D2L Ltd. v. Biggs (Maryland. U.S.D.C.)

 Filed: August 22, 2019

Opinion by: Blake, J.

Holding: Plaintiff’s lawsuit for breach of a noncompetition agreement in Maryland against out of state defendants was dismissed for lack of personal jurisdiction as the Defendant had little contact with Maryland, did not conduct but a small percentage of business with Maryland customers, and no evidence was offered that the Defendant had induced Plaintiff’s former employee to breach his obligations under the noncompetition agreement.

Facts: Plaintiff is a “global cloud software company” incorporated in Maryland and headquarted in Canada. Kevin Biggs, a California resident and former employee, was sued by Plaintiff on the basis of Plaintiff’s allegations that Biggs had violated his non-solicitation agreement with Plaintiff. This agreement provided a consent to suit in Maryland provision. After leaving his employment with Plaintiff, Biggs began working for Defendant OneLogin, a Delaware corporation with its principal place of business in California, which also provides cloud-based services. Plaintiff advised OneLogin of the non-solicitation agreement, and subsequently alleged that OneLogin induced and materially benefited from Biggs' breach of the agreement.

 

Analysis: A state court may exercise personal jurisdiction under the 14^th amendment on an out-of-state defendant if the defendant had “minimum contacts” with the forum sufficient to put the defendant on notice that he might be sued in the forum in the future. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). A court may exercise personal jurisdiction over a defendant based on general or specific jurisidiction.

 

The plaintiff has the burden to show that the court could exercise general jurisdiction over the defendant by demonstrating that the defendant’s contacts with the state are “continuous and systematic” making the defendant essentially at home in the forum state. Daimler AG v. Bauman, 571 U.S. 117, 127 (2014).

 

Three factors are considered to determine specific personal jurisdiction over a defendant (where the present lawsuit arises out of the defendant’s prior contacts with Maryland): “(1) the extent to which the defendant has purposefully availed itself of the privilege of conducting activities within the State; (2) whether the plaintiff’s claims [arose] out of those activities; and (3) whether the exercise of personal jurisdiction is constitutionally reasonable.” Universal Leather LLC v. Koro AR SA, 773 F.3d 553, 559 (4^th Cir. 2014). 

 

The Court found that it lacked general jurisdiction over the Defendant. The Defendant was neither organized under the laws of Maryland, nor was its principal place of business in Maryland. 

 

As for specific jurisdiction, the Court found that the Defendant only conducted a nominal amount of business in Maryland – one percent of its revenue and one to two percent of its total solicitation was derived from Maryland. Moreover, the Court found that none of these contacts were specifically connected to the allegations of breach of contract or tortious interference made by the Plaintiff.

 

The alternative theory offered by the Plaintiff was that Defendant had “encouraged,” “actively and wrongfully induced,” and “accepted the benefits of Biggs’ breach” of the agreement at issue in the case. However, the Court found that these general allegations lacked sufficient specificity as to when the solicitation happened, which employees were solicited, and where those employees were located.

 

Moreover, the Court denied the Plaintiff’s motion for jurisdictional discovery, as the Court concluded that the information sought by the Plaintiff would not provide additional facts to establish personal jurisdiction over the Defendant.

 

As a result, the Court concluded it lacked jurisdiction over the Defendant and dismissed the Plaintiff’s action against the Defendant.

 

Full opinion available in PDF.

Neitzey v. Allen (Cir. Ct. Mont. Cnty)

Filed: August 31, 2017

Opinion by: Judge Michael D. Mason

Holding:  A covenant not to solicit clients that is overbroad on its face will be interpreted based on the wording of the agreement and is not partially enforceable if the employer voluntarily commits to limit its right of enforcement to only those remedies necessary to protect the employer’s legitimate business where such partial enforcement is not achievable based on the wording of the agreement. 

Facts:  A former employee sued his former employer to have certain restrictive covenants stricken from his employment agreement as overbroad.  At issue was a non-solicitation provisions that restricted the former employee from soliciting and accepting business from any customer of the former employer.  The term “customer” was not defined in the employment agreement and was not limited to customers of the former employer during the former employee’s employment by the former employer.  The former employer offered to restrict the meaning of “customer” to those with whom the former employee had personal contact while employed by the former employer. 

