OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Defendant Michael Lepore's ("Defendant" or "Lepore") Motion for Summary Judgment on Counts I, II, and VI of the Amended Complaint (the "Motion for Summary Judgment") [7].

I. BACKGROUND

This action centers on a contract entered into between Plaintiff Matthew Focht Enterprises, Inc. ("Plaintiff" or "MFE") and Lepore. Plaintiff alleges that Defendant breached the contract (Count I), tortiously interfered with Plaintiff's contractual relations (Count II), and breached Defendant's fiduciary duty as a faithful agent to Plaintiff (Count IV).1 [2, at 7-11]. Plaintiff's claims in Counts I and II fundamentally are based on three sections of its contract with Defendant: Sections 2.01, 5.08 and 5.09(a). Plaintiff asserts that these sections individually and collectively prohibit Defendant from competing with Plaintiff or soliciting Plaintiff's customers. Plaintiff seeks an injunction to enforce these provisions of the contract (Count VI), a declaration that Plaintiff is not required to pay further compensation to Defendant under the contract (Count VII), and an award of punitive damages (Count VIII) and attorney's fees (Count IX). [Id. at 11-14].

A. Factual Background

Plaintiff processes credit card, debit card, gift card, loyalty card, leasing and ACH payments, for merchants. [2, at 17]. Defendant is in the business of marketing services to business entities that accept credit cards and other payment methods for goods and services. [3-1, at 1].

On March 24, 2009, Plaintiff and Defendant entered into an Independent Contractor Agreement (the "Agreement") [3-1], in which Defendant agreed to market Plaintiff's payment services for a fee. The Agreement contains various provisions restricting Defendant from engaging in conduct that would compete with Plaintiff's business.

Section 2.01 of the Agreement provides:

[3-1, § 2.01].

Sections 5.08 of the Agreement provides:

[3-1, § 5.08].

Section 5.09(a) of the Agreement provides:

[3-1, § 5.09(a)].

In the spring of 2012, Defendant advised Plaintiff that other credit-card processing firms were compensating their sales personnel at rates higher than what Plaintiff was compensating its salesforce. [2, ¶ 16; 4, ¶ 16]. Plaintiff claims that sometime after this communication, Defendant, in violation of the Agreement, began soliciting Plaintiff's credit-card processing customers for one of MFE's competitors. [1, ¶¶ 17-19, 29-37].

Procedural History

On November 21, 2012, Plaintiff initiated this action in the Superior Court of Cobb County, Georgia (the "Action"). On December 31, 2012, Defendant removed the Action to this Court [1]. Plaintiff filed its Amended Complaint [2] on December 31, 2012, and on February 1, 2013, Defendant filed his Motion for Summary Judgment [7], arguing that Sections 2.01, 5.08 and 5.09(a), the restrictive covenants, are unenforceable under Georgia law. [7, at 1].

II. DISCUSSION

A. Legal Standard

A 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). Parties "asserting that a fact cannot be or is genuinely disputed must support that assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1).

The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the moving party has met this burden, the non-movant must demonstrate that summary judgment is inappropriate by designating specific facts showing a genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). Non-moving parties "need not present evidence in a form necessary for admission at trial; however, [they] may not merely rest on [their] pleadings." Id.

The Court must view all evidence in the light most favorable to the party opposing the motion and must draw all inferences in favor of the non-movant, but only "to the extent supportable by the record." Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)). "[C]redibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury . . . ." Graham, 193 F.3d at 1282. "If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial." Herzog, 193 F.3d at 1246. But, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," summary judgment for the moving party is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

B. Analysis

1. Enforceability of the restrictive covenants (Count I)

Plaintiff claims that three provisions of the Agreement prohibit Defendant from engaging in certain competitive conduct. First, Plaintiff claims that Section 2.01 prohibits Defendant, during the term of the Agreement, from entering into any agreement with another company to solicit merchants for a business or entity other than Plaintiff's payment-processing business. Section 5.08, Plaintiff claims, prohibits Defendant, during the term of the Agreement and for five (5) years after termination, from soliciting or providing services that compete with Plaintiff's services, from interfering with Plaintiff's relationships with its customers, or from soliciting or marketing any service that is directly or indirectly provided to a customer by Plaintiff, including services outside of those covered by the Agreement. Section 5.09, Plaintiff argues, prohibits Defendant, during the term of the Agreement and for five (5) years after termination, from soliciting or marketing to Plaintiff's customers, or calling or soliciting or taking away any of Plaintiff's "customers, referral partners, affiliates, agents and vendors on whom plaintiff called or with whom Plaintiff became acquainted during its contractual relationship with [Plaintiff]." Defendant claims these Agreement provisions are unenforceable under Georgia law.2

