United States District Court, D. Maryland
K. BREDAR CHIEF JUDGE
Ellicott Dredges, LLC has brought this action against
Defendant DSC Dredge, LLC alleging that Defendant tortuously
interfered with an exclusive sales representation contract
Plaintiff had with a former Bangladeshi Ambassador,
tortuously interfered with Plaintiff's business relations
in Bangladesh, and competed unfairly. (See Compl.,
ECF No. 1.) Plaintiff moved for summary judgment on the
tortious interference counts (ECF No. 60), and Defendant
responded by moving for summary judgment on all counts (ECF
No. 64). Both parties have had opportunities to respond to
these motions, and no hearing is necessary to resolve the
matter. See Local Rule 105.6 (D. Md. 2016). For the
reasons stated below, the Court will grant Defendant's
motion, deny Plaintiff's motion, and dismiss the case by
and Defendant are competitors in the business of
manufacturing and selling dredging equipment. (Compl.
¶¶ 6, 16.) Both parties operate around the world,
including in Bangladesh, and both parties rely on Bangladeshi
representatives to help them procure and maintain business in
that country. (See Id. ¶¶ 6-8; DSC Dep.
28-29, 36, 42-43, Def.'s Mot. Summ. J. Ex. 14, ECF No.
65-13.) This case revolves around one such representative,
Bangladesh's former Ambassador to Brazil, Moin Ul Islam
2000, Plaintiff began working with Amb. Islam, and employed
him as its exclusive sales representative in Bangladesh.
(Compl. ¶ 7.) From 2000 to 2014, Amb. Islam operated in
Bangladesh as Plaintiff's exclusive agent under various
contracts. (Peter Bowe Dep. 37-38, Pl.'s Mot. Summ. J.
Ex. 3, ECF No. 61-1.) Amb. Islam and Plaintiff signed a Sales
Representation Agreement (“Representation
Agreement”) on January 16, 2014. (Representation
Agreement, Compl. Ex. A, ECF. No. 1-1.) This agreement was
mutually exclusive, meaning that Plaintiff agreed not to make
any sales representation agreement with anyone in Bangladesh
besides Amb. Islam, and Amb. Islam agreed not to make
“any agreement with others for the sale of products . .
. which in any manner compete with [Plaintiff's]
Products.” (Id. § II.) This agreement
automatically expired one year after it was signed,
“unless [it was] extended by Agreement in writing
between the parties before the end of the [year].”
(Id. § XIX(A).)
the Representation Agreement and earlier contracts, Amb.
Islam had been paid on a commission basis only, and in 2014
Amb. Islam expressed a desire to be paid on a more regular
basis. (Paul Quinn Aff. ¶ 2, Pl.'s Mot. Summ. J. Ex.
1, ECF No. 60-2.) To satisfy this desire, Paul Quinn, Vice
President of Sales for Plaintiff and Plaintiff's employee
primarily responsible for dealing with Amb. Islam, arranged
to provide Amb. Islam a retainer fee. (Id. ¶
3.) Quinn emailed Amb. Islam on December 10, 2014 to
“advise” him of a “new quarterly retainer
payment.” (Id. Ex. B, Pl.'s Mot. Summ. J.
Ex. 1-B, ECF No. 60-4.) In this email, Quinn informed Amb.
Islam that, beginning on January 1, 2015, Plaintiff would pay
Amb. Islam a certain amount of money on a quarterly basis.
(Id.) Quinn also explained that “[a]t the end
of 2015, we will re-examine this for 2016.”
(Id.) This email did not discuss whether Amb. Islam
had any additional duties as a result of this new retainer
payment. For example, the email did not request that Amb.
Islam continue to exclusively represent Plaintiff in order to
earn this retainer. Instead, Quinn explained that
“[n]one of this affect[s] your current Representation
Agreement with us.” (Id.). Plaintiff refers to
this email as a “Retainer Agreement.”
from the Retainer Agreement, there was no other written
agreement prior to January 16, 2015 that referenced the
Representation Agreement, let alone one that memorialized a
desire to extend it past that date. Nevertheless, throughout
2015 Plaintiff continued to pay Amb. Islam commission in
accordance with the Representation Agreement. (Compl. ¶
13.) Amb. Islam, for his part, continued to work with
Plaintiff, hosting Plaintiff's employees when they
visited Bangladesh, introducing Plaintiff to potential
clients, and even stating in an email to a client that he was
Plaintiff's “exclusive rep” in Bangladesh.
(See Quinn Aff. ¶¶ 8, 11; Peter Bowe Aff.
Ex. B, Pl.'s Opp'n Ex. 23-B, ECF No. 69-4.) But Amb.
Islam did not continue to work for Plaintiff without
complaint. In early September 2015, Amb. Islam sent a letter
to Plaintiff expressing displeasure with the way in which he
had been treated by Quinn on a recent trip to Bangladesh.
(6/14/15 Ambassador Islam to Paul Quinn Email, Pl.'s Mot.
Summ. J. Ex 4, ECF No. 61-2.)
due to this displeasure, Amb. Islam had begun working with
Defendant. In June 2015, Charles Sinunu, director of
international dredge sales for Defendant, emailed various
potential clients in Bangladesh and noted that Amb. Islam had
introduced Defendant to those clients. (See
Pl.'s Mot. Summ. J. Exs. 6-7, ECF Nos. 60-9, 61-4.)