Analysis:  The court held that the former employer’s offer to limit enforcement of the non-solicitation provision could not save the provision from being declared unenforceable.  After a lengthy discussion of Holloway v. Faw, Casson & Co., 78 Md. App. 205 (1989) (“Holloway”), Holloway v. Faw, Casson & Co., 319 Md. 324 (1990), and Fowler v. Printers II, Inc., 89 Md. App. 448 (1991), the court agreed with the Court of Appeals in Holloway, that the enforceability of the non-solicitation provision at issue turned on its internal severability.  The non-solicitation provision at issue was not internally severable because, without some measure of damages on a client-by-client basis similar to the liquidated damages clause in Holloway*, there was no way to establish separate damages for clients with whom the former employee had personal contact and the other clients of the former employer.  Therefore, the non-solicitation provision could not be enforced even if the court limited enforcement in the manner proposed by the former employer.

* In Holloway, the non-solicitation provision was accompanied by a liquidated damages provision equal to 100% of the prior year’s fee for any clients solicited in violation of the non-solicitation provision.

Full text of opinion available here.

Cowan Systems, LLC v. Jeffrey Shane Ferguson (Maryland U.S.D.C.)

Filed:  August 3, 2012
Opinion by Judge Ellen Lipton Hollander

Held:  State law claims related to an employment agreement's confidentiality and non-soliciation provisions in the transportation industry are not preempted by the Interstate Commerce Commission Termination Act ("ICCTA") because the Act's preemption provision was created to ensure that the States would not undo federal deregulation with regulation of their own.

Facts:  Cowan Systems, LLC ("Employer"), a broker in the transportation industry, filed suit against Jeffrey Shane Ferguson ("Employee"), a former employee, for breach of his employment agreement, and Lipsey Logistics Worldwide, LLC ("Competitor"), also a broker in the industry, for tortious interference with contract, tortious interference with prospective economic advantage, violation of the Maryland Uniform Trade Secrets Act, and civil conspiracy.

Employee entered into an employment agreement with Employer that contained confidentiality and non-solicitation provisions prohibiting him from from ever disclosing Employer's business secrets and from soliciting Employer's customers for one year post-termination.  Employee resigned from Employer and began working for Competitor, a direct competitor of Employer's, the next day.  Employer alleges that Employee violated his employment agreement by communicating and soliciting Employer's customers on Competitor's behalf before and after his tenure with the company.  Employer also claims that both Employee and Competitor are causing an immediate threat to Employer's business.

Competitor filed a motion to dismiss based on the premise that state law claims are preempted the ICCTA which provides in part, "a State...may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier...or any...broker...with respect to the transportation of property."  Employer opposed the motion.

Analysis:  The USDC for Maryland denied Competitor's motion following the ruling in Aloha Airlines, Inc. v. Mesa Air Group, Inc., No. 07-00007, 2007 WL 842064 (D. Haw. Mar. 19, 2007), which found that an intentional tort claim was not preempted by the Airline Deregulation Act ("ADA"), a federal law in which the Supreme Court has recognized as having a preemption provision with identical scope as that of the preemption provision of the ICCTA.  The Aloha Court found that courts have upheld state tort claims against entities subject to the ADA when those claims do not contravene the law's purpose to promote competition in that industry.  That Court concluded that to find otherwise would indeed undermine the purpose of the ADA which was to ensure the components of the transportation industry relied upon competitive market forces.  It found that the ADA's preemption provision was to prevent the States from superceding federal deregulation with its own regulation.

The Court denied Competitor's motion to dismiss finding that the same principles in the ADA apply to the ICCTA preemption provisions.  The purpose of the ICCTA preemption provision was to promote competition within the transportation industry and to free it from state laws and regulations that could interfere with interstate commerce.  The fact that Employer's claims against Competitor pertained to pricing information "should not serve to insulate Competitor from liability" because it engages in brokerage services.  Congress never intended to shield individual bad actors from "thwarting competitive enterprise."

The full opinion is available in PDF.

TEKsystems, Inc. v. Bolton (Maryland U.S.D.C.)

