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Willert v. Andre

United States District Court, W.D. Wisconsin

July 30, 2018


          OPINION & ORDER


         Plaintiffs Gary and Lisa Willert are the sole members of plaintiff LaserMasters, LLC, a refurbisher of toner cartridges for printers. In 2014, LaserMasters acquired Global Printer Services, Inc., a printer remanufacturer, from defendant Bruce Andre. Plaintiffs allege that Andre breached the contract covering the acquisition by encouraging several Global Printer employees to go to work for its competitor, defendant Liberty Parts Team, Inc., and by falsely informing Global Printer customers that Global Printer had gone out of business. Plaintiffs assert various state-law claims against defendants. Dkt. 25. Each defendant now moves for summary judgment. Dkt. 65 and Dkt. 77. Because plaintiffs have failed to adduce evidence to support any of their claims, the court will grant summary judgment in defendants' favor. Plaintiffs' case was not a strong one, and perhaps they should have abandoned some claims, but the court will deny Andre's motion for sanctions. Dkt. 125.


         Some of plaintiffs' proposed facts are conclusory and lack evidentiary support. And many of plaintiffs' proposed facts contain multiple factual propositions in each paragraph, contrary to the court's procedures on motions for summary judgment. See Dkt. 51, at 3. The court will accept a proposed fact as true where no party disputes it, and where the proponent cites to admissible evidence in support of the fact, and the other side offers no evidence in response.

         The following facts are undisputed except where noted.

         This case concerns the printer and cartridge refurbishing and remanufacturing industry. There are three main types of businesses in this industry: (1) remanufacturers, which rebuild printers and toner cartridges to the original manufactured product's specifications using reused, repaired, and new parts; (2) refurbishers, which clean and repair minor defects in printers and cartridges; and (3) parts suppliers, which supply parts for remanufacturers and refurbishers.

         In the early 1990s, defendant Bruce Andre worked for Parts Now!, a parts supplier in Wisconsin owned by David Reinke. Andre left Parts Now! in 1995 and founded Global Printer Services, Inc., a printer remanufacturer in Wisconsin. But Andre and Reinke remained on good terms and have kept in touch. Reinke sold Parts Now! in 1999. In 2004, he founded Liberty Parts Team, Inc., another parts supplier also located in Wisconsin.

         Meanwhile, in 1996, plaintiffs Lisa and Gary Willert bought LaserMasters, LLC, a business focusing almost exclusively on remanufacturing toner cartridges. (LaserMasters is headquartered in Arizona and is also known as “LMI Solutions.”) In 2014, LaserMasters, through a subsidiary, GPS Holdings, LLC, acquired Global Printer from Andre. Under the terms of the contract governing the acquisition, Global Printer was to pay Andre $5, 500, 000 and LaserMasters was to issue Andre 75, 000 membership units in LaserMasters. In exchange, Andre agreed to be bound by several restrictive covenants. Three restrictive covenants are at issue in this suit. First, the noncompetition covenant barred Andre from investing in, owning, managing, operating, financing, controlling, advising, consulting, or guaranteeing the obligations of any “printing remanufacturing sales and services” business for five years. Dkt. 25-1, ¶¶ A, 12.1. Second, the nonsolicitation covenant barred Andre from causing or inducing any customer, supplier, licensee, franchisee, employee, or consultant of Global Printer to cease doing business with Global Printer or to stop working with Global Printer for five years. Id. ¶ 12.2. Third, the nondisparagement covenant barred Andre from making any statement about Global Printer that would cause or tend to cause the recipient to question Global Printer's “business condition, integrity, competence, fairness, or good character.” Id. ¶ 12.3.

         Post-acquisition, plaintiffs controlled Global Printer, although Andre was still involved-he was named president of Global Printer. (The parties dispute whether Global Printer continued to operate under the Global Printer name post-acquisition, and no one adduces decisive evidence on the issue. The issue is not material, so for simplicity, the court will refer to it as Global Printer regardless of the time period.) But Andre's involvement was short lived. In August 2015, Gary Willert fired Global Printer's vice president and filled the position with his son, Matt Willert. Shortly after, Andre decided to leave the company and sell his membership units back to LaserMasters. Under a series of contracts governing the buyout, Andre reaffirmed his commitment to be bound by the restrictive covenants, and the Willerts agreed to pay him $2, 150, 000. The Willerts have yet to pay most of that amount; their failure to do so is the subject of a related lawsuit, Andre v. Willert, No. 17-cv-598 (Dane Cty. Cir. Ct. filed Mar. 13, 2017). While Andre and the Willerts were negotiating the buyout, LaserMasters acquired Parts Now!. The contracts for that buyout were signed on November 13, 2015.

