United States District Court, D. Maryland
L. Russell, III United States District Judge
before the Court are Plaintiffs Allegis Group, Inc.
(“Allegis”), Aerotek, Inc.
(“Aerotek”), and TEKsystems, Inc.'s Fourth
Motion for Summary Judgment (ECF No. 124). The Motion is ripe
for disposition, and no hearing is necessary. See
Local Rule 105.6 (D.Md. 2016). For the reasons outlined
below, the Court will grant the Motion.
matter involves six former Aerotek employees, including
Defendants Justin Jordan, Daniel Curran, and Michael
and their activities before and after
Allegis selected Jordan, Curran, and Nicholas to participate
in its Incentive Investment Plan (“IIP”), which
awards participants Units,  equivalent to a common share of Allegis
stock. (Am. Compl. ¶¶ 39, 40, ECF No. 26; see
also Pls.' Cross-Mot. Summ. J. [“Pls.'
Cross-Mot.”] Ex. 4 [“IIP”], ECF No. 75-6).
While employed at Aerotek, participants receive cash
dividends twice a year based on the value of their Units.
(IIP at 7).
awards Units through Award Agreements, which employees must
sign each time they earn Units. (Pls.' Cross-Mot. Ex. 6
[“Award Agreements”] ¶¶ 1, 4, ECF No.
75-8). Of import here, the Award Agreements state that
“the terms and conditions set forth in Section 9 [of
the IIP] are material and essential terms of your award of
Units and your eligibility to receive payment for any
Units.” (Award Agreements ¶ 2). Section 9 includes
non-competition and non-solicitation provisions and is
effective for thirty months after termination of employment.
(IIP at 5-6).
IIP participant's employment has ended, Allegis pays the
participant the remaining balance of the value of his Units,
known as “IIP payments, ” as follows: five
percent of his balance is paid every quarter for ten
quarters, and then the remaining fifty percent of his balance
is paid after thirty months. (Am. Compl. ¶ 42). After
termination and before receiving IIP payments, Allegis
required participants to sign Acknowledgment Letters stating,
inter alia, a breach of Section 9 terminates their
ability to receive IIP payments and requires them to refund
any IIP payments received. (See Pls.' Cross-Mot.
Exs. 5, 23, 33, ECF Nos. 75-7, -25, -35). When Defendants
resigned, each of them signed the Acknowledgement Letters.
resigned on February 21, 2009, and his Section 9 obligations
expired on August 21, 2011. (Pls.' Cross-Mot. Ex. 5).
Curran resigned on September 16, 2011, and his Section 9
obligations expired on March 16, 2014. (Pls.' Cross-Mot.
Ex. 23). Nicholas resigned on January 3, 2012, and his
Section 9 obligations expired on July 3, 2014. (Pls.'
Cross-Mot. Ex. 33). At the time of their resignations, Curran
was scheduled to receive $196, 470.00 in IIP payments and
Nicholas was scheduled to receive $138, 268.00. (June 10,
2014 Mem. Op. at 7, ECF No. 85).
Jordan's IIP obligations expired, he solicited Hadley to
resign from Aerotek. (Am. Compl. ¶ 53). Similarly,
before Curran and Nicholas' IIP obligations expired, they
began working at PES, where they staffed IT positions in
competition with Plaintiffs. (Id. ¶¶ 55,
59, 65). As a result, all three Defendants breached their
Award Agreements. (June 10, 2014 Mem. Op. at 36-37). Allegis
discontinued the IIP payments to Curran and Nicholas.
(Defs.' Answer ¶¶ 46, 47, ECF No. 30). Curran
only received two payments of $8, 851.00, and Nicholas only
received one payment of $6, 195.00. (Am. Compl. ¶¶
46, 47). Jordan, meanwhile, received all of his IIP payments,
totaling over $1.45 million. (Am. Compl. ¶ 45).
brought claims for breach of contract, recession, and unjust
enrichment against Defendants. (Am. Compl. ¶¶
83-129). On December 23, 2013, Plaintiffs filed a
Cross-Motion for Partial Summary Judgment on their breach of
contract claim regarding the Agreements. (ECF No. 75). On
June 10, 2014, the Court issued a Memorandum Opinion (ECF No.
85) and Order (ECF No. 86) granting Plaintiffs' Motion,
concluding that Defendants breached their Award Agreements.
(June 10, 2014 Mem. Op. at 36-40).
29, 2015, Plaintiffs filed a Second Motion for Summary
Judgment on the issue of damages related to Defendants'
breach. (ECF No. 102). On March 18, 2016, the Court issued a
Memorandum Opinion (ECF No. 107) and Order (ECF No. 108)
denying Plaintiffs' Motion without prejudice. The Court
still concluded, however, that the IIP, Award Agreements, and
Acknowledgement Letters were meant to be read and construed
as a single contract (the “IIP Contract”). (Mar.
18, 2016 Mem. Op. at 12-13). The Court further concluded that
Defendants' breach of the Award Agreements was material.
(Id. at 7).
March 6, 2017, the Court ordered the parties to address
whether Plaintiffs have met the requirements for rescission
and restitution. (Mar. 6, 2017 Order, ECF No.
response, Plaintiffs filed the instant Motion on April 10,
2017. (ECF No. 124). On May 8, 2017, Defendants filed an
Opposition. (ECF No. 127). Plaintiffs filed a Reply on May
30, 2017. (ECF No. 130).
reviewing a motion for summary judgment, the Court views the
facts in a light most favorable to the nonmovant, drawing all
justifiable inferences in that party's favor. Ricci
v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970)). Summary judgment is proper when the movant
demonstrates, through “particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
. . . admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A).
Significantly, a party must be able to present the materials
it cites in “a form that would be admissible in
evidence, ” Fed.R.Civ.P. 56(c)(2), and supporting
affidavits and declarations “must be made on personal
knowledge” and “set out facts that would be
admissible in evidence, ” Fed.R.Civ.P. 56(c)(4).
motion for summary judgment is properly made and supported,
the burden shifts to the nonmovant to identify evidence
showing there is genuine dispute of material fact. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986). The nonmovant cannot create a
genuine dispute of material fact “through mere
speculation or the building of one inference upon
another.” Othentec Ltd. v. Phelan, 526 F.3d
135, 141 (4th Cir. 2008) (quoting Beale v. Hardy,
769 F.2d 213, 214 (4th Cir. 1985)).
“material fact” is one that might affect the
outcome of a party's case. Anderson, 477 U.S. at
248; see also JKC Holding Co. v. Wash. Sports Ventures,
Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing
Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.
2001)). Whether a fact is considered to be
“material” is determined by the substantive law,
and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248; accord
Hooven-Lewis, 249 F.3d at 265. A “genuine”
dispute concerning a “material” fact arises when
the evidence is sufficient to allow a reasonable jury to
return a verdict in the nonmoving party's favor.
Anderson, 477 U.S. at 248. If the nonmovant has
failed to make a sufficient showing on an essential element
of her case where she has the burden of proof, “there
can be ‘no ...