United States District Court, D. Maryland
Lipton Hollander United States District Judge
commercial dispute, plaintiff Farm Fresh Direct Direct By a
Cut Above, LLC (“Farm Fresh
Direct”) filed suit against defendants Jessica
Sinsky; Steven Downey; Clipper City Lending, LLC
(“Clipper City”); and Farm Fresh Direct Home Food
Services, LLC (“Farm Fresh Home”), alleging
unfair competition in violation of Section 43(a) of the
Lanham Act, codified at 15 U.S.C. § 1125(a) (Count One),
and unfair competition and deceptive trade practices under
Maryland common law (Count Two). ECF 1
(“Complaint”). Count Three alleges breach of contract
only as to Downey and Clipper City. See Id. at 6-7.
who is self-represented, lodged a counterclaim against Farm
Fresh Direct (ECF 33) (“Counterclaim”), supported
by exhibits. See ECF 33-1 through ECF
33-14. The Counterclaim is titled “Amended
Motion to Request Hearing and/or Declare ‘Independent
Representative Agreement' & ‘Non-Compete
Agreement' a Fraudulent, Unenforceable & Illegal
Document which forced signing took place under duress and
HEREBY Counterclaims.” Id.
are numerous motions filed by Sinsky, Downey, and Farm Fresh
behalf of Clipper City and Farm Fresh Home, Downey filed a
“Motion to Set-Aside Default Judgement.” ECF 35.
Notably, no default judgment has been entered as to either
entity. See Docket. In any event, Downey, who is not
a lawyer, is not entitled to file any pleadings on behalf of
either entity. See ECF 11; ECF 16; ECF 27; ECF 38.
Farm Fresh Direct opposes the motion. See ECF 44.
addition, Downey filed a “Motion to Request and Set-In
a Hearing Date” on behalf of himself, Clipper City, and
Farm Fresh Home. See ECF 37. Farm Fresh Direct did
not respond. See Docket. Downey filed a second
“Motion to Request and Set-In a Hearing Date”
(ECF 39), asking the Court to hold a hearing with regard to
Downey's Counterclaim. Farm Fresh Direct opposes that
request. See ECF 41.
Downey filed a “Motion for Partial Dismissal as to
Count III of the Complaint - Breach of Contract” (ECF
40), which is supported by several exhibits. See ECF
40-1 through ECF 40-9. Plaintiff opposes this motion. ECF 43.
Downey has not filed a reply (see Docket), and the
time to do so has expired. See Local Rule 105.2.a.
who is also self-represented, has filed a Motion to Amend her
Answer to the Complaint. See ECF 26. Farm Fresh Direct
has not opposed Sinsky's Motion to Amend (see
Docket), and the time to do so has expired. See
Local Rule 105.2.a.
Fresh Direct has filed a motion to dismiss Downey's
Counterclaim. ECF 34. By Order of March 29, 2018 (ECF 46), I
directed the Clerk to notify Downey as to the filing of the
motion to dismiss and his right to respond. Notice was mailed
to Downey that same day. ECF 47. Downey subsequently filed a
response in opposition to the motion to dismiss. ECF 50. And,
Farm Fresh Direct has replied. See ECF 53.
Fresh Direct has also filed a “Motion for Order to Show
Cause” (ECF 45), with an accompanying memorandum of law
(ECF 45-1), asking the Court to issue an order as to why
Downey should not be held in contempt and sanctioned. ECF
45-1 at 1, 5. In its motion, Farm Fresh Direct argues that
Downey has failed to comply with orders and instructions of
this Court, prohibiting him from litigating on behalf of
Clipper City and/or Farm Fresh Home. Id.; see,
e.g., ECF 11; ECF 16. Downey has not responded to this
motion (see Docket), and the time for him to do so
has passed. See Local Rule 105.2.a.
Court is mindful of its obligation to construe liberally the
pleadings of pro se litigants, which are “held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007); see also White v. White, 886 F.2d 721,
722-23 (4th Cir. 1989). Nevertheless, no hearing is necessary
to resolve these motions. See Local Rule 105.6.
reasons that follow, I shall grant Sinsky's unopposed
Motion to Amend her Answer (ECF 26). I shall deny Farm Fresh
Direct's Motion to Dismiss Downey's Counterclaim (ECF
34). And, I shall construe Downey's Answer (ECF 49) to
include the Counterclaim (ECF 33). I shall deny Downey's
Motion to Dismiss Count Three of the Complaint (ECF 40). I
shall also deny Downey's Motion to Set-Aside Default
Judgment as to Clipper City and Farm Fresh Home (ECF 35), as
well as his motions requesting hearings (ECF 37; ECF 39).
Moreover, I shall deny Farm Fresh Direct's motion for a
show cause order. ECF 45.
Factual and Procedural Background
Fresh Direct is a Maryland limited liability company
(“LLC”). ECF 1, ¶ 1. It describes itself as
a “direct-to-consumer supplier of quality, natural
foods and related services.” Id. Farm Fresh
Direct claims to own the trade name “Farm Fresh Direct
Direct.” Id. ¶ 9. Lawrence Everett and
Robert Siegal are co-owners of Farm Fresh Direct, each owning
a 50% share in the company. ECF 33, ¶¶ 3, 7. Alan
Fabian is the Chief Financial Officer of Farm Fresh Direct.
