United States District Court, D. Maryland
L. Russell, III United States District Judge.
MATTER is before the Court on Defendant Christine M.
Obercian's Motion for Partial Summary Judgment (ECF No.
41) and Plaintiff Aerotek, Inc.'s (“Aerotek”)
Cross-Motion for Summary Judgment (ECF No. 48). This
employment dispute arises from Obercian's December 1,
2016 departure from Aerotek and subsequent employment at
Beacon Hill Staffing Group, LLC (“Beacon Hill”).
The Motions are ripe for disposition, and no hearing is
necessary. See Local Rule 105.6 (D.Md. 2018). For
the reasons outlined below, the Court will grant in part and
deny in part Obercian's Motion and deny Aerotek's
January 13, 2014, Obercian began working for Aerotek, a
Maryland company that provides recruiting and staffing
services to companies across the United States. (Am. Compl.
¶¶ 3, 7, ECF No. 37). Aerotek hired Obercian for
the position of Operations Manager of Clinical Solutions for
its affiliate, Aerotek Scientific, LLC, in Wayne,
Pennsylvania. (Id. ¶¶ 13-14). In her role
as Operations Manager, Obercian focused on the life sciences
field and oversaw particular clients and engagements.
(Id. ¶ 14; McKenna Dep. 13:4-7, May 30, 2018,
ECF No. 44-2 (sealed)).
first day of employment with Aerotek, Obercian signed an
Employment Contract (the “Agreement”) that
contained three provisions which form the core of this
dispute: a Noncompete Provision, a Nonsolicitation Provision,
and an Early Resolution Conference (“ERC”)
Provision. (Am. Compl. ¶¶ 23-29). Under the
Noncompete Provision, Obercian may not:
[F]or a period of eighteen (18) months [after termination of
employment] . . . directly or indirectly engage in or prepare
to engage in, or be employed by, any business that is
engaging in or preparing to engage in any aspect of
AEROTEK's Business for which [Obercian] performed service
or about which [Obercian] obtained Confidential Information
during the two (2) year period preceding termination of
[Obercian's] employment, within a radius of fifty (50)
miles from the office in which [Obercian] worked at the time
[Obercian's] employment terminated or any other office in
which [Obercian] worked during the two (2) year period
preceding termination of [Obercian's] employment.
(Id. ¶ 24; Def.'s Mot. Summ. J.
[“Def.'s Mot.”] Ex. 4
[“Agreement”] ¶ 3, ECF No. 41-4). The
Nonsolicitation Provision prohibited Obercian from:
[c]ommunicat[ing] with any individual, corporation or other
entity which is a customer of AEROTEK and about which
[Obercian] obtained Confidential Information or with which
[Obercian] did business on AEROTEK's behalf during the
two (2) year period preceding termination of [Obercian's]
employment for the purpose of (i) entering into any business
relationship with such customer of AEROTEK if the business
relationship is competitive with any aspect of AEROTEK's
Business for which [Obercian] performed services or about
which [Obercian] obtained Confidential Information during the
two (2) year period preceding termination of employment, or
(ii) reducing or eliminating the business such customer
conducts with AEROTEK.
(Am. Compl. ¶ 24; Agreement ¶ 4). The ERC Provision
required Obercian to give Aerotek:
[W]ritten notice at least fourteen (14) days prior to (a)
violating [the Noncompete Provision or Nonsolicitation
Provision]; and/or (b) challenging the enforceability
of [the Noncompete Provision or Nonsolicitation Provision]
(including subparts), and will participate in a mediation or
in-person conference if requested to do so by AEROTEK within
thirty (30) days of such a request in order to help avoid
unnecessary legal disputes. Should [Obercian] fail to comply
with this Paragraph's notice or mediation/in-person
conference requirement, [Obercian] acknowledges and agrees
that such failure will serve as a waiver of [Obercian's]
right to challenge the enforceability of [the Noncompete
Provision or Nonsolicitation Provision].
(Am. Compl. ¶ 27; Agreement ¶ 13). In September
2014, Obercian transitioned to the role of Practice Lead.
(McKenna Dep. 13:19-14:13). As Practice Lead, Obercian acted
as a liaison between various Aerotek departments to support
customers' needs. (McKenna Dep. 13:11-18).
December 1, 2016, Obercian resigned from Aerotek. (Am. Compl.
¶ 30). Around December 5, 2016, Obercian began working
for Beacon Hill as a Division Director of the Beacon Hill
Pharma division. (Id. ¶ 33). In her position at
Beacon Hill, Obercian recruited and placed individuals in
positions with Beacon Hill clients. (Id. ¶ 34).
