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MaCsherry v. Sparrows Point, LLC

United States District Court, D. Maryland

August 3, 2017

JOHN H. MACSHERRY, JR., Plaintiff,
v.
SPARROWS POINT, LLC, et al. Defendants.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge.

         John Macsherry, Jr., plaintiff, filed suit against defendants Sparrows Point, LLC (“SPLLC”); Commercial Development Company, Inc. (“CDC”); and Michael Roberts (“Roberts”), to recover a commission of $825, 000 allegedly owed to him in connection with the sale of commercial property for $110, 000, 000. See ECF 2.[1] In his Amended Complaint (ECF 26), plaintiff seeks relief from all defendants under the Maryland Wage Payment and Collection Law (“MWPCL”), Maryland Code (2016 Repl. Vol.), §§ 3-501 et seq. of the Labor and Employment Article (“L.E.”). As to SPLLC and CDC, he also asserts claims for breach of contract (Count II); promissory estoppel/detrimental reliance (Count III); and quantum meruit/unjust enrichment (Count IV). See ECF 26.[2]

         Defendants have moved for summary judgment (ECF 59), supported by a memorandum of law (ECF 59-1) (collectively, “Motion”) and many exhibits. See ECF 59-3 through ECF 59-19. Macsherry has filed a combined opposition and cross-motion for partial summary judgment (ECF 64), which is supported by a memorandum of law (ECF 64-1) (collectively, “Cross Motion”) and numerous exhibits. See ECF 64-3 through ECF 64-20. In his Cross Motion, Macsherry seeks summary judgment only as to his claim that Roberts was an “employer” as defined by the MWPCL. See ECF 64. In a combined reply, defendants responded to Macsherry's opposition and opposed his Cross Motion (ECF 67), with exhibits. See ECF 67-2 through ECF 67-5. Macsherry replied (ECF 70), supported by two exhibits. ECF 70-1; ECF 70-2.

         The Motion and the Cross Motion are fully briefed and no hearing is necessary to resolve them. See Local Rule 105.6. For the reasons that follow, I shall deny both motions.

         Table of Contents

         I. Factual Background ................................................................................................................ 3

         II. Standard of Review ............................................................................................................... 15

         III. Choice of Law .................................................................................................................... 17

         A. Count I ............................................................................................................................ 18

         B. Counts II-IV ................................................................................................................... 19

         1. Maryland Law - First Restatement Approach ............................................................ 19

         2. Missouri Law - Second Restatement Approach ......................................................... 23

         3. Maryland Law - Renvoi ............................................................................................. 30

         IV. Discussion .......................................................................................................................... 33

         A. Breach of Contract (Count II) ........................................................................................ 33

         1. Maryland Contract Law .............................................................................................. 33

         2. Analysis ...................................................................................................................... 40

         3. Statute of Frauds ......................................................................................................... 46

         B. Promissory Estoppel (Count III) .................................................................................... 48

         C. Quantum Meruit (Count IV) .......................................................................................... 51

         1. Unjust Enrichment ...................................................................................................... 53

         2. Implied-in-Fact Contract ............................................................................................ 56

         D. MWPCL ......................................................................................................................... 58

         1. Defendants' Motion - MWPCL Claim ...................................................................... 61

         2. Defendants' Motion - Bona Fide Dispute .................................................................. 62

         3. Plaintiff's Cross-Motion ............................................................................................. 64

         V. Conclusion ............................................................................................................................ 72

         I. Factual Background

         CDC is a real estate acquisition and development firm with its headquarters in St. Louis, Missouri. ECF 59-3 (Roberts Affidavit), ¶ 3. CDC and an affiliate company, Environmental Liability Transfer, Inc. (“ELT”), “specialize in acquiring, remediating, and repositioning environmentally challenged brownfield sites.” Id. ¶ 4.[3] SPLLC was formed as a single purpose Missouri limited liability company to “acquire 3, 100 acres of real property located at the Sparrows Point peninsula in Baltimore County, formerly the site of the industrial complex owned by Bethlehem Steel . . . .” Id. ¶ 6 (the “Property”). Roberts and his brother, Tom Roberts (“T. Roberts”), are the co-owners, co-managers, and authorized representatives of CDC, ELT, and SPLLC. Id. ¶ 7.

