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Ellicott Dredges, LLC v. DSC Dredge, LLC

United States District Court, D. Maryland

December 4, 2017

DSC DREDGE, LLC Defendant.



         Plaintiff 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 accompanying order.

         I. Facts

         Plaintiff 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 (“Amb. Islam”).

         In 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.[1] (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).)

         Under 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.”

         Aside 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.)

         Perhaps 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.)[2] 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.)

         During 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. (Id.)

         Defendant 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. 61-8.)

         In 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, [3] and 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.)

         In 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.

         II. Standard of Review

         “When 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 ...

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