United States District Court, D. Maryland, Southern Division
W. Grimm United States District Judge.
a four-day bench trial at which I found that Plaintiff
CytImmune Sciences, Inc. (“CytImmune”) did not
materially breach the Assignment of Inventions,
Non-Disclosure, Non-Solicitation and Non-Competition
Agreement (“Agreement”) that Defendant Giulio
Paciotti entered into while working for the company,
CytImmune renewed its Motion for a Preliminary Injunction.
CytImmune sought to enjoin Dr. Paciotti from working for
Senior Scientific, LLC (“Senior Scientific”)
during the pendency of this litigation. Because CytImmune
failed to show that it is likely to succeed on the merits of
its claim to enforce the Agreement and because of the
hardship an injunction would impose upon Dr. Paciotti, I
denied CytImmune's Motion. This Memorandum Opinion
memorializes my rulings from trial.
Court previously outlined the essential facts of the case:
On February 17, 2016, Giulio Paciotti, Ph.D. ended
approximately twenty-eight years of employment at CytImmune
Sciences, Inc., (“CytImmune”) where he most
recently worked as Chief Science Officer. There, he focused
on nano-technology, specifically a theragnostic called the
“Aurimmune Platform, ” which employed gold to
diagnose and treat cancerous solid tumors. He began
employment as the Vice President of Research and Development
at Senior Scientific LLC (“Senior Scientific”)
two days later. His work continues to target cancerous solid
tumors but now employs iron oxide in lieu of gold and
focuses, at least for now, on diagnosing, not treating,
cancerous tumours [sic]. Within a month, CytImmune filed suit
against Dr. Paciotti in the Circuit Court for Montgomery
County, claiming that he breached the confidential
information and restrictive covenants of the Assignment of
Inventions, Non-disclosure, Non-solicitation and
Non-competition Agreement it had entered into with Dr.
Paciotti, as well as breached the duty of loyalty.
Mem. Op. & Order 1-2, ECF No. 55.
Paciotti removed the case to this Court, ECF No. 1, where
CytImmune renewed its Motion for a Preliminary Injunction
made previously in state court. ECF No. 30. I denied without
prejudice CytImmune's Motion subject to resubmission
following targeted discovery and a bench trial on the narrow
issue of whether CytImmune materially breached the Agreement
by failing to pay Dr. Paciotti his full salary, thereby
vitiating the Agreement. Mem. Op. & Order 13.
the bench trial, which took place between August 23 and 26,
2016, I found that no material breach occurred because
the parties altered the Agreement through a course of conduct
by agreeing either to defer unpaid portions of their salary
until CytImmune regained surer financial footing or to forgo
the unpaid salary. Dr. Paciotti argued that § 502(f) of
the Maryland Wage Payment Law, Md. Code Ann., Lab. &
Empl. §§ 3-501 to 3-509, and CytImmune's
corporate bylaws voided any such agreement. Def.'s Mem.
28-30, ECF No. 69; Def.'s Reply 6-7, ECF No. 77. These
arguments were unavailing. Because Dr. Paciotti has not yet
brought a claim under the Maryland Wage Payment and
Collection Law or for breach of contract, I am not called
upon to determine the precise parameters of the modified
contract. Whether CytImmune's senior managers, including
Dr. Paciotti, agreed to defer or forgo unpaid salary, the
record clearly shows that Dr. Paciotti at least assented to
payment of accrued salary at some indeterminate future date.
See, e.g., Email from Attorney Maury S. Epner, on
behalf of Dr. Paciotti, to Roger A. Hayden, Attorney for
Presidential Bank (Sept. 16, 2013), Jt. Ex. 7 (“Dr.
Paciotti is currently not receiving any salary or other
workplace compensation. He has been accruing salary since
March 1, 2013 and does not know when, or if, he will
ever be paid this accrued sum.” (emphasis
added)). Therefore, no material breach occurred.
light of this conclusion, CytImmune orally renewed its Motion
for a Preliminary Injunction. I denied the motion, finding
that CytImmune had not demonstrated a likelihood of success
on the merits of its contract claim because the Agreement
evinces a purpose of stifling competition-which is not a
legally protected interest and is contrary to public
policy-and because enforcing the Agreement would impose an
undue hardship on Dr. Paciotti. This Memorandum Opinion
memorializes the findings of fact and conclusions of law I
reached during the bench trial.
STANDARD OF REVIEW
purpose of a preliminary injunction is to “protect the
status quo and to prevent irreparable harm during the
pendency of a lawsuit, ultimately to preserve the court's
ability to render a meaningful judgment on the merits.”
In re Microsoft Corp. Antitrust Litig., 333 F.3d
517, 525 (4th Cir. 2003). As a preliminary injunction is
“an extraordinary remedy . . . [it] may only be
rewarded upon a clear showing that the plaintiff is entitled
to such relief.” Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008). To obtain a preliminary
injunction, the plaintiff must “establish that  he
is likely to succeed on the merits,  he is likely to
suffer irreparable harm in the absence of preliminary relief,
 the balance of equities tips in his favor, and  an
injunction is in the public interest.” Id. at
20; see also Dewhurst v. Century Aluminum Co., 649
F.3d 287, 290 (4th Cir. 2011).
to 2009, the Fourth Circuit followed a “balance of
hardship” approach to preliminary injunctions,
considering all four Winter elements, but
“allow[ing] each requirement to be conditionally
redefined” in a “flexible interplay”
depending on how the other requirements were met. Real
Truth About Obama, Inc. v. Fed. Election Comm'n, 575
F.3d 342, 347 (4th Cir. 2009) (citing Blackwelder
Furniture Co. of Statesville v. Seilig Mfg. Co., 550
F.2d 189, 196 (4th Cir. 1977)). Real Truth
invalidated this approach, however, and it “may no
longer be applied” in the Fourth Circuit. Id.
The plaintiff must therefore satisfy each requirement as
Likelihood of ...