         Macsherry resides in Maryland. ECF 64-3 (Macsherry Affidavit), ¶ 2.[4] He became a licensed real estate “associate broker” in 1983. ECF 59-6 (Macsherry Deposition) at 17.[5] In 2012, he was “laid off” as the head of Duke Realty's Baltimore office, which closed that year. ECF 59-6 at 37-38. Macsherry subsequently did “some consulting” for KLNB, another commercial real estate firm. Id. at 39. In particular, he worked on a project for Lafarge concerning Lafarge's lease at Sparrows Point. Id.

         Around 2012, Dan Gundersen, the Director of Economic Development for Baltimore County, approached Macsherry about serving on the County's “Sparrows Point Partnership” (“Partnership”). ECF 64-4 (Macsherry Deposition) at 44-45. The Partnership was a task force established by Baltimore County Executive Kevin Kamenetz to “look at what potentials could be at Sparrows Point and try to come up with a proactive approach of . . . what could happen with the property from an economic development perspective.” Id. at 44. Kamenetz subsequently appointed Macsherry to the Partnership. Id. at 45.

         In September 2012, SPLLC and entities formed by “Hilco Global” purchased the Property out of the bankruptcy of “RG Steel.” ECF 59-3, ¶ 8. Roberts avers, id.: “SPLLC acquired the real estate and assumed certain environmental liabilities, while Hilco generally acquired title to all improvements, including buildings, equipment, fixtures, and raw materials.” Roberts maintains that he took primary responsibility for CDC's work on the Property. Id. ¶ 10. T. Roberts testified at his deposition that the Property was the largest single parcel that CDC had ever acquired, by a factor of five. ECF 64-8 (T. Roberts Deposition) at 46.

         As indicated, the Property was the site of the industrial complex previously owned by Bethlehem Steel. ECF 59-3, ¶ 6; ECF 64-4 (Macsherry Deposition) at 41. The Property consists of 3, 100 acres and includes buildings, equipment relating to the manufacture of steel, plants still containing equipment, administration buildings, security buildings, rail, and a port. ECF 64-4 at 41-43.

         Shortly after SPLLC acquired the Property, Roberts authorized CDC's Vice President of Asset Management, Robert Schoelch, “to search for a ‘boots on the ground' employee to represent SPLLC's interest locally”, because of the Property's “size and political dynamics . . . and the distance between Baltimore and St. Louis.” ECF 59-3 (Roberts Affidavit), ¶¶ 6, 12; see also ECF 59-5 (Roberts Deposition) at 85-86 (explaining that Schoelch had recommended that Roberts hire “a local at the site to field calls and to work with the different community people, [and] regulators”). Roberts authorized Schoelch to “interview potential employees, discuss potential terms”, and then report back. ECF 59-3, ¶ 14. But, Roberts asserts: “[N]o person other than me had the authority to hire an employee for the ‘boots on the ground' position, or to approve that employee's terms of employment.” ECF 59-3, ¶ 14.

         During the same time frame, Macsherry learned of the acquisition of the Property and asked Gundersen for the name of a contact concerning the Property. ECF 59-6 at 45-46. Gundersen provided the name of Randall Jostes, the president of ELT. Id. at 46. Macsherry emailed Jostes on September 20, 2012, to discuss working for ELT and CDC as “the hands on local person . . . in Baltimore.” ECF 59-7 (email to Jostes); see also ECF 59-6 at 46-48. Macsherry also stated, ECF 59-7: “I am a Baltimore person who has been in the real estate industry for close to 30 years. I have excellent experience in master planning, development, Brownfield experience (can't say I am an expert) and have excellent contacts in the community. My background is very broad with hands on experience.” Macsherry added, id.: “My knowledge of the Port, Sparrows Point, environmental matters, master planning, land development, building development and the relationships I have both in the government and business community should be of value to your company.”

