach if it
were deciding the case.” Medical Laboratory Mgmt. Consultants, 306
F.3d at 812 (citations omitted). In doing so, the federal court must
“look to existing state law without predicting potential changes in that
law.” Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d 931, 939 (9th Cir.
2001) (citation omitted).
C.

Montana Law on Non-Compete Agreements

“Montana law strongly disfavors covenants not to compete.” Wrigg
v. Junkermier, Clark, Campanella, Stevens, P.C., 265 P.3d 646, ¶ 11
(Mont. 2011). Because Montana’s public policy disfavors agreements in
restraint of trade, courts are to construe such non-compete agreements
strictly. Access Organics, Inc. v. Hernandez, 175 P.3d 899, ¶ 16 (Mont.
2008) (citation omitted).
Montana statutory law reflects this policy. Section 28-2-703,
MCA, provides: “Any contract by which anyone is restrained from

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exercising a lawful profession, trade, or business of any kind, otherwise
than is provided for by 28-2-704 or 28-2-705, is to that extent void.”
The two statutory exceptions to § 28-2-703's general prohibition on such
restraint involve instances in which a business’ goodwill is being sold (§
28-2-704) or a partnership is being dissolved (§ 28-2-705).3
But even in circumstances in which the foregoing two statutory
exceptions do not apply, “section 28-2-703 is not an absolute prohibition
against covenants not to compete.” American Nat’l Prop. and Cas. Co.
v. Camp, 2011 WL 4036148, *2 (D. Mont., Sept. 12, 2011) (citing H&R
Block Tax Servs. v. Kutzman, 681 F.Supp.2d 1248, 1251 (D. Mont.
2010) and Access Organics, 175 P.3d at 902). The Montana Supreme
Court has “upheld agreements which impose reasonable restrictions on
trade.” Access Organics, 175 P.3d at ¶ 16. The supreme court in Access
Organics set forth the analytical framework courts are to apply when
evaluating a non-compete agreement’s reasonableness as follows:
To be upheld as reasonable, a covenant not to compete must
meet three requirements:
(1) [I]t must be partial or restricted in its
operation in respect either to time or place;
3

Although the employment agreement was effective on the same
day as the Stock Purchase Agreement, neither party argues that either
statutory exception applies here.
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(2) it must be on some good consideration; and
(3) it must be reasonable, that is, it should afford
only a fair protection to the interests of the party
in whose favor it is made, and must not be so
large in its operation as to interfere with the
interests of the public.
Id. (citing Montana Mountain Products v. Curl, 112 P.3d 979, ¶ 11
(Mont. 2005) and O’Neill v. Ferraro, 596 P.2d 197, 199 (Mont. 1979));
see also Wrigg, 265 P.3d at ¶ 12 (citing Mungas v. Great Falls Clinic,
LLP, 221 P.3d 1230, ¶39 (Mont. 2009) and Dobbins, Deguire & Tucker,
708 P.2d 577, 580 (Mont. 1985)). “An agreement not to compete must
satisfy all three prongs of the reasonableness test in order to be
upheld.” Id. at ¶ 28 (citation omitted).
“[T]he party seeking to enforce the non-compete agreement . . .
bears the burden of proving that the agreement does not violate
§ 28–2–703, MCA.” Id. (citing Daniels v. Thomas, Dean & Hoskins,
Inc., 804 P.2d 359, 370 (Mont. 1990); State Med. Oxygen v. Amer. Med.
Oxygen, 782 P.2d 1272, 1275 (Mont. 1989); First American Ins. Agency
v. Gould, 661 P.2d 451, 454 (Mont. 1983)).

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IV.

DISCUSSION
A.

DeVries’ Challenges to Pioneer’s Response to His
Motion

The Court must address two challenges DeVries made to
Pioneer’s response to his summary judgment motion. First, the Court
declines to accept DeVries’ invitation to disregard Pioneer’s Statement
of Disputed Facts because Pioneer filed it three days late and did not
file it simultaneously with its timely-filed response brief in violation of
Local Rule 56.1(b).
The Ninth Circuit has “repeatedly held that a motion for
summary judgment cannot be granted simply because the non-moving
party violated a local rule.” Couveau v. American Airlines, Inc., 218
F.3d 1078, 1081-82 (9th Cir. 2000) (citing cases). It is well-settled that
cases should be decided on their merits whenever reasonably possible.
See Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir.
1985).
The Court does not to condone violations of the Local Rules that
thwart the administration of justice or that work unfair prejudice upon
opposing parties. But here, DeVries has neither argued that he has
suffered prejudice nor shown any actual prejudice resulting from the
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three-day delay in Pioneer’s filing of its Statement of Disputed Facts.
And DeVries has not moved to strike the statement despite having had
ample time to do so. Under the circumstances, the Court deems it
appropriate to consider Pioneer’s statement of disputed issues in
addressing DeVries’ summary judgment motion.
Second, respecting DeVries’ argument that the affidavit of Martin
O’Neil (“O’Neil”) contains statements not based on personal knowledge
and are not admissible in evidence, the Court is not persuaded. “At
summary judgment, a party does not necessarily have to produce
evidence in a form that would be admissible at trial.” Nevada Dep’t of
Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (citing Block v. City
of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001)) (internal quotations
omitted). The focus is on the admissibility of the evidence’s contents,
not its form. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003);
Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846 (9th Cir.
2001).
The Ninth Circuit recently noted that “the requirement of
personal knowledge imposes only a ‘minimal’ burden on a witness; if
‘reasonable persons could differ as to whether the witness had an

