No. 22-1138 ___________________________

Core and Main, LP

lllllllllllllllllllllPlaintiff - Appellant

v.

Ron McCabe; Dakota Supply Group, Inc.

lllllllllllllllllllllDefendants - Appellees ____________

Appeal from United States District Court for the District of Minnesota ____________

Submitted: October 19, 2022 Filed: March 1, 2023 ____________ Before LOKEN, GRUENDER, and GRASZ, Circuit Judges. ____________ LOKEN, Circuit Judge.

Core and Main, LP (“C&M”), headquartered in St. Louis, supplies water, wastewater, storm drainage, and fire protection products and services to commercial and governmental customers. On October 6, 2017, C&M expanded its Midwest operations by acquiring the assets of Minnesota Pipe and Equipment Company (“MPE”), which supplied the same products and services in areas of Minnesota and South Dakota. Six shareholders of MPE were parties to the Asset Purchase Agreement and to a separate Noncompetition Agreement that was “a condition precedent to C&M’s obligation” to close the purchase.

One of the shareholders, Ron McCabe, was part of MPE’s management team. Based on McCabe’s longstanding customer relations after thirty years of selling waterworks products, C&M and McCabe entered into a separate at-will Employment Agreement in which C&M employed McCabe as an Outside Sales Representative, agreeing to pay him at least $250,000 in commissions and bonus and to provide enumerated employee benefits in the first year. The Employment Agreement was made “contingent on the closing of the sale of [MPE] to [C&M].”

On June 1, 2021, unhappy that he had not become part of C&M’s management team, McCabe quit his sales representative position. One week later, he started work at Dakota Supply Group, Inc. (“DSG”), a C&M competitor. Both the Noncompetition Agreement and the Employment Agreement included restrictive covenants and an “Entire Agreement” provision. C&M brought this diversity action against McCabe and DSG, asserting breach of the Employment Agreement’s noncompete and confidentiality covenants, tortious interference, and related claims. The district court granted defendants’ Rule 12(b)(6) motion to dismiss for failure to state a claim.1 The

1 The district court declined to dismiss C&M’s breach of loyalty claim, so its Order was not an appealable “final decision.” 28 U.S.C. § 1291. The court then voluntarily dismissed the loyalty claim without prejudice. We have “repeatedly criticized the use of dismissals without prejudice to manufacture appellate jurisdiction in circumvention of the final decision rule.” West Am. Ins. Co. v. RLI Ins. Co., 698 F.3d 1069, 1071 n.1 (8th Cir. 2012). This is not a jurisdictional issue because the district court has given the “clear and unequivocal manifestation” of its intent to enter a final decision that § 1291 requires. However, in most cases, a district court abuses its discretion “when it frustrates the limitations on federal appellate jurisdiction” in this manner. Great Rivers Coop. v. Farmland Indus., 198 F.3d 685, 689 (8th Cir. 1999). At oral argument, C&M agreed that we amend the dismissal of the claim to be with prejudice. We direct the district court to modify its Order of January 4, 2022.

-2- principal issue on appeal is whether the court correctly concluded that the Noncompetition Agreement was a later agreement and therefore its Entire Agreement provision superseded the restrictive covenants in McCabe’s Employment Agreement. Concluding that the breach of contract and tortious interfe