         Upon Jostes's receipt of Macsherry's email on September 20, 2012, Jostes forwarded it to Roberts, T. Roberts, Schoelch, and Mark Hinds. ECF 59-7.[6] Jostes stated that Macsherry “may be a good resource to consider for ongoing efforts at Sparrow. I'll leave it to Rob and Mark to get back to this person or let it go.” Id.

         During October, November, and December 2012, Macsherry interviewed with representatives of CDC and SPLLC, including “informal meetings, dinners, lunches, and telephone calls . . . .” ECF 59-8 (Macsherry Answers to First Set of Interrogatories), Answer to Interrogatory No. 1, at 4. The individuals with whom he met included Roberts, T. Roberts, Schoelch, Hinds, and Becky Lydon, CDC's chief operating officer. Id. at 4-5.

         Macsherry claims that on November 5, 2012, Schoelch conducted a telephone interview with Macsherry. Plaintiff informed Schoelch that he was seeking a job “to market Sparrows Point and to redevelop it.” ECF 59-6 at 56. Thereafter, he and Schoelch had several other telephone conversations, some of which included Roberts. Id. at 57. Macsherry and Schoelch also had dinner at a restaurant in Baltimore on November 13, 2012. Id. at 58. According to Macsherry, they “discussed Sparrows Point . . ., what was going on there, what the challenges were, what they were looking for, whether they needed somebody to be a point person that's on the street . . . or whether they were going to try and do it themselves.” ECF 59-6 at 65-66. Macsherry also spoke about his background. Id. at 66. The issue of compensation was not discussed, however. Id. at 69.[7]

         Macsherry claims that he followed up with representatives of CDC and/or SPLLC several times by telephone. Id. at 71. At his deposition, Macsherry testified that at some point before December 4, 2012, he had a conversation with Schoelch, and Schoelch stated that he would send Macsherry “an outline of business terms.” Id. at 76. Schoelch then sent Macsherry a term sheet as to Macsherry's employment. See ECF 59-10 (“First Term Sheet”). Macsherry testified that Schoelch told him that “Mike Roberts had signed off on all of these [terms].” Id. at 76-77.

         The First Term Sheet listed the “Position” as “Vice President of Leasing and Development-Sparrows LLC, ” with a start date “TBD.” See ECF 59-10. Macsherry's duties were set forth as follows, id.:

Be directly responsible for the marketing and brokerage efforts for the property; work directly with listing broker and general counsel to negotiate lease and sale contracts. Work with community organizations to increase the awareness of property; be point person to identify international customers and port related users for the site.
Be responsible for identifying appropriate local and state economic development packages/incentives; understanding the appropriate brown field entitlements and subsidies; work with Site Manager to address master plan issues including utility services, rail issues, zoning/subdivision issues, RET appeals, etc.

         In addition, the First Term Sheet specified a salary of “$50, 000 per year.” Id. And, of relevance here, the First Term Sheet addressed “Commission” as follows: “75 basis points paid on the total net value of any sales/leases or parcels.” Id. As examples, the First Term Sheet listed: “100 acres sold @ $200, 000 per acre = $150, 000” and “100 acres leased for 5 yrs @ $1, 200 per acre/month = $54, 000.” Id. The First Term Sheet also addressed health benefits, vacation, and paid holidays. See id.

         At his deposition, Schoelch testified that he had created the First Term Sheet and that the purpose of it was “[t]o identify the terms of employment for John Macsherry.” ECF 64-7 at 47. Notably, Schoelch also stated that he had discussed the terms set forth in the First Term Sheet with Roberts, and that Roberts had approved them. Id. at 47-48.