She worked in Beacon Hill's King of Prussia, Pennsylvania
office, which is located approximately ten miles from her
former Aerotek office. (Id. ¶ 36).
April 6, 2017, Aerotek sued Obercian. (ECF No. 1). On June 5,
2018, Aerotek filed an Amended Complaint. (ECF No. 37).
Aerotek's Amended Complaint alleges a single Count:
breach of contract (Count I). (Am. Compl. ¶¶
39-48). Aerotek seeks injunctive relief and monetary damages.
(Id. ¶ 48).
20, 2018, Obercian filed an Answer to the Amended Complaint
and Counterclaim (ECF No. 40). Obercian brings a single
Counter claim, alleging a violation of the Maryland Wage
Payment and Collection Law (the “MWPCL”), Md.
Code Ann., Lab. & Empl. [“L&E”]
§§ 3-501 et. seq. (West 2018) (Count I).
(Countercl. ¶¶ 6-12, ECF No. 40). Obercian seeks
monetary damages. (Id. ¶ 12).
filed her Motion for Summary Judgment on July 13, 2018. (ECF
No. 41). On August 3, 2018, Aerotek filed an Opposition and
Cross-Motion for Summary Judgment. (ECF No. 48). Obercian
filed an Opposition and Reply on August 24, 2018. (ECF No.
52). Aerotek filed a Reply on September 24, 2018. (ECF No.
Standards of Review
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 genuine [dispute] as to any material
fact,' since a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
Cross-Motions for Summary Judgment
the parties have filed cross-motions for summary judgment,
the court must “review each motion separately on its
own merits to ‘determine whether either of the parties
deserves judgment as a matter of law.'”
Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.
2003) (quoting Philip Morris Inc. v. Harshbarger,
122 F.3d 58, 62 n.4 (1st Cir. 1997)). Moreover, “[w]hen
considering each individual motion, the court must take care
to ‘resolve all factual disputes and any competing,
rational inferences in the light most favorable' to the
party opposing that motion.” Id. (quoting
Wightman v. Springfield Terminal Ry. Co., 100 F.3d
228, 230 (1st Cir. 1996)). The Court, however, must also
abide by its “affirmative obligation” to
“prevent factually unsupported claims and
defenses” from going to trial. Drewitt v.
Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (quoting
Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128
(4th Cir. 1987)). If the evidence presented by the nonmovant
is merely colorable, or is not significantly probative,
summary judgment must be granted. Anderson, 477 U.S.
Obercian's Motion for Summary Judgment
argues that the Court should grant summary judgment in her
favor as to Aerotek's breach of contract claim because
contract terms she allegedly breached-the Noncompete,
Nonsolicitation, and ERC Provisions-are unenforceable. The
Court first addresses the facial and factual enforceability
of the Noncompete Provision.
prevail in an action for breach of contract, a plaintiff must
prove that the defendant owed the plaintiff a contractual
obligation and that the defendant breached that
obligation.” Taylor v. NationsBank, N.A., 776
A.2d 645, 651 (Md. 2001). Thus, if the restrictive covenants
in the Agreement are unenforceable, Aerotek's claims
would fail as a matter of law because there is no contractual
obligation. The Court can, however, modify them to make them
enforceable under Maryland's “blue pencil”
rule. Even so, a genuine dispute of material
fact exists as to both the Noncompete and the Nonsoliciation
Provisions. Accordingly, the Court will deny Obercian's
Motion as to these provisions.
Maryland law,  whether a restrictive covenant is
enforceable depends upon the unique language of the covenant
at issue, Holloway v. Faw, Casson & Co., 572
A.2d 510, 515 (Md. 1990), and the specific facts of the case,
Ruhl v. F.A. Bartlett Tree Expert Co., 225
A.2d 288, 291 (Md. 1967). To be enforceable, a restrictive
covenant must satisfy the following four requirements:
“(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 employer's interest”; “(3) the
covenant cannot impose an undue hardship on the
employee”; and “(4) the covenant cannot violate
public policy.” Deutsche Post Global Mail, Ltd. v.
Conrad, 116 Fed.Appx. 435');">116 Fed.Appx. 435, 438 (4th Cir. 2004) (citing
Silver v. Goldberger, 188 A.2d 155, 158 (Md. 1963)).
contends that the Noncompete Provision is overbroad because
it would bar her from working for competitors of Aerotek,
regardless of the scope of her position at the competitor.
The Court agrees, but the overbroad portion of the provision
can be excised, making Noncompete Provision enforceable.
Because neither party argues that the Noncompete Provision
violates public policy or imposes an undue hardship on
Obercian, the Court will focus its discussion on
Aerotek's legally protected interest and the Noncompete