United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm, United States District Judge.
Fire Protection, Inc. (“Allied Fire”) filed suit
against former employee Huy Thai, alleging that, after
Thai's employment ended, he breached a purported
“Non-Compete/NonDisclosure Agreement” that he
signed and, specifically, the non-compete, non-solicitation,
and non-disclosure provisions of that contract, as well as a
provision requiring Thai to return his employer's
property when his employment with the company ended. Allied
Fire also claims that Thai is liable for tortious
interference with contractual relations and prospective
advantage, as well as intentional misrepresentation. Thai has
moved to dismiss the case. ECF No. 7. Thai's Motion to Dismiss
is granted, as Allied Fire has failed to state a claim for
which relief can be granted. But Allied Fire may amend its
claims for breach of contract, tortious interference, and
intentional misrepresentation, as discussed below if it has a
good faith basis for doing so. Allied Fire's other claims
are dismissed with prejudice.
Fire, a Maryland corporation engaged in the business of
“fire protection, suppression, consulting, design,
engineering, fabrication and equipment installation, ”
Compl. ¶ 3, ECF No. 2, employed Thai from 2006 to 2014.
Id. ¶¶ 11-12. Thai was “initially
hired . . . as an engineer to complete designs and drawings
for some of the projects Plaintiff was hired to complete,
” and he “headed Plaintiff's business”
during its chief executive officer's absence.
Id. ¶¶ 4, 15. In that capacity,
“Plaintiff's CEO trained the Defendant on how
Plaintiff does business and revealed to the Defendant
Plaintiff's industry trade secretes [sic] and advantages
in the fire protection field.” Id. ¶ 16.
In 2013, Thai purportedly signed a
(“Agreement”). Id. ¶ 18.
reasons that are not discernable from the record, and despite
predicating its Complaint on two breaches of a purportedly
written contract, Allied Fire did not attach the contract
underlying its claims to its Complaint or any subsequent
filing and has not produced it in response to Thai's
numerous attempts to obtain it. See Compl.; Emails,
ECF No. 18-1. Instead, Allied Fire summarizes the relevant
provisions of the purported Agreement, and Thai does not
appear to dispute the summary, which follows:
[is] not to:
 Provide or engage in any way business of a similar nature
(i.e., engineering, consulting and general construction) to
the business of the Plaintiff without written consent of the
 Directly or indirectly engage in any similar business
(i.e., engineering, consulting and general construction) with
Plaintiff's former, current or future clients for Sixty
(60) months after separation from Plaintiff's business.
 Solicit any client of Plaintiff for the benefit of a
 Perform any work for any other company while working for
 Keep Plaintiff's property (all documents and other
 Disclose any technical/nontechnical, data or other
proprietary information related to products, inventions,
plans, methods, processes, know-how, developmental or
experimental work, computer programs, databases, authorship,
customer list, vendors, suppliers, marketing methods,
reports, analysis, plans, consultants, licensees, files,
notebooks, samples, lists correspondence, software or other
written or graphic records.
Compl. 2-3. Although the parties refer generally to a
non-compete clause in their briefing, the first, second, and
fourth provisions are the non-compete clauses; the third is a
non-solicitation clause; the sixth is a non-disclosure
clause; and the fifth provision, one not typically discussed
in the context of restrictive covenants, I will refer to as
the company property clause.
Thai's employment with Allied Fire ended,  the employer
filed suit against him in the Circuit Court for Prince
George's County, Maryland, alleging four causes of
action: (I) breach of contract (specifically, the
Non-Compete/Non-Disclosure Agreement); (II) breach of the
non-compete and non-solicitation provisions of the Agreement;
(III) tortious interference with contractual relations and
prospective advantage; and (IV) intentional
misrepresentation. Allied Fire claims that Thai breached the
Agreement when he “unlawfully obtained access to
proprietary software” and used it to “perform
work for one of Plaintiff's clients/competitors, ”
which as best I can discern, is an allegation that Thai
breached the non-disclosure agreement, and that Thai breached
the Agreement when he retained company property, including a
computer, cell phone, and documents, in violation of the
company property clause. Compl. ¶¶ 12-13. Allied
Fire also claims that Thai breached the non-compete and
non-solicitation clauses when he “went to work for one
of Plaintiff's clients to do the work that the client
once hired Plaintiff to do” immediately upon
termination, id. ¶ 20, and thereafter began
“soliciting Plaintiff's clients to do the work that
such clients once hired the Plaintiff to perform, ”
id. ¶ 21. Additionally, Allied Fire alleges
that Thai tortiously interfered with its contractual
relations by intentionally and willfully “steering 
business opportunities away” from Allied Fire and to
himself or to Allied Fire's competitors “for a
financial kickback”; offering unauthorized discounts
and kickbacks; and “improperly pay[ing] people that
Defendant would fire for work that never was done to obtain
future favors from [them].”. Id. ¶¶
26-28. Lastly, Allied Fire contends that, after it terminated
Thai's employment, he defrauded his former employer by
intentionally misrepresenting himself as authorized to
“handle clients['] contract
matters.” Id. ¶¶ 30-31.