         After Macsherry received the First Term Sheet, he “responded to [Schoelch] and talked about the project, how detailed it was, how complicated it was, how much time and effort was going to be needed in moving this property forward.” ECF 59-6 at 77. Macsherry testified that he asked Schoelch, among other things, for a salary of $100, 000 and a commission greater than 75 basis points. Id. Schoelch responded that he had “to get Mike's approval.” Id. at 80.

         Schoelch emailed Macsherry a revised term sheet on December 4, 2012, which was a redlined copy of the First Term Sheet. Id. at 81-82; see ECF 59-11 (“Second Term Sheet”). Schoelch testified that he made the revisions that appear on the Second Term Sheet. ECF 64-7 at 50-51. Moreover, Schoelch testified that he would have verbally communicated to Roberts the terms of the Second Term Sheet. Id. at 55-56.

         Among other things, the Second Term Sheet provided a start date of “Monday, December 10, 2012.” ECF 59-11. It also reflected an increase in Macsherry's proposed salary, from $50, 000 per year to $77, 000 per year. Id. Although the Second Term Sheet did not change the “Commission” amount from “75 basis points paid on the total value of any sales/leases on parcels”, it added the qualification that the commission would only be paid “on any deals closed after the Start Date. Lafarge and Fritz deals excluded.” Id.

         Macsherry testified that during a telephone conversation with Schoelch on December 4, 2012, Schoelch extended “an offer of employment” to Macsherry. ECF 59-6 at 73. Schoelch and Macsherry discussed “all aspects of the compensation package”, including Macsherry's start date, salary, and bonus. Id. Notably, Macsherry testified that Schoelch informed him that Roberts had approved the Second Term Sheet. Id. at 84-85. Although Macsherry made some requests for changes, Macsherry claims that Schoelch said: “[T]his is the deal, that Mike's going to do, and you got to make a decision.” Id. at 82.

         Later on December 4, 2012, Macsherry called Schoelch to accept the offer. Id. at 85. At that point, Schoelch told Macsherry that he needed to meet with Roberts and T. Roberts in St. Louis. Id. at 86. Notably, when Macsherry was asked at his deposition whether he understood that he had been hired at that point, Macsherry responded: “No.” Id. Macsherry testified that he understood the meeting with Roberts and T. Roberts to be an interview, and that his employment was subject to their approval. Id.

         On or about December 7, 2012, Macsherry flew to St. Louis for an interview with Roberts and T. Roberts. Id. at 91. After meeting with the Roberts brothers and other CDC employees, Macsherry was instructed to meet with Lydon, who informed Macsherry that he was hired. Id. at 91-95. Lydon also asked Macsherry to sign various documents, including an employment agreement. Id. Macsherry claims that he examined the document “very carefully, ” comparing the text of the employment agreement with the terms in the Second Term Sheet. Id. at 98. According to Macsherry, the terms of the employment agreement were identical to the provisions of the Second Term Sheet. Id. at 96-98. He also stated that he asked Lydon: “Is this the one that Rob and I agreed to?”, and Lydon responded, “Yes.” Id. at 99. Macsherry claims that he signed the employment agreement. Id. at 97.

         According to Macsherry, after he signed the employment agreement, Lydon said that “she would have Mike Roberts sign it” and would send Macsherry a copy. Id. at 100. But, Macsherry states that he never received a copy of the signed employment agreement. ECF 59-13, Nos. 7, 8; see also ECF 59-6 at 100. Nor was Macsherry ever informed that Roberts had signed the employment agreement. ECF 59-13, Nos. 1, 2. And, the record does not contain a signed employment agreement. However, the handwritten word “Accepted” appears on the Second Term Sheet, along with Macsherry's signature. See ECF 59-11. Macsherry testified at his deposition that he signed that document in “Mid-2013”. ECF 59-6 at 103.