The law in Georgia is well-established that contracts that restrain trade are void as against public policy.3 The Georgia Supreme Court, in Atlanta Bread Co. Int'l, Inc. v. Lupton-Smith, stated the Georgia policy basis for the law:

679 S.E.2d 722, 724 (Ga. 2009) (quoting Rakestraw v. Lanier, 30 S.E. 735, 738 (Ga. 1898)).

The prohibition does not distinguish between restrictive covenants, sometimes called non-competition covenants, that apply during or after a contract term. See, e.g., Shirk v. Loftis Bros. & Co., 97 S.E. 66 (Ga. 1918) (contract prohibiting employee, "during the term of his employment, and for a period of one year thereafter" from divulging to anyone outside of the employer, knowledge relating to sales prospects acquired by him during term of employment, was no more than reasonably necessary to afford fair protection to interests of employer); Reardigan v. Shaw Indus., Inc., 518 S.E.2d 144 (Ga. Ct. App. 1999) (duration of non-compete provisions that applied "during . . . employment with [company] and for a period ending on December 31st of the calendar year following the calendar year in which your employment terminates" not unreasonable); cf. Atlanta Bread, 679 S.E.2d 722 (restrictive covenant prohibiting franchisee from engaging in any competitive activity during the term of franchise agreement unenforceable as overly broad).4

Restrictive covenants in an employment agreement "will be upheld if the restraint imposed is not unreasonable, is founded on a valuable consideration, is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public." W.R. Grace & Co. v. Mouyal, 422 S.E.2d 529, 531 (Ga. 1992). "[R]estrictive covenants in contracts for services by independent contractors [are] . . . treated like employee covenants ancillary to employment contracts." Paragon Tech., Inc. v. Infosmart Tech., Inc., 718 S.E.2d 357, 358 (Ga. Ct. App. 2011) (internal quotation marks omitted) (citing Jenkins, 259 S.E.2d at 49-50); accord Northside Hosp., Inc. v. McCord, 537 S.E.2d 697, 699 (Ga. Ct. App. 2000). Georgia courts generally look to three factors to determine whether a restrictive covenant is reasonable: (i) the duration of the restrictions, (ii) their territorial coverage, and (iii) the scope of restricted activities. See id.; Murphree v. Yancey Bro. Co., 716 S.E.2d 824, 827 (Ga. Ct. App. 2011); McAlpin v. Coweta Fayette Surgical Assoc., P.C., 458 S.E.2d 499, 501 (Ga. Ct. App. 1995); Arnall Ins. Agency, Inc. v. Arnall, 396 S.E.2d 257, 259 (Ga. Ct. App. 1990). In applying these factors, courts also consider "the nature and extent of the trade or business, the situation of the parties, and all the other circumstances." Mouyal, 422 S.E.2d at 531; see Howard Schultz & Assoc. of the Southeast, Inc. v. Broniec, 236 S.E.2d 265, 267 (Ga. 1977) (restrictive covenants enforceable where strictly limited in time and territorial effect and otherwise reasonable considering the employer's business interest and the effect on the employee). "Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court." Mouyal, 422 S.E.2d at 531.