ECF 33, ¶¶ 4-5.
City is a Maryland LLC. ECF 1, ¶ 2-3. Downey is its
“sole Owner” and its “sole member.”
ECF 33, ¶¶ 12, 16; see also ECF 33-8 at 2
(email from Fabian to Downey, dated April 5, 2017). Farm
Fresh Home is also a Maryland LLC. ECF 1, ¶ 4. And,
Downey is its “sole Owner” and its “sole
member.” ECF 33, ¶¶ 10, 17. Sinsky is the
“resident agent and incorporator” of Farm Fresh
Home. ECF 1, ¶ 13.
states that on June 7, 2017, it registered ownership of the
trade name “Farm Fresh Direct Direct” with the
Maryland State Department of Assessments and Taxation
(“SDAT”). ECF 1, ¶ 9. Downey claims that he
was hired, on an unspecified date, by Siegal to be an
“Independent Contractor/Sales Representative” for
Farm Fresh Direct. ECF 33, ¶ 23. Downey also asserts
that when he was hired Siegal informed him that “there
would be no ‘Non-Compete Agreement' required as a
condition of employment” with Farm Fresh Direct. ECF
33, ¶ 53; see also Id. ¶ 26.
to Downey, he attended “Sales Training, ” without
compensation, from February 20, 2017, through March 4, 2017.
ECF 33, ¶¶ 24, 25. Beginning on March 9, 2017,
Downey “began running sales appointments on behalf
of” plaintiff. ECF 33, ¶ 34. Downey expected to be
paid “by close of business, Friday, April 7,
2017.” Id. ¶ 35.
April 5, 2017, Downey received an email from Fabian, titled
“Representative Agreement & Non-Compete
Agreement.” ECF 33, ¶ 36; see also ECF
33-8 at 2-3 (email from Fabian to Downey, dated April 5,
2017). Attached to Fabian's email were unsigned and
undated versions of an Independent Representative Agreement
(“IRA”) and a Non-Compete Agreement
(“NCA”) (the “Agreements”).
See ECF 33-8 at 4-6 (IRA); ECF 33-8 at 7-8 (NCA). In
the body of the email, Fabian stated, inter alia,
that Downey must “execute these agreements” and
“return a scanned copy and the original” to
Fabian “before” Fabian could “issue any
commission payments” to Downey. ECF 33-8 at 2.
to Farm Fresh Direct, “on or about April 5, 2017,
” Farm Fresh Direct entered into an IRA and an NCA with
Clipper City and Downey. ECF 1, ¶ 11. As indicated, on
April 5, 2017, Fabian attached unsigned and undated copies of
the IRA and the NCA to an email sent to Downey. See
ECF 33-8 at 2-8. The text of the IRA and the NCA indicate
they were “entered into as of March 5, 2017.” ECF
33-8 at 7 (NCA); see also Id. at 4 (IRA). However,
there is no indication that the Agreements were executed on
email to Fabian dated April 12, 2017, and titled
“Independent Representative Agreement - Ratified -
4.5.2017.pdf” (ECF 33-10 at 2), Downey attached a copy
of the IRA that was dated April 5, 2017, signed by Downey on
behalf of himself and Clipper City. ECF 33-10 at 4-6.
However, the NCA was not attached to this email. See
email of April 12, 2017 (ECF 33-11), Fabian wrote to Downey
stating, id. at 2: “The noncompete agreement
which is an integral part of this agreement is not
attached.” Downey asserts that he “did not in
good conscience provide ‘Farm Fresh Direct'
(Plaintiff) with a ratified copy of the . . .
‘Non-Compete Agreement.'” ECF 33, ¶ 37.
maintains that Farm Fresh Direct refused to pay him unless
and until he “executed the . . . ‘Non-Compete
Agreement.'” ECF 33, ¶ 40. By email of April
13, 2017 (ECF 33-12 at 2), titled “Notice Regarding
Payroll, ” Fabian wrote to Downey, stating that Farm
Fresh Direct would “need the rest of the documents I
sent you signed prior to payment.”
email dated April 18, 2017 (ECF 33-13), Downey provided
Fabian with a copy of the NCA (ECF 33-13 at 7-8), dated April
5, 2017, which Downey signed on behalf of himself and Clipper
City. Id. at 8. According to Downey, he was
“forced/compelled while under duress” of
nonpayment to sign the NCA, “against his wishes.”
ECF 33, ¶ 40.
and the NCA are central to Count Three of the Complaint,
which alleges breach of contract against Downey and Clipper
City. See ECF 1. The Agreements are also central to
Downey's Counterclaim, which contends, inter
alia, that the IRA and the NCA are unenforceable.