         Consistent with the Second Term Sheet, Macsherry began working for SPLLC and/or CDC at the Property on December 10, 2012. ECF 59-6 at 91; ECF 64-4 at 120. He claims to have performed a variety of duties, including meeting with representatives of a potential buyer of the Property, “Beowulf Energy LLC” (ECF 64-4 at 197-98); keeping the North Point Community Association “up to speed on what was going on at the site” and discussing their concerns (id. at 195-96); and coordinating the renewal of the lease of a tenant, Nelson Pallet. Id. at 160. As discussed, infra, Macsherry also claims that he was involved in the ultimate sale of the Property. Id. at 154.

         Macsherry sent Lydon an email on June 4, 2013, requesting a copy of the employment agreement that he claims to have signed in December 2012. See ECF 59-14 at 3-4. Lydon did not dispute the existence of such a document. Rather, she replied, id. at 3: “Let me see if I can locate it-I never got a copy of it.” The next day, June 5, 2013, Macsherry asked Lydon if she had been able to find the executed employment agreement. Id. On June 6, 2013, Lydon replied: “John, I apologize as I am and have been in the middle of a big closing. Please give me a check back tomorrow . . . .” Id. at 2. On the same date, Macsherry sent Lydon another email, informing her that he “found the agreement”, although Lydon had “the signed on [sic].” Id. He also stated that he had asked Schoelch for a copy of the executed agreement, but Schoelch was unable to find it. Id.; see also ECF 59-15 (June 5, 2013 email to Schoelch).[8]

         On July 16, 2013, after the Nelson Pallet deal was finalized, Macsherry sent Schoelch an email asking if his commission for that deal had been submitted. ECF 59-16. Schoelch replied the same day, stating, id.: “On the Nelson thing I was waiting for you to send me a signed copy of your employment agreement. If you recall, I can not [sic] find one.” On July 18, 2013, Macsherry sent Schoelch an email, along with a copy of the Second Term Sheet. See ECF 59-17; see also ECF 59-6 at 103. At his deposition, Schoelch testified that he told Macsherry that the copy of the Second Term Sheet “was not his term sheet.” ECF 59-9 at 146.

         Macsherry testified that during a subsequent conversation with Schoelch regarding the Nelson Pallet commission, Schoelch told Macsherry: “Look, right now is not a good time. Mike Roberts has a lot on his plate. Let's not do this right now. Let's - let's do this later.” ECF 64-4 at 183. Macsherry testified that he never asked Roberts about his commission for the Nelson Pallet deal. ECF 59-6 at 184. Nor was he paid a commission. Id. at 182. But, the commission Macsherry claimed was due to him for the Nelson Pallet deal was only $168.75 or $281.25. See ECF 64-13 (Macsherry Commission Invoice); ECF 64-14 (Macsherry Commission Invoice).

         According to Roberts, in December 2013, SPLLC and Hilco entered into a “Purchase and Sale [A]greement” for the Property. ECF 59-3, ¶ 19. Roberts avers that over the two year period during which SPLLC and Hilco jointly owned the Property, the two entities were “in regular communication.” Id. ¶ 17. Roberts claims that serious negotiations “began between Tom Roberts, [Roberts], and principals of Hilco, and continued intermittently between Rob Schoelch of CDC, Randall Jostes of ELT, and principals of Hilco.” Id. ¶ 18. The transaction closed on September 17, 2014. Id. ¶ 19. The Baltimore Sun reported that Hilco paid $110 million for the Property. Natalie Sherman, Sparrows Point Buyers Pay $110 Million, Baltimore Sun, Oct. 27, 2014, available at: http://bsun.md/2spX0Tl.