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adequate opportunity to observe, the witness’s testimony is
admissible.’” Strong v. Valdez Fine Foods, 724 F.3d 1042, 1045 (9th Cir.
2013) (quoting 1 MCCORMICK ON EVIDENCE § 10 (Kenneth S. Broun, ed.,
7th ed. rev. 2013)). Moreover, “[a]t summary judgment, the threshold is
particularly low because all “justifiable inferences” must be drawn in
favor of the nonmoving party.” Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)).
Here, O’Neil’s affidavit, while not a model of clarity, states that
he was the founder of Competition Wireline Services, Inc., and that the
shareholders of Prairie (which did business as Competition Wireline
Services, Inc. (ECF 5-1 at 10-11)), including DeVries and other
shareholders in Prairie, sold shares in Competition to Pioneer. ECF 25
at ¶¶ 2-3. He goes on to opine, “based upon [his] personal knowledge
and belief” (id. at ¶ 1), respecting the principal issues relevant to the
instant summary judgment motion. From these statements, the Court
can reasonably infer that O’Neil has personal knowledge about the
matters at issue, and is therefore competent to execute his affidavit
based on his personal knowledge and belief. Under the foregoing

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authority, these conclusions are particularly evident at the summary
judgment stage of the proceedings. Strong, 724 F.3d at 1045.
B.

Analysis of DeVries’ Arguments Respecting NonComplete Clause

First, respecting DeVries’ contention that the non-compete clause
is a full or absolute restraint on trade, genuine issues of material fact
preclude summary judgment. For example, DeVries states in his
affidavit that “job opportunities for wireline engineers occur where oil
and gas are being extracted.” DeVries Aff. (ECF 23) at ¶ 11. He further
opines that Pioneer “has operations in most oil and gas producing
states in this country.” Id. at ¶ 10. The implication from these
statements is that his ability to pursue his profession or trade as a
wireline engineer would be completely restricted if the non-compete
clause were deemed valid.
But the O”Neil affidavit states that, although wireline engineers
work where there is oil and gas production, they also work “where there
is oil and gas exploration as well as in various other parts of the
country.” O’Neil Aff. (ECF 25) at ¶ 2-3. Id. at ¶ 15. From this evidence,
it can reasonably be inferred that the non-compete clause would not
completely restrict DeVries from working, as he maintains. Thus, the
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Court cannot conclude on the current record that the non-compete
provision is an absolute restraint on trade and thus void as a matter of
law.
In any event, the non-compete clause also is clearly limited in
duration to one year after DeVries no longer works for Pioneer.
Because the non-compete clause is limited to one year, the Court
cannot conclude that it imposes an absolute or full restraint on trade.
See, e.g., American Nat’l Prop. and Cas. Co., 2011 WL 4036148 at *2
(upholding covenant barring competing for one year within 25-mile
radius); H&R Block v. Kutzman, 681 F.Supp.2d at 1251 (upholding
covenant barring franchisee from competing within 45-mile radius for
one year).
Second, fact issues render summary judgment inappropriate
respecting DeVries’ position that the non-compete clause serves no
legitimate business interest for Pioneer. For example, DeVries states
in his affidavit that: (1) his job with Pioneer is not unique and that
competitors do all the same work he does, ECF 23 at ¶ 18; (2) nothing
exists that he could disclose that would be of any use to any other
company or that would compromise Pioneer, id. at ¶ 19; (3) Pioneer

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does not depend on DeVries’ relationships with customers, who simply
call around to companies like Pioneer when they need wireline
engineering services until they find someone who can do the work, id.
at ¶ 20; (4) if customers call Pioneer, they do not ask for DeVries or any
other particular wireline engineer but get whoever is on call at the
time, id. at ¶ 21; and (5) if DeVries were not with Pioneer, it would not
lose any business because customers would continue to simply call
around until they find someone who can do the work, id. at ¶ 22.
But O’Neil, in his affidavit, disputes DeVries’ statements, opining
that Pioneer would suffer a significant detriment if certain information
was disclosed to third parties, including: (1) employee names and
contact information; (2) employee abilities and pay rates; (3) customer
names and contact information; (4) customer pricing; (5) the nature of
services provided by Pioneer to its customers; (6) future work to be
performed by Pioneer; and (7) customer demands and locations of work
to be performed. ECF 25 at ¶ 11.
O’Neil also states that Pioneer would likely lose business if
DeVries were to leave Pioneer because: (1) many customers call Pioneer
before calling other companies when they need engineering services

