No. 23-3610 ___________________________

Wilbur-Ellis Company, LLC

Plaintiff - Appellant

v. Brett Jens; Shane Fastnacht; Phylicia Hoffman; Wes Hotchkiss; J.R. Simplot Company

Defendants - Appellees ___________________________

No. 23-3749 ___________________________

Wilbur-Ellis Company, LLC

Plaintiff - Appellee

v.

Brett Jens; Shane Fastnacht; Phylicia Hoffman; Wes Hotchkiss

Defendants

J.R. Simplot Company

Defendant - Appellant ____________

Appeal from United States District Court for the District of South Dakota ____________

Submitted: October 23, 2024 Filed: May 30, 2025 ____________ Before LOKEN, SMITH, and GRASZ, Circuit Judges. ____________ GRASZ, Circuit Judge.

Brett Jens resigned from his job at Wilbur-Ellis Company, LLC, and then began working for a competitor, J.R. Simplot Company. Wilbur-Ellis sued Jens and Simplot and sought a preliminary injunction to enforce restrictive covenants in Jens’s employment agreement with Wilbur-Ellis and to prevent Simplot’s tortious interference with his employment agreement. After concluding the restrictive covenants were no longer enforceable, the district court 1 denied Wilbur-Ellis’s motion for a preliminary injunction and Wilbur-Ellis now appeals. We affirm.

I.

In 2007, Wilbur-Ellis Air, LLC, 2 purchased Krech Dakota Airspray, Inc., in which Jens was a minority owner and employee. As part of the acquisition, Jens and Wilbur-Ellis entered into an employment agreement (Agreement). The Agreement set an approximately three-year term of employment that would “continue through February 28, 2010.” Thereafter, Jens’s employment would “continue at will” and could be “terminate[d] upon written notice . . . by either party.”

1 The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota. 2 Wilbur-Ellis Air, LLC, was a wholly owned subsidiary of Wilbur-Ellis Company, Inc. Wilbur-Ellis Company, Inc. then converted to Wilbur-Ellis Company, LLC, the appellant here. -2- The Agreement contained a non-competition and non-solicitation provision (Restrictive Covenants), as well as a confidentiality and nondisclosure provision. Per these provisions, Jens agreed he would “not, at any time for a period of three (3) years following the date his employment is terminated, for whatever reason (the ‘Restriction Period’), directly or indirectly”: (a) “engage in any business engaged in the marketing, distribution, sale or application . . . of agricultural chemicals, fertilizers, seed and related products within [100] miles of the area served by [Dakota Airspray]”; (b) solicit or divert or accept business from any customer of Wilbur-Ellis Air, LLC; or (c) “solicit the employment of any person employed by Wilbur-Ellis Air, LLC, or its affiliates or subsidiaries.”

More than sixteen years later in June 2023, Jens resigned from Wilbur-Ellis. He then began working for Simplot. A week after Jens’s resignation, Wilbur-Ellis filed its initial complaint against Jens and Simplot. In its amended complaint, Wilbur-Ellis alleged several claims, including breach of the Agreement by Jens. After limited discovery, Wilbur-Ellis sought a preliminary injunction based on its breach claims against Jens, seek