         Macsherry's role in the sale of the Property is disputed. In his Affidavit, Roberts asserted that the agreement between Hilco and SPLLC in December 2013 happened “completely independent of Macsherry's actions . . . .” ECF 59-3, ¶ 19. Moreover, Roberts stated, id. ¶ 20: “Mr. Macsherry did not procure Hilco or its eventual partner, Redwood Capital, as prospective purchasers of the Sparrows Point property, nor did Mr. Macsherry serve any material or significant role in the negotiations with Hilco or Redwood Capital.” In contrast, Macsherry testified at his deposition that he was involved in the negotiations between Hilco and SPLLC. See ECF 59-6 at 245-47. In particular, Macsherry stated that he was part of the discussions between Schoelch and “Roberto Perez”, a vice president of Hilco, over a “protracted period of time . . . .” Id. at 245. When Macsherry was asked the extent of his participation in the sale of the Property, Macsherry responded that he was involved in “a lot of the conversations” between Schoelch and Perez. Id. at 247. The following deposition testimony of Macsherry is relevant, ECF 64-4 at 154:

Q: Now, did you work on the ultimate sale of the Sparrows Point property?
A: Yes.
Q: What did you do?
A: I worked with the buyer, communicated with the buyer on several issues, communicated with CDC on a variety of issues.
Q: What types of issues?
A: Marketing, interested parties, County Government, State Economic Development issues, bridge issues. To several different things.

         On September 9, 2014, shortly before the closing on the sale of the Property, Macsherry sent Lydon an email stating, ECF 59-18: “Becky, here is the outline of the employment agreement with CDC a reed [sic] to by all parties. Please let me know if you have any questions.”[9] Thereafter, on or about September 19, 2014, Macsherry attempted to call Roberts. See ECF 59-19 (Sept. 19, 2014 email from Macsherry to Roberts). Macsherry followed up his calls with an email on September 19, 2014, stating, id.: “Mike left you a couple of VM's. Can you call me.”

         Macsherry spoke with Roberts on the morning of September 25, 2014. ECF 64-4 at 234. After this conversation, Macsherry sent Roberts an email (see ECF 64-20), along with the copy of the Second Term Sheet that he had signed in 2013. See Id. Macsherry and Roberts then spoke a second time on September 25, 2014. ECF 64-4 at 236. During the second conversation, Macsherry claims that Roberts said, id. at 235: “I know we owe you a commission, but we want to negotiate it. What will you take[?]”

         Macsherry was never paid a commission for the sale of the Property. Roberts asserted in his Affidavit of December 14, 2016, ECF 59-3, ¶ 16: “I never agreed to pay Plaintiff, John H. Macsherry, any commission of any kind.”

         Macsherry testified that he believed that he would receive a commission whether or not he was involved in a transaction for the lease or sale of the Property. ECF 64-4 at 149-50. According to Macsherry, during the interview process, he “had a conversation with Rob [Schoelch], and he said, any . . . transaction, any sale or lease of parcels, or any deals closed after the date, I was going to receive what they call here the - the commission.” Id. at 152. But, when plaintiff was asked whether Schoelch ever told him that he would receive a commission, regardless of his involvement in the transaction, Macsherry responded, id.: “No . . . .” Moreover, when plaintiff was asked whether he “discussed with anyone whether [he] needed to be involved in closing the transaction to earn what is called a commission under this agreement, ” Macsherry responded: “No.” Id. at 153.

         With respect to Macsherry's understanding of the commission, the following deposition testimony of Macsherry is pertinent, ECF 59-6 at 25:

Q: What was the purpose of the commission in your employment agreement?
A: It was to compensate me for all my duties working on the property.
Q: Was it to provide any extra incentive for you to go out and close deals?
MR. O'CONNELL [Counsel for Plaintiff]: Objection.
A: It was provided as a - a - you know, a - as they did deals, they could - they could pay me, and so it was to compensate for the low salary.
Q: Okay. So then you would say it was not designed to give you an incentive to go out and close deals or find transactions?
MR. O'CONNELL: Objection. That's not his testimony.
A: I mean, it - it probably could be construed that way, you know, you go out and work hard you could get - you know, you could get a transaction done, you could get more - make more money. But it's also just that, you know, this is how we're going to pay you as the deals get done, you'll be compensated that way.
Q: And you're saying the sole reason for the way it was designed that way was to compensate you for a low salary?
MR. O'CONNELL: Objection.
A: Well, yes, that's the way - that's how they justified the low salary, was that, look, you - you can more [sic] money by doing this deal - doing deals.

