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Visual Mining, Inc. v. Ziegler

United States District Court, D. Maryland, Southern Division

February 21, 2014

VISUAL MINING, INC., Plaintiff/Counter-Defendant,
v.
TRISTAN ZIEGLER, Defendant/Counter-Plaintiff.

MEMORANDUM OPINION

PAUL W. GRIMM, District Judge.

This Memorandum Opinion addresses eight of the eleven motions currently pending, which are listed below. An overview of this case is necessary to put these numerous motions into context. Plaintiff/Counter-Defendant Visual Mining, Inc. ("VM") filed a Complaint for Declaratory Judgment and Damages against Defendant/Counter-Plaintiff Tristan Ziegler in the Circuit Court of Montgomery County, ECF No. 2, and Ziegler removed to this Court, ECF No. 1. VM is a "technology company, " and Ziegler was VM's CEO until, according to VM, he was "involuntarily terminated for cause" when VM's Board of Directors learned that he "had engaged in a pattern of self-dealing over several years that had resulted in the payment to himself of substantial Visual Mining Funds that had not been authorized by the Board and that he was not entitled to receive." Compl. ¶¶ 2-4. VM alleges that Ziegler "engage[d] in a pattern of self-dealing that resulted in his receipt of hundreds of thousands of dollars in bonuses, commissions, meal reimbursements and other payments to which he was not entitled and has not earned, " and "unilaterally, and without proper authority, amend[ed] the Visual Mining Employee Handbook to allow for 800 hours of vacation accrual as part of a scheme to collect many months of additional compensation to which he was not otherwise entitled, upon his ultimate departure from the Company." Id. ¶ 1. VM seeks to recover all "compensation that Ziegler wrongfully paid himself, " as well as a declaration that it "does not owe Ziegler any additional bonus payments" or "compensation." Id. VM's Complaint includes counts for fraudulent misrepresentation, fraudulent concealment, constructive fraud, and negligent misrepresentation. Id. ¶¶ 18-64.

Ziegler filed an Answer, ECF No. 13, and a Counterclaim, ECF No. 14, on November 12, 2012, naming VM, Sigma Partners III, L.P., Sigma Associates III, L.P., Sigma Investors III, L.P., and Sigma Management III, L.P. as Counter-Defendants. The new parties (collectively, "Sigma") are "venture capital investment funds" that "dominate[] and control[]" VM. Countercl. ¶ 3. Ziegler attaches his employment agreement ("Agreement") to his Counterclaim. Agr., Countercl. Ex. A, ECF No. 14-1. According to Ziegler, the Agreement provided for him to receive "certain monetary and non-monetary compensation, as well as severance and other benefits" if VM terminated him for any reason other than cause. Countercl. ¶¶ 13-14. Ziegler also claims that VM awarded him stock options, which were to be his unless he were "validly terminated for misconduct'" such as "fraud, embezzlement or dishonesty" or "other intentional misconduct... adversely affecting the business or affairs of [VM] (or any Parent or Subsidiary) in a material manner." Id. ¶¶ 18-22. Ziegler also alleges that he earned and received bonuses through a VM bonus plan, id. ¶ 29, and that VM had an agreement with him (the "Transaction Bonus Plan") for him to receive a percentage of the proceeds from any sale of VM, id. ¶ 31. Ziegler claims that VM accused him of stealing funds so that he would not receive a bonus when VM was sold, severance, other rights under the Agreement, other bonuses, and stock options. Id. ¶ 41. Ziegler counterclaims for breach of contract (Count I), anticipatory breach of contract (Count II), indemnification (Count VI), and violation of Maryland Wage Payment and Collection Act (Count VII) as to VM only; tortious interference with contract or with prospective economic relations (Counts III and IV) as to Sigma only; and declaratory judgment and injunctive relief (Count V) as to VM and Sigma.

Almost eleven months later, Ziegler moved to dismiss his counterclaims against Sigma (III, IV, and V)[1] pursuant to Fed.R.Civ.P. 41(a)(2). Ziegler's Mot. 1, ECF No. 68. Thereafter, over the course of just over four months, the parties filed ten additional motions, such that now pending before this Court are:

• Ziegler's Motion for Voluntary Dismissal of Counterclaims Against Sigma Parties and Memorandum in Support, ECF Nos. 68 and 68-1; to which Sigma has filed an Opposition, ECF No. 74; and Ziegler has filed a Reply, ECF No. 84;
• Sigma's Motion for Leave to File a Surreply to Ziegler's Motion for Voluntary Dismissal, ECF No. 87; to which Ziegler has filed an Opposition, ECF No. 92. Sigma has not filed a Reply, and the time for doing so has passed, see Loc. R. 105.2.a;
• Ziegler's Motion to Seal Exhibits B, I, L, M, N, P, and R filed with his Reply, ECF No. 86; to which Sigma has not filed an Opposition, and the time for doing so has passed, see Loc. R. 105.2.a;
• VM's Motion to Strike Ziegler's Supplemental Expert Report and Memorandum in Support, ECF Nos. 71 & 72; to which Ziegler has filed an Opposition, ECF No. 82; and VM has filed a Reply, ECF No. 88;
• VM's Motion for Partial Summary Judgment and Memorandum in Support, ECF Nos. 95 & 96; to which Ziegler has filed an Opposition and Cross-Motion for Summary Judgment and Memorandum in Support, ECF Nos. 99 & 100;[2] VM has filed a Reply and Opposition, ECF No. 105; and Ziegler has filed a Reply, ECF No. 113;
• Ziegler's Motion for Leave to Exceed Page Limit in his Memorandum in Support of his Opposition and Cross-Motion for Summary Judgment, ECF No. 110, for which VM's response is due February 24, 2014;
• VM's Motion for Leave to File an Oversized Memorandum for its Reply and Opposition on summary judgment, ECF No. 104, to which Ziegler has not filed a response, and the time for doing so has passed, see Loc. R. 105.2.a;
• Ziegler's Motion to Seal Exhibits 4, 5, 6, 8, 9, 10, 15, 16, 17, 18, 21, 25, 26, 27, 28, 29, 30, 37, 38, 39, 40, 45, 46, 48, 49, 50, 51, 52, and 56 filed in support of his Opposition and Cross-Motion for Summary Judgment, ECF No. 102, to which VM has not filed a response, and the time for doing so has passed, see Loc. R. 105.2.a;
• Ziegler's Motion to Seal Exhibits 2, 3, 4, 5, 6, and 7 filed in support of his Reply on summary judgment, ECF No. 116, for which VM's response is due February 27, 2014;
• VM's Motion to Seal Exhibits N, O and S, as well as Exhibits 2, 4 and 5 to the Declaration of Hendrik Teunis, all filed in support of its Reply and Opposition on summary judgment, ECF No. 107, to which Ziegler has not filed a response, ...

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