See ECF 33.
plaintiff did not submit the Agreements with the Complaint
(see ECF 1), Downey has submitted versions of the
IRA and the NCA with his Counterclaim. See ECF 33-8
at 4-6 (unsigned and undated IRA); ECF 33-8 at 7-8 (unsigned
and undated NCA). As indicated, Downey signed both the IRA
and the NCA on behalf of himself and Clipper City, and the
Agreements are dated April 5, 2017. See ECF 33-10 at
4-6 (IRA); ECF 33-13 at 7-8 (NCA). Both the IRA (ECF 33-10 at
4-6) and the NCA (ECF 33-13 at 7-8) indicate that Everett was
the agent designated to sign the Agreements on behalf of Farm
Fresh Direct. See ECF 33-10 at 6; ECF 33-13 at 8.
However, no version of the IRA or the NCA submitted to the
Court bears a signature of a Farm Fresh Direct
defines Clipper City as the “Representative” and
Farm Fresh Direct as the “Company.” ECF 33-10 at
4. And, it states: “The COMPANY hereby employs the
REPRESENTATIVE to perform . . . salesman services on behalf
of the COMPANY . . . .” Id. (capital letters
in original); see also ECF 1, ¶ 11. But, the
IRA also specifies that, “[u]nless otherwise agreed,
all work will be performed by Steven Downey.” ECF 33-10
at 4. Additionally, the IRA states, id. at 5-6:
7. CONFIDENTIAL INFORMATION
The REPRESENTATIVE agrees that any and all information
received by the REPRESENTATIVE during the furtherance of the
REPRESENTATIVE's obligations in accordance with this
contract, which concerns the personal, financial or other
affairs of the COMPANY to include written, oral, printed,
web-based or any other form will be treated by the
REPRESENTATIVE in full confidence and will not be revealed to
any other persons, firms or organizations without the prior
oral or written permission of the COMPANY.
This clause will continue in effect for one (1) year after
the termination of this agreement.
The REPRESENTATIVE agrees that it and Steven Downey will
be liable for any damages resulting from a breach of this
text and capital letters in original; italics added); see
also ECF 1 at 3-4.
states that it was “entered into . . . between FARM
FRESH DIRECT . . . (the ‘Company') and CLIPPER CITY
LENDING LLC AND STEVEN DOWNEY (the
‘Representative'), both of whom agree to be bound
by this Agreement.” ECF 33-13 at 7. The NCA further
states, id. (capital letters in original):
NON-COMPETITION. For the duration of the Representative
Agreement and any subsequent agreement executed for the same
or similar purpose and for ONE (1) YEAR after the termination
of such agreements, the Representative shall not work as an
employee, officer, director, partner, consultant, agent,
owner, or in any other capacity in any competition with the
Company. This means that the Representative must not do any
of the above for a COMPANY that PROVIDES HOME FOOD SERVICES
OF ANY TYPE in NORTHERN VIRGINIA, DISTRICT OF COLUMBIA,
MARYLAND AND SOUTHERN
REPRESENTATIVE ACKNOWLEDGMENTS. The Representative
acknowledges that: (a) this Agreement has been specifically
bargained between the Parties; (b) the Representative has had
the opportunity to obtain legal counsel to review this
Agreement; (c) the restrictions imposed are fair, reasonable
and necessary to protect the legitimate business interests of
the Company; and (d) such restrictions will not place an
undue burden upon the Representative's livelihood in the
event of enforcement of the restrictions described.
Fresh Direct avers that Downey and Clipper City acquired
confidential information relating to Farm Fresh Direct's
customers. ECF 1, ¶ 12. Moreover, it asserts that, on or
about April 25, 2017, “Downey and . . . Sinsky filed
with SDAT articles of organization for a competing company
with name [sic] intentionally confusing with Farm Fresh
Direct's, ‘Farm Fresh Direct Direct Home Food
Services, LLC.'” Id. Additionally,
plaintiff asserts that the “filings with SDAT state
that [Farm Fresh Home's] purpose is to sell fresh all
natural food plans and other household items to residential
customers.” Id. ¶ 12.
plaintiff alleges that Downey and Clipper City
“attempt[ed] to open an account with [plaintiff's]
meat supplier.” Id. ¶ 15. And, plaintiff
claims that “Downey and Clipper City have retained
contact information for [plaintiff's] providers and
clients, . . . and have created or are seeking to create
commercial relationships with them in violation of the
Agreement[, ] unfairly completing [sic] with [plaintiff],
including, through the use of the intentionally confusing . .
. ‘Farm Fresh Direct' name.” Id.
¶ 16. According to plaintiff, it has “suffered
damages” as a result of the alleged breach of the
Agreements. Id. ¶ 29.
Fresh Direct avers that, on or about June 16, 2017, upon
learning that Downey and Clipper City violated “the
Agreement, ” Downey and Clipper City were terminated.
ECF 1, ¶ 14. Plaintiff does not specify which agreement,
the IRA or the NCA, was allegedly violated.
Counterclaim, Downey argues that Farm Fresh Direct
“forced” him to sign the IRA and the NCA by
“threatening to withhold” his “Earned
Pay” unless and until he agreed to sign the Agreements.
ECF 33-13, ¶ 41. He asks the Court to