         Schoelch's deposition testimony is also relevant. He stated, ECF 64-7 at 58:

         The term - it was important in the terms of employment for the guy on the ground that he have a commission component to his compensation because we had a lot of land to move. So what is meant by this is that that was one part of the compensation, was he would be paid as land was sold.

         In addition, the following deposition testimony of Schoelch is pertinent, id. at 58-59:

Q: Did you discuss [the commission] component with Mike Roberts?
A: I don't recall the 75 basis points. I do recall a commission/base salary component to the compensation.
Q: And you discussed that with Michael Roberts?
A: Mm-hmm.
Q: Is that a yes?
A: Yes.
Q . . . Did you discuss this component of the compensation package with Mr. Roberts, Michael Roberts; correct?
A: Yes.

         Additional facts are included in the Discussion.

         II. Standard of Review

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); see also Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017) (“A court can grant summary judgment only if, viewing the evidence in the light most favorable to the non-moving party, the case presents no genuine issues of material fact and the moving party demonstrates entitlement to judgment as a matter of law.”). The non-moving party must demonstrate that there are disputes of material fact so as to preclude the award of summary judgment as a matter of law. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).

         The Supreme Court has clarified that not every factual dispute will defeat the motion. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248. There is a genuine issue as to material fact “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016).

         “A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [its] pleadings, ' but rather must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)), cert. denied, 514 U.S. 1042 (2004); see also Celotex, 477 U.S. at 322-24. Moreover, in resolving a summary judgment motion, a court must view all of the facts, including reasonable inferences to be drawn from them, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. Ltd., 475 U.S. at 587; accord Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).

         The judge's “function” in reviewing a motion for summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; accord Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir 2016). Thus, in considering a summary judgment motion, the court may not make credibility determinations. Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007). Moreover, in the face of conflicting evidence, such as competing affidavits, summary judgment ordinarily is not appropriate, because it is the function of the fact-finder to resolve factual disputes, including matters of witness credibility. See Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).

         However, to defeat summary judgment, conflicting evidence must give rise to a genuine dispute of material fact. Anderson, 477 U.S. at 247-48. If “the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” then a dispute of material fact precludes summary judgment. Id. at 248; see Sharif v. United Airlines, Inc., 841 F.3d 199, 204 (4th Cir. 2016). Conversely, summary judgment is appropriate if the evidence “is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 252. And, “the mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].” Id.

         III. Choice of Law

         In this case, subject matter jurisdiction is founded on diversity of citizenship. See 28 U.S.C. § 1332. Macsherry asserts common law contract and quasi contract claims under Maryland law, along with a statutory claim under Maryland law. See ECF 26.

         In regard to state law claims under diversity jurisdiction, federal courts apply federal procedural law and the substantive law of the state in which the proceeding is brought. See, e.g., Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938); Leichling v. Honeywell Intern., Inc., 842 F.3d 848, 851 (4th Cir. 2016); see also Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 74 (4th Cir. 2016); Colgan Air, Inc. v. Raytheon Aircraft Co., 507 F.3d 270, 275 (4th Cir. 2007); C. Wright & A. Miller, Fed. Practice and Procedure, § 3567 (“Wright & Miller”). And, federal courts apply the choice of law rules of the state in which the court sits. See, e.g., Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496-97 (1941); Albemarle Corp. v. AstraZeneca UK Ltd., 628 F.3d 643, 652-53 (4th Cir. ...


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