removed the case to this Court under diversity jurisdiction
on February 24, 2017 and filed the pending motion on March 3,
2017. Allied Fire an untimely opposition thirty-three days
later on April 5, 2017, and Thai filed a timely reply on
April 19, 2017.
Opposition, Allied Fire challenges this Court's
jurisdiction to resolve its claims because, it believes, to
do so would violate Article I, § 10, Clause 1 of the
United States Constitution, the so-called “Contracts
Clause.” Pl.'s Opp'n, 5, 10-13. Specifically,
Allied Fire asserts that the purported Agreement included a
“choice of law section” that stated:
Any disputes arising from or related to the subject matter of
this agreement shall be heard in an appropriate court of PG
County, Maryland and the parties hereby consent to the
personal jurisdiction and venue of these courts.
Id. at 11. In its view, if this Court maintained
jurisdiction, it would interfere with the parties'
obligations under this contractual provision, in violation of
the Contracts Clause. Allied Fire seeks remand back to the
Circuit Court for Prince George's County.
argues that Allied Fire has waived the benefit of any forum
selection clause that might have existed because the request
for remand was untimely under 28 U.S.C § 1447(c), which
requires that removal must be challenged within 30 days of
filing of the notice of removal. Def.'s Reply 9.
Additionally, Thai contends that the purported forum
selection clause does not constitute a waiver of the right to
removal because the clause is ambiguous, not “clear and
unequivocal.” Id. at 10-11.
contracts Clause provides that “[n]o State shall . . .
pass any . . . Law impairing the Obligation of Contracts . .
. .” U.S. Const. art. I, § 10, cl. 1. Insofar as
Thai insists that it would violate the Contracts Clause for
this Court-part of the judiciary branch of the federal
government-to maintain jurisdiction, his argument is
completely without merit because “[t]he Contracts
Clause applies only to the states, not to the federal
government or individuals.” Nix v. NASA Fed. Credit
Union, 200 F.Supp.3d 578, 587-88 (D. Md. 2016) (citing
Pension Ben. Guar. Corp. v. R.A. Gray & Co., 467
U.S. 717, 734 n.9 (1984)).
although a party may assert lack of personal jurisdiction as
a defense in a lawsuit, failure to do so in a timely manner
waives this defense. Ins. Corp. of Ireland, Ltd., v.
Conmpagnie des Bauxites de Guinee, 456 U.S. 694, 703
(1982). Allied Fire did not file a timely motion to remand.
Instead, it challenged personal jurisdiction in its
Opposition, which it filed forty days after Thai removed the
case to this Court and filed its Notice of Removal, ECF No.
1. An opposition is an inappropriate means of seeking remand
on any ground other than lack of subject matter jurisdiction.
See Fed. R. Civ. P. 7(b)(1); MHD-Rockland Inc.
v. Aerospace Distribs. Inc., No. CCB-13-2442, 2014 WL
31677, at *6 (D. Md. Jan. 3, 2014) (“[A] district court
can remand a case based on a defect other than a lack of
subject matter jurisdiction only if a party makes a motion
for the court to do so within thirty days of the filing of
the notice of removal. By contrast, a district court can
remand a case based on defects in subject matter jurisdiction
at any time sua sponte. (citing Ellenburg v.
Spartan Motors Chassis, Inc., 519 F.3d 192, 198-99 (4th
Cir. 2008))). Further, Allied Fire did not challenge the
validity of the removal to this Court in the required 30 days
from the filing of notice of removal, see 28 U.S.C.
§ 1447(c); MHD-Rockland, 2014 WL 31677, at *6.
Consequently, Allied Fire has forfeited the right to
challenge the jurisdiction of this Court. Therefore, this
Court has personal jurisdiction over Plaintiff. See Ins.