Importantly, as early as August 2015, Amb. Islam appeared to
have been involved in Defendant's relationship with a
particular shipyard and potential client, known as Karnafuly.
(See 8/27/15 Emails with Charles Sinunu and
Ambassador Islam re: Karnaphuli travel, Pl.'s Mot. Summ.
J. Ex. 9, ECF No. 60-12.) According to the Defendant, Amb. Islam
had approached Defendant representing himself as an agent of
these various potential clients. (See DSC Deposition
at 90.) Also according to Defendant, Amb. Islam had said he
had no relationship with Plaintiff, explaining that his
agreement with Plaintiff had expired at the end of 2014.
(Id. at 55, 69.) Defendant had asked for proof that
Amb. Islam was not working for Plaintiff when he initially
contacted Defendant in the summer of 2015. (Id.)
Amb. Islam had responded via phone call and email affirming
that he was no longer a representative of Plaintiff.
(Id. at 55.)
these communications between Amb. Islam and Defendant,
Plaintiff still believed that Amb. Islam was acting as its
exclusive agent in Bangladesh. In early September 2015,
Plaintiff's employee Peter Bowe contacted Defendant's
employee Robert Wetta to “check in to [Sinunu] chasing
[Plaintiff's] rep in Bangladesh.” (9/3/15 Email
between Rob Wetta and Charles Sinunu, Pl.'s Mot. Summ. J.
Ex. 16, ECF No. 60-19.) Wetta in turn contacted Sinunu,
asking him to “[c]onfirm with [Amb. Islam] if he does
have a valid agreement in place or if Peter [Bowe] is just
fishing.” (Id.) In addition to asking Amb.
Islam whether he had a valid agreement with Plaintiff, which
Amb. Islam denied, Defendant's employees also asked for
proof from Plaintiff that Amb. Islam was under contract.
(See DSC Deposition at 69-70; 9/3/15 Peter
Bowe's Email to Rob Wetta, Pl.'s Mot. Summ. J. Ex.
17, ECF No. 61-11.) Plaintiff responded to this request for
proof by providing Defendant an email correspondence with
Amb. Islam from August 2015 regarding a potential visit to
one of Plaintiff's facilities, as well as the email
containing the “Retainer Agreement.”
(See 9/4/15 Peter Bowe's Email to Rob Wetta,
Pl.'s Mot. Summ. J. Ex. 18, ECF No. 61-12.) Plaintiff
also told Defendant that it was still paying Amb. Islam.
did not view Plaintiff's response as “proof”
of a formal agreement between Plaintiff and Amb. Islam, and
Defendant continued to communicate with Amb. Islam for the
remainder of 2015. Defendant did not, however, pay Amb. Islam
commission fees in 2015, nor is there any evidence that
Defendant asked Amb. Islam to cease working for Plaintiff, to
provide Defendant with proprietary information belonging to
Plaintiff, or to direct potential clients for Plaintiff to do
business with Defendant. In December of 2015, Defendant and
Karnafuly signed a Memorandum of Understanding stating that
Defendant would provide Karnafuly a machinery package
resulting in almost $1, 000, 000 in business for Defendant.
(See 12/6/15 Karnaphuli Memorandum of Understanding,
Pl.'s Mot. Summ. J. Ex. 12, ECF No. 61-7; Karnaphuli Pro
Forma Invoices, Pl.'s Mot. Summ. J. Ex. 13, ECF No.
January 2016, Amb. Islam sent a letter (via email) to
Plaintiff. (1/29/16 Ambassador Islam and Peter Bowe Email,
Pl.'s Mot. Summ. J. Ex. 19, ECF No. 61-13.) In this
letter, Amb. Islam stated that the “Agreement”
(presumably referring to the Representation Agreement)
“automatically ended” on January 9, 2015,
had not been extended. (Id.) Amb. Islam further
stated that he had clearly informed Plaintiff that he was not
“comfortable about the way [he] was dealt with during
the tenure of the past Agreements.” (Id.) Amb.
Islam then explained that he had “stopped representing
[Plaintiff] in Bangladesh” and that he “will no
longer be associated with [Plaintiff].” (Id.)
February 2016, Amb. Islam signed a formal agreement to
represent Defendant. (DSC Sales Representation Agreement with
Ambassador Islam, Pl.'s Mot. Summ. J. Ex. 20, ECF No.
61-14.) Several months later, in May 2016 Plaintiff brought
this lawsuit, alleging three causes of action: tortious
interference with contractual relations, tortious
interference with prospective relations, and unfair
competition. (Compl. ¶¶ 23-45.) Both parties filed
motions for summary judgment.
Standard of Review
faced with cross-motions for summary judgment, the court must
review each motion separately on its own merits.”
Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.
2003). The Court will grant summary judgment to a party who
demonstrates that (1) there is no genuine dispute as to any
material fact and (2) that party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to
current Rule 56(a)). If sufficient evidence exists for a
reasonable jury to render a verdict in favor of the party
opposing the motion, then a genuine dispute of material fact
is presented and summary judgment should be denied. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). However, a “mere existence of a scintilla of
evidence in support of the [opposing party's]
position” is insufficient to defeat a motion for
summary judgment. Id. at 252. The facts themselves,
and the inferences to be drawn from the underlying facts,
must be viewed in the light Islam was ...