         Andre had personal relationships with many Global Printer employees. In fact, he frequently referred to them as “family.” Dkt. 61 (Andre Dep. 35:10-12). He remained in touch with several Global Printer employees after he left the company. Andre's communications with those employees and Reinke during this time form the basis for most of plaintiffs' claims, so the court sets them out here in detail.

         On November 13, 2015, Reinke called Andre and congratulated him on the buyout. The next day, Andre texted Global Printer employee Diana Wearing, asking for Chad Anderson's number. (We don't know who Chad Anderson is.) The following week, he met with Tom Gantenbein, another Global Printer employee.

         In January 2016, Andre had lunch with Reinke.

         On February 9, Andre exchanged the following text messages with Wearing:

Andre: How did the meeting go yesterday? Did they get rid of anyone?
Wearing: Happened after I left-haven't had a chance to talk to Mike or Tom yet…I'll let you know
Andre: No news is probably good news Wearing: Probably…

Dkt. 102-5, at 5. The next week, Wearing texted Andre, thanking him for “pick[ing] up the tab” “the other night.” Id.

         On March 3, Andre and Gantenbein texted:

Andre: I heard about MN and Ladd. How are you?
Gantenbein: Livin the dream Andre: Let me know if you want to get together for a beer after work.
Gantenbein: I will let you know. Not sure at this point. Thanks Andre: OK Gantenbein: Ok yes. . . .

Dkt. 102-7, at 1. The parties indicate that “MN” refers to LaserMasters' planned closing of a facility in Minnesota and that “Ladd” refers to another Global Printer employee who had recently resigned.

         On March 16, Andre talked to another Global Printer employee, Roy Divine. The next day, Andre exchanged the following text messages with Wearing regarding Divine:

Wearing: Just in case you haven't heard… They fired Roy this afternoon Andre: I heard. Did he know it was coming
Wearing: No…he did say he told you last night he had a feeling something had changed-he was right… Andre: I thought he was talking about not being a manager

Dkt. 102-5, at 6-7.

         On March 28, Global Printer employee Elyse Birkett texted Andre:

Birkett: So I'm pretty sure I'm putting my notice in this week. 3 weeks out, right before my vacation. I am not a risk taker, I'm sort of freaking out.
Andre: Wow. I just got your message. How are you doing? Did something happen, or just enough is enough?
Birkett: Ughh enough!!! Just may have spoken to a voice of reason for the last hour though so slight mind change.
Skippy essentially wants me to schedule Atlanta production for Linwood. Fucking ridiculous.
Andre: Big decision, probably good to take your time. Fucking ridiculous Birkett: But regardless, hitting it hard to get out so keep your ears to the wall for me if you hear of anything please let me know!

         Dkt. 102-8, at 7-8. During a deposition, Andre testified that “Skippy” probably refers to Matt Willert. Birkett and Andre didn't text again for more than two weeks.

         On May 2, Gantenbein and Andre met at Andre's house. On May 31, Gantenbein sent Andre the following text messages:

Gantenbein: Mike G got Leroy go
Let go

Dkt. 102-7, at 3. On June 1, Gantenbein met Andre at a bowling alley.

         On Monday, June 6, Wearing texted Andre:

Wearing: Hi Bruce-you've got a stack of mail here…Matt will be out of the office Tuesday and Wednesday if you want to stop by and pick it up:)
Andre: Sounds good I will stop in

Dkt. 102-5, at 12-13. Later that day, Andre texted Wearing again:

Andre: I am going to stop in at 9:00 on Wednesday. The insurance company wants to do a walk through

Id. at 13. (Andre still owned the property where Global Printer's offices were located, and his insurance company had asked him to schedule a time for a “loss control survey.” Dkt. 117-1; see also Dkt. 117, ¶¶ 6-8.)

         On Tuesday, June 7, Birkett texted Andre:

Birkett: Just put my notice in, last day next Friday. Old GPS happy hour next Thursday at waypoint public house in Monona-come hang!
Andre: Wow! Very cool. LPT?
Birkett: Yep. Or….I mean…maybe lol
Birkett: I have another offer from hometown pharmacy too (which I turned down but haven't told anyone that), back to back offers. It was a pretty darn good weekend!
Andre: Congrats either way. Talk to you later
Birkett: Oh and I got preapproved for a house. Finally moving in the right direction again!

Id. at 10-11. That same day, Birkett emailed several Global Printer employees, including Brehm, informing them of her imminent departure and inviting them to an “‘old global' happy hour” the following Thursday. Dkt. 102-11, at 2. Brehm responded, suggesting that seven other people (whom the court takes to be former Global Printer ...

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