Over the years, Georgia courts have established certain reasonableness standards. For example, restrictive covenants in an employment or independent contractor services contract are reasonable if (i) the restriction period does not exceed two (2) years following contract termination, and (ii) the restriction only applies to clients the employee actually served during the contract term. See Murphree, 716 S.E.2d at 827. Periods of restriction exceeding two years following a contract's termination are generally unreasonable and unenforceable. See Swartz Inv., LLC v. Vion Pharm., Inc., 556 S.E.2d 460, 464-65 (Ga. Ct. App. 2001); Greer v. Lifsey, 197 S.E.2d 846, 847-48 (Ga. Ct. App. 1973). If the person subject to the covenant is prohibited from serving or seeking business from clients that the person did not serve during the contract term, the restrictive covenant must contain a reasonable territorial restriction to be enforceable. See Carson v. Obor Holding Co., LLC., 734 S.E.2d 477, 482 (Ga. Ct. App. 2012); Trujillo v. Great Southern Equip. Sales, LLC., 657 S.E.2d 581, 584 (Ga. Ct. App. 2008); Hostetler v. Answerthink, Inc., 599 S.E.2d 271, 274 (Ga. Ct. App. 2004); Advance Tech. Consultants, Inc. v. Roadtrac, LLC., 551 S.E.2d 735, 738 (Ga. Ct. App. 2001). Finally, where a restrictive covenant seeks to prohibit post-termination business activities in which a former employee did not engage and otherwise is unrelated to the former employee's business, the restriction is considered unreasonable. Mouyal, 422 S.E.2d at 532; accord Carson, 734 S.E.2d at 482. It is against this backdrop that the Court evaluates the restrictive covenants in the Agreement.

a. Sections 5.08 and 5.09(a)

(i) Duration

The record shows that both Section 5.08 and Section 5.09(a), besides applying during the term of the Agreement, continue to apply for five years after termination of the Agreement. [3-1, §§ 5.08, 5.09(a)]. It is well-established that a post-termination restriction period greater than two years is facially unreasonable, and on the facts here, the "nature and extent of the trade or business, the situation of the parties, and all the other circumstances" do not support that these provisions otherwise are reasonable. Mouyal, 422 S.E.2d at 531. The duration of Sections 5.08 and 5.09(a) is unreasonable, and for this reason alone, Sections 5.08 and 5.09(a) are not enforceable under Georgia law. Swartz, 556 S.E.2d at 464-65; Greer, 197 S.E.2d at 847-48.

(ii) Scope of activities

The scope of the activities in which Defendant is prohibited from engaging is ill-defined, ambiguous and wide-ranging. In Section 5.08, Defendant is prohibited from "soliciting or providing" services that compete with Plaintiff's services, even though they were not services Defendant provided to Plaintiff, and is further prohibited from soliciting or providing "any service" that is already directly or indirectly provided by Plaintiff to any of Plaintiff's customers, even services outside those covered by the Agreement. The scope of restriction even includes customers with whom Defendant has not had contact and those who contact Defendant unsolicited. Carson, 734 S.E.2d at 482. The scope of activity restriction is uncertain, ambiguous, troublingly overbroad and otherwise unreasonable. For this additional reason, the provisions are unenforceable. See id.; Mouyal, 422 S.E.2d at 532.

(iii) Territorial coverage

Sections 5.08 and 5.09(a) also do not contain any territorial limit on the restrictions imposed by the provisions. A territorial limitation is necessary to give the employee notice of what constitutes a violation of the restrictive covenant and "must specify with particularity the territory in which the employee is restricted." Wiley v. Royal Cup, Inc., 370 S.E.2d 744, 745 (Ga. 1988). Here, the absence of any territorial limitation fails completely the requirement of territorial specificity, and for this further reason, the Court finds the restrictions in Sections 5.08 and 5.09(a) unreasonable and unenforceable.

All of the reasonableness factors—including duration, territorial coverage and scope of activities—alone and in combination—require the Court to conclude that Sections 5.08 and 5.09(a) are unreasonable and unenforceable. See Carson, 734 S.E.2d at 482; Trujillo, 657 S.E.2d at 584; Hostetler, 599 S.E.2d at 274; Swartz, 556 S.E.2d at 464-65; Advance, 551 S.E.2d at 738; Greer, 197 S.E.2d at 847-48.

b. Section 2.01

The Court next considers Section 2.01 of the Agreement, which prohibits Defendant, during the term of the Agreement, from soliciting Plaintiff's customers on behalf of Plaintiff's competitors.5

Although Section 2.01 applies only during the period of the Agreement, the general rules of reasonableness apply, and the three factors—duration, territorial coverage and scope of activities—guide the Court in its review. Section 2.01 is durationally limited to the term of the Agreement, but it does not have any territorial or scope-of-activities limitation. The section, in fact, prohibits Defendant from "entering into any relationship with any organization or entity that would effect an indirect relationship with any . . . bank, company, ISO or financial institution" for whom MFE provides services. The provision is ambiguous, and its disturbingly broad reach would, for example, substantially prohibit Defendant from forming any kind of business relationship with any bank, even if the relationship is completely unrelated to the services Defendant provided to MFE. Standing alone,

Section 2.01 is facially unreasonable.6

Because the Court finds that the Agreement's restrictive covenants are unenforceable in Georgia as a matter of law, Defendant's Motion for Summary Judgment on Plaintiff's breach-of-contract claim is required to be granted.