Corp. of Ireland, 456 U.S. at 703.
event, the purported forum selection clause, stating that
disputes “shall be heard in an appropriate court of PG
County, Maryland, ” does not vest exclusive
jurisdiction in the state courts. See Mims v. Arrow Fin.
Servs., LLC, 565 U.S. 368, 374, 380 (2012) (construing
statutory provision that “[a] person or entity may, if
otherwise permitted by the laws or rules of court of a State,
bring a private action in an appropriate court of that
State” and concluding that “[n]othing in
th[at] permissive language . . . makes state-court
jurisdiction exclusive . . . .” (emphasis added)).
Indeed, under federal law,  “[a] general maxim in
interpreting forum-selection clauses is that ‘an
agreement conferring jurisdiction in one forum will
not be interpreted as excluding jurisdiction
elsewhere unless it contains specific language of
exclusion.'” IntraComm, Inc. v. Bajaj, 492
F.3d 285, 290 (4th Cir. 2007) (quoting John Boutari &
Son, Wines & Spirits, S.A. v. Attiki Imp. & Distrib.,
Inc., 22 F.3d 51, 53 (2d Cir. 1994)) (emphasis in
John Boutari; internal citation and quotation marks
omitted)). Therefore, this Court, which is located in Prince
George's County, Maryland, has jurisdiction under the
forum selection clause to hear this case.See Mims,
565 U.S. at 380.
Rule of Civil Procedure 12(b)(6) provides for “the
dismissal of a complaint if it fails to state a claim upon
which relief can be granted.” Velencia v.
Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md.
Dec. 13, 2012). This rule's purpose “is to test the
sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” Id. (quoting
Presley v. City of Charlottesville, 464 F.3d 480,
483 (4th Cir. 2006)). To that end, the Court bears in mind
the requirements of Rule 8, Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009) when considering a motion to
dismiss pursuant to Rule 12(b)(6). Specifically, a complaint
must contain sufficient factual matter in the form of
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Additionally, the complaint must state, on its face,
“a plausible claim for relief, ” as
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678-79. See
Velencia, 2012 WL 6562764, at *4 (discussing standard
from Iqbal and Twombly). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. The plaintiff must raise a
“right to relief above the speculative level” and
“nudge [his] claims . . . across the line from
conceivable to plausible.” See, e.g.,
McCleary-Evans v. Md. Dep't of Transp., 780 F.3d
582, 587 (4th Cir. 2015) (quoting Twombly, 550 U.S.
of Contract (Count I) and Breach of Covenant Not to Compete
insists that Allied Fire's claims for breach of contract
and breach of the non-compete and non-solicitation
claims should be dismissed “because the
Agreement is unenforceable as a matter of law.”
See Def.'s Mem. 4. He argues that the Agreement
“is far wider in scope and duration that is necessary
to protect the employer's interests and . . . imposes an
undue hardship on Defendant.” Id. at 4-5.
Notably, his argument pertains specifically to “[t]he
non-compete and non-solicitation provisions in the Agreement,
” however. See Id. at 5-6, 8-13. He does not
address the enforceability of the non-disclosure and company
property provisions of the Agreement that are at issue in
Fire, which alleged (in conclusory language) in its Complaint
that the Agreement was reasonable given the “nature of
Plaintiff's disclosures, industry trade secretes [sic]
and Defendant['s] level of authority and responsible
[sic], ” Compl. ¶ 19, counters that the
restrictive covenants are reasonably limited in terms of
“area and duration” in a manner that is necessary
to protect its “legitimate business interest, ”
Pl.'s Opp'n 6. Additionally, Allied Fire contends
that no geographical limitation is necessary because the
Agreement only restricts access to its “established
clients.” Id. at 8-9. Alternatively, Allied
Fire argues that, should any provision of the Agreement be
determined to be overly broad, “blue
penciling” would be appropriate. Thai counters that
blue-penciling would be inappropriate here because the
provisions in questions are intertwined and cannot be
covenants in employment contracts limit an individual's
right to employment, and therefore they are generally viewed
“with caution and read narrowly.” SNS One,
Inc. v. Hage, No. L-10-1592, 2011 WL 2746713, at *3 (D.
Md. July 11, 2011). For restrictive covenants (which include
non-compete, non-solicitation, and non-disclosure clauses) to
(1) the employer must have a legally protected interest,
(2) the restrictive covenant must be no wider in scope and
duration than is reasonably necessary to protect the