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and frequently ask for a specific engineer based on prior experience
with or on the reputation of an individual engineer; (2) certain Pioneer
clients specifically ask for DeVries or another specific engineer for
wireline services; and (3) a significant portion of wireline service
business is developed based on relationships between customers and
wireline engineers. Id. at ¶ 13.
The foregoing conflicting evidence concerning whether Pioneer
has a legitimate business interest in barring DeVries from working for
its competitors creates genuine issues of material fact that render
summary judgment inappropriate.
Third, respecting DeVries’ argument that the non-compete clause
is not a reasonable partial restraint on trade, the Court again concludes
that fact issues preclude summary judgment. As noted above, DeVries
does not argue that the clause is insufficiently limited in operation
either as to time or place, or that it is not based on some good
consideration. ECF 21 at 8. Rather, he argues that it fails the third
prong of the three-part test for reasonableness because it provides
Pioneer protections that are unreasonable in that it places overly broad
place limitations concerning where he could work. Id. at 8-10.

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DeVries’ argument centers on his position that wireline engineers
perform work that is limited to those locations where there is oil and
gas production. Because he is limited to working in such locations, and
because Pioneer has facilities nationwide in all or nearly all such
locations, he argues, enforcement of the non-compete clause will
essentially prevent him from earning a living. But, as already noted
above, genuine issues of material fact exist respecting the types of
places wireline engineers might work. As noted, Pioneer has presented
evidence that, although wireline engineers work where there is oil and
gas production, they also work “where there is oil and gas exploration
as well as in various other parts of the country.” ECF 25 at ¶ 15. So it
can reasonably be inferred that the non-compete clause would not
completely restrict DeVries from working as a wireline engineer. And,
as noted, the non-compete clause is limited to one year. Thus, the
Court concludes that summary judgment is not appropriate on DeVries’
assertion that the non-compete clause is unreasonable. See, e.g.,
Mungas v. Great Falls Clinic, LLP, 221 P.3 1230, ¶¶ 39-40 (Mont. 2009)
(remanding for trial issue of whether covenant not to compete was
reasonable because issue required factual determinations).

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C.

Analysis of DeVries’ Arguments Respecting His Claim
for Double Bonuses

Genuine issues of material fact also preclude summary judgment
on DeVries’ claim that Pioneer breached the Agreement by failing to
pay him double bonuses. As noted, it is undisputed that DeVries
received the bonuses from March 2008 until February 13, 2011, when
the bonuses stopped. And the parties agree that shortly after August
28, 2013, DeVries no longer traveled the required distances to earn
such bonuses. Thus, the only period at issue during which DeVries
claims entitlement to double bonuses is between February 13, 2011,
and August 28, 2013.
In his affidavit, DeVries states that: (1) he has kept records of jobs
that required him to travel the requisite distance – 600 miles round
trip – to be eligible for the double bonuses, ECF 23 at ¶ 13; (2) he
traveled from Billings to job sites more than 600 miles round trip from
February 13, 2011, until August 28, 2013, id. at ¶ 15; and (3) the jobs
that required round trip travel exceeding 600 miles during the relevant
time are listed on a spreadsheet attached as Exhibit C (ECF 23-3) to
his affidavit, id. at ¶ 16.

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O’Neil, however, states in his affidavit that: (1) “[t]he doublebonus payments were eliminated in February 2011 except for holiday
double-bonues ... [and] [i]nstead Pioneer increased the job bonus
percentages, ECF 25 at ¶ 6; (2) all field engineers, including DeVries,
were required to submit their own travel records or “bonus sheets”
indicating the mileage they traveled to a jobsite, id. at ¶ 7; and (3) after
the bonus structure change in 2011, he was not aware of any weekly
bonus sheets showing DeVries exceeded the requisite distance that
previously permitted a double bonus, id. at ¶ 9.
From this conflicting evidence, genuine issues of material fact
exist that preclude summary judgment. For example, from the
foregoing evidence, the fact finder might conclude that the parties
orally modified the Agreement respecting bonuses and acted on that
oral modification. See MCA § 28-2-1602 (“A contract in writing may be
altered by a contract in writing or by an executed oral agreement, and
not otherwise.”). If both parties fully performed and DeVries received
increased job bonus percentages, DeVries “may be estopped from
asserting damages arising from breach of the original contract.”
DeNiro v. Gasvoda, 982 P2d 1002, at ¶ 13 (Mont. 1999) (citation

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omitted). The underlying factual determinations for whether this
occurred are appropriately left to the trier of fact. Summary judgment
on DeVries claim for breach of the Agreement should be denied.
D.

DeVries’ Claim for Attorney’s Fees

In light of the foregoing, DeVries claim for attorney’s fees is
premature and summary judgment respecting that claim should be
denied.
V.

CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that DeVries’

summary judgment motion (ECF 20) be DENIED.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Findings and Recommendation of United States
Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendation must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after entry hereof,
or objection is waived.
DATED this 18th day of August, 2015.
/S/ Carolyn S. Ostby
United States Magistrate Judge
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