2. Tortious interference with contractual relations (Count II)

A claim for tortious interference with contractual relations has four elements: (1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or their parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant's tortious conduct proximately caused damage to the plaintiff. Gordon Document Prods., Inc. v. Serv. Tech., Inc., 708 S.E.2d 48, 53 (Ga. Ct. App. 2011); Kirkland v. Tamplin, 645 S.E.2d 653, 655-56 (Ga. Ct. App. 2007); Sommers Co. v. Moore, 621 S.E.2d 789, 791 (Ga. Ct. App. 2005).

Georgia courts define "improper action or wrongful conduct" to mean "conduct wrongful in itself," or conduct that "generally involves predatory tactics such as physical violence, fraud or misrepresentation, defamation, use of confidential information, abusive civil suits, and unwarranted criminal prosecutions." Kirkland, 645 S.E.2d at 656 (citing Sommers, 621 S.E.2d at 791); accord Gordon, 708 S.E.2d at 53.

The record does not support that Defendant engaged in any act that involved predatory tactics or any act that was wrongful in itself. The Court has found that Sections 2.01, 5.08 and 5.09(a) are unenforceable. "Fair competition is always legal, and absent a valid noncompete or nonsolicit covenant[,] a former employee may go to customers whom he procured for the old employer and endeavor to persuade them to change their trade to his advantage." Tom's Amusement Co., Inc. v. Total Vending Servs., 533 S.E.2d 413, 418 (Ga. Ct. App. 2000). See also Gresham & Assoc., Inc. v. Strianese, 595 S.E.2d 82, 86 (Ga. Ct. App. 2004) (granting summary judgment for the defendant where the defendant took away customers from an old employer). "[A]n employee is permitted to solicit his former customers on behalf of a new employer." Contractors' Building Supply, Inc. v. Gwinnett Sash & Door, Inc., 403 S.E.2d 844, 846 (Ga. Ct. App. 1991).

Plaintiff does not allege, and the record does not support, that Plaintiff's customers breached their contracts with Plaintiff. Even if some set of customers ceased using Plaintiff's service in breach of their contracts, which the record does not show, the undisputed evidence is that Defendant did not engage in any wrongful inducing activity to cause this change in commercial relationships. Simply persuading someone to breach a contract, absent "predatory tactics such as physical violence, fraud or misrepresentation, defamation, use of confidential information, [and] abusive civil suits," is not improper conduct that constitutes a tortious interference with contractual relationships. See Kirk, 645 S.E.2d at 656 (affirming a grant of summary judgment for the defendant where the defendant persuaded a party to breach a contract with the plaintiff). Simply put, the record does not contain any evidence that any conduct by Defendant was the actual cause of customer defections.

The Court concludes that no reasonable juror could find that Defendant tortiously interfered with Plaintiff's contractual relations with Plaintiff's customers. See Gordon, 708 S.E.2d at 55 (affirming a grant of summary judgment for the defendant where the plaintiff failed to show that the defendant's solicitation caused the plaintiff's customers to cease doing business with the plaintiff). Summary judgment is required to be granted on Count Two.

3. Injunctive relief (Count VI)

Under Georgia law, a "writ of injunction" may issue to restrain "a threatened or existing tort, or any other act of a private individual . . . which is illegal or contrary to equity . . . and for which no adequate remedy is provided at law." O.C.G.A. § 9-5-1. "The granting and continuing of injunctions shall always rest in the sound discretion of the judge . . . .This power shall be prudently and cautiously exercised and, except in clear and urgent cases, should not be resorted to." O.C.G.A. § 9-5-8.

Here, Plaintiff seeks to enjoin competitive activity that it claims violates the Agreement's restrictive covenants or constitutes tortious interference. Having found the restrictive covenants to be unenforceable and having granted summary judgment on Plaintiff's tortious-interference claim, there are no grounds for injunctive relief. Summary judgment is required to be granted on Count VI of the Amended Complaint.

III. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment as to Counts I, II, and VI of the Amended Complaint [7] is GRANTED.

SO ORDERED.