Filed: February 4, 2010
Opinion by Judge Richard D. Bennett

Held: A covenant not to compete is enforceable even where the competing former employee does not solicit his former employer's clients or use its confidential information if the scope of the restrictive covenant is limited to reasonable temporal and geographical limits, the employer is protecting legitimate business interests with the covenant, the employee has unique and specialized skills, there is no undue hardship on the employee to comply with the restriction and the public interest is served by enforcing the restrictive covenant; and the court held that it would extend the duration of the restrictive covenant for so long as the employee was in breach of it.

Facts: In 1999, the Defendant signed an employment agreement with Plaintiff, containing (among other provisions) a covenant not to compete against Plaintiff for 18 months after his employment terminated and within a 50-mile radius of his former office. Substantively, the covenant prohibited Defendant from engaging “in the business of recruiting or providing on a temporary or permanent basis technical service personnel, industrial personnel, or office support personnel” within these temporal and geographic limitations.

A separate covenant also prohibited Defendant from soliciting or competing for any persons or entities who were clients or customers of Plaintiff within the two years prior to the termination of the Defendant's employment. In 2008, the Defendant resigned from his employment with Plaintiff and, immediately thereafter, accepted a similar position in the IT-staffing business with one of Plaintiff's competitors and within the temporal and geographic limits of the covenant not to compete. None of the IT-staffing placements Defendant made for his new employer (Plaintiff's competitor) involved solicitation of or competition for Plaintiff's clients or customers. Plaintiff admitted at deposition that it was unaware of any such solicitation by Defendant.

Analysis: Under Maryland law, covenants not to compete may be enforced only against those employee who provide unique services or to prevent the future misuse of trade secrets, routes or lists of clients or solicitation of customers. Such covenants will be enforced if the restraint is confined within limits which are no wider as to area and duration than are reasonable for the protection of the business and do not impose undue hardship on the employee or disregard the interests of the public.

In reaching its decision, the court analyzed and concluded on the following:

(1) the 18-month temporal and 50 mile geographic scope of the covenant is facially reasonable and comports with similar limitation upheld by Maryland courts;

(2) the Plaintiff was protecting its legitimate business interests by enforcing the covenant because the employee was critical to the growth in revenue for the region, was key to building the personal relationships with clients in the area as required for the staffing industry, and had access to high level client contacts and confidential information;

(3) the employee at issue possessed unique and specialized skills because of his training and success in the banking industry in New York and had the most knowledge of each customer in the area;

(4) the employee would not suffer undue hardship by enforcing a covenant with the temporal and geographical restraints in this case because the employee was able to conduct business everywhere else in the world except for the area within 50 miles of New York City; and

(5) the public interest is protected by enforcing reasonable restrictive covenants against former employees of high technology and high-growth business.

In reaching its decision with respect to each factor, the court relied on Becker v. Bailey, 268 MD. 93, 299 A.2d 835 (1973); Ruhl v. F.A. Bartlett Tree Expert Co., 245 Md. 118, 225 A.2d 288 (1967); TEKsystems, Inc. v. Spotswood, 05-CV-1532-RDB, Memorandum Opinion (D. Md. June 28 2005); Intelus Corp. v. Barton, 7 F. Supp. 2d 635 (D. Md. 1998) and PADCO Advisors, Inc. v. Omdahl, 179 F. Supp. 2d 600 (D. Md. 2002).

The court granted summary judgment for Plaintiff, finding that Defendant breached the covenant by competing against Plaintiff in the IT-staffing business within the agreed temporal and geographic limits. The Plaintiff, however, would not be awarded monetary relief exceeding nominal damages because there was no proof that the Defendant solicited Plaintiff's customers or clients.

Injunctive relief against future violations of the covenant was warranted. The court held that the Plaintiff was entitled to an equitable extension of the entire 18-month period, running from the date of the court's opinion, because Defendant began violating the non-compete provision almost immediately after the termination of his employment with Plaintiff.

Practice Pointer: Plaintiff's affidavit, alleging that Defendant did, in fact, solicit Plaintiff's clients while working for his new employer, would not be considered on summary judgment. The affidavit contradicted Plaintiff's prior deposition testimony, and there was no showing that the facts asserted in the affidavit were unknown or inaccessible at the time of the deposition. Given this ruling, litigators are cautioned to prepare a Rule 30(b)(6) witness thoroughly. A party may not, on summary judgment, contradict its own Rule 30(b)(6) deposition testimony with evidence that was reasonably accessible at the time of the deposition.

The full opinion is available in PDF.