United States District Court, D. Maryland
Allegis Group, Inc., et al.
Justin Jordan, et al.
MEMORANDUM TO COUNSEL RE:
before the Court are Plaintiffs', Allegis Group, Inc.
(“Allegis”), Aerotek, Inc.
(“Aerotek”), and Teksystems, Inc.
(“Teksystems”), Third Motion for Summary Judgment
(ECF No. 109) and Defendants Justin Jordan, Daniel Curran,
and Michael Nicholas's Motion for Leave to File Surreply (ECF
No. 114). The Motions are ripe for disposition, and the Court
finds no hearing necessary. See Local Rule 105.6
(D.Md. 2016). For the reasons stated below, the Court will
deny the Motions without prejudice and vacate the Court's
previous Order (ECF No. 108) in part.
brought claims for breach of contract, recession, and unjust
enrichment against Defendants. (ECF No. 26). On December 23,
2013, Plaintiffs filed a Motion for Partial Summary Judgment
on their breach of contract claim regarding the
Agreements. (ECF No. 75). On June 10, 2014, the Court
granted Plaintiff's Motion, finding that Defendants
breached their IIP Award Agreements. (ECF No. 85).
29, 2015, Plaintiffs filed a Second Motion for Summary
Judgment, seeking all IIP payments they made to Defendants.
(ECF No. 102). On March 18, 2016, the Court issued a
Memorandum Opinion (ECF No. 107) (“March 18
Opinion”), with three legal conclusions that are of
particular import here. First, the Court concluded that
Defendants' breach of their IIP Agreements was material.
Second, the Court concluded that Plaintiffs did not make a
required showing of irreparable injury or impossibility of
determining damages to receive restitution. Third, it
concluded that Plaintiffs were improperly attempting to claim
damages for breach of the IIP Award Agreements while also
attempting to request rescission.
filed the present Motion on April 18, 2016. (ECF No. 109). On
May 2, 2016, Defendants filed a Response to Plaintiff's
Motion that included a Motion for Reconsideration (ECF No.
110). Plaintiffs filed a Reply on May 11, 2016 (ECF No. 113).
Defendants filed a Motion for Leave to File Surreply on May
18, 2016 (ECF No. 114) and Plaintiffs filed a Response on May
20, 2016 (ECF No. 115).
of the Court's March 18 Opinion and Order
their Motion for Summary Judgment, Plaintiffs ask the Court
to reconsider whether, in its March 18 Opinion, it properly
concluded that Plaintiffs did not have a right to
restitution. Because the Court's March 18 Opinion
concerns an interlocutory order, Federal Rule of Civil
Procedure 54(b) governs here. While Plaintiffs do not
formally bring a motion to alter or amend judgment, the Court
may nonetheless reconsider this issue under Rule 54(b).
Compare Rule 54(b) (“[A]ny order . . . that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties . . . may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights
and liabilities.” (emphasis added)) with Rule
60(b) (On motion and just terms, the court may
relieve a party or its legal representative from a final
judgment, order, or proceeding . . .” (emphasis
added)); cf. Fayetteville Inv'rs v. Commercial
Builders, Inc., 936 F.2d 1462, 1472 (4th Cir. 1991)
(holding that under Rule 54(b), courts may review its own
interlocutory orders sua sponte).
not binding, courts look to the Rule 59(e) and 60(b)
standards when reconsidering an interlocutory order under
Public policy favors an end to litigation and recognizes that
efficient operation requires the avoidance of re-arguing
questions that have already been decided. Most courts have
adhered to a fairly narrow set of grounds on which to
reconsider their interlocutory orders and opinions. Courts
will reconsider an interlocutory order in the following
situations: (1) there has been an intervening change in
controlling law; (2) there is additional evidence that was
not previously available; or (3) the prior decision was based
on clear error or would work manifest injustice.
Reyazuddin v. Montgomery Cty., Md., No. DKC-11-0951,
2012 WL 642838, at *2-3 (D.Md. Feb. 27, 2012) (citations and
internal quotation marks omitted).
the Court concludes it clearly erred as a matter of law in
its March 18 Opinion for two reasons. First, showing
irreparable injury or impossibility of determining damages is
not always required to receive restitution. Second,
Plaintiffs were not improperly seeking restitution in
addition to enforcement of a provision in the Agreements
requiring Defendants to refund all IIP payments to Plaintiffs
(“Repayment Provision”). The Court will address
these two errors in turn.
in its March 18 Opinion the Court relied on Miller v.
United States Foodservice, Inc., 361 F.Supp.2d 470, 485
(D.Md. 2005) to assert that rescission is only appropriate
when there is an irreparable injury, damages would be
difficult to determine, or damages would be inadequate. (Mem.
Op. at 6, ECF No. 107). In Miller and other cases
imposing such prerequisites, however, the parties were
relying on a theory of unjust enrichment to recover
restitution. See, e.g., Miller, 361
F.Supp.2d at 484 (seeking to recover compensation from
employee based on theory of unjust enrichment or mutual
mistake); Mass Transit Admin. v. Granite Const. Co.,
471 A.2d 1121, 1126 (Md. 1984) (seeking restitution for value
of services under theory of unjust enrichment).
on Mogavero v. Silverstein, 790 A.2d 43, 52
(Md.Ct.Spec.App. 2002), this Court opined that restitution
“is referred to as an action for unjust
enrichment.” (Mem. Op. at 5) (quoting
Mogavero, A.2d at 52) (internal quotation marks
omitted). Mogavero, however, bases this measure of
recovery on a theory of quasi-contract. Mogavero,
790 A.2d at 52. Here, by contrast, Plaintiffs do not bring
their claims under a quasi-contract theory because there are
express agreements-the IIP Award Agreements-between them and
the Defendants. Nor do they seek restitution under a theory
of unjust enrichment. Rather, they contend Defendants
materially breached the IIP Award Agreements. Because
Defendants do not rely on theories of quasi-contract or
unjust enrichment, Miller's prerequisites do not
apply. Accordingly, the Court concludes it erred by requiring
Plaintiffs to meet one of these prerequisites in its March 18
the Court also opined that a contracting party displeased
with the other's performance may either reaffirm the
contract and claim damages for its breach, or repudiate the
contract and request rescission, but not both. (Mem. Op. at
7). The Court then concluded that Plaintiffs were attempting
to do both by seeking rescission “while
simultaneously” seeking return of all IIP payments
under the Repayment Provision. (Id. at 7-8). Both
rescission and enforcement of the Repayment Provision,
however, would lead to an identical outcome: full recovery of
all IIP payments. Plaintiffs, therefore, were not seeking
both rescission and enforcement of the Repayment Provision
simultaneously; instead, they were arguing two
separate bases of recovery that also led to the same
outcome. Thus, the Court concludes it erred by