IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

Transcription

1 IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND ) RAYMOND C. GAGNON, JR. ) ) Plaintiff, ) ) v. ) Civil No V ) USPROTECT CORPORATION, et al. ) Judge D. Warren Donohue ) Defendants. ) ) PLAINTIFF S OPPOSITION TO DEFENDANTS MOTION TO DISMISS OR ALTERNATIVELY, FOR SUMMARY JUDGMENT Plaintiff Raymond C. Gagnon, Jr. ( Gagnon ), by and through undersigned counsel, in response and opposition to Defendants Motion to Dismiss or Alternatively, for Summary Judgment ( Defendants Motion ) and Defendants Memorandum of Points and Authorities in Support of Motion to Dismiss, or Alternatively For Summary Judgment (Defendants Memorandum ), states as follows: I. INTRODUCTION On March 26, 2004, Gagnon entered into an Employment Agreement with Defendant USProtect Corporation ( USProtect ). On April 12, 2004, Gagnon began his employment as USProtect s Senior Vice President, reporting directly to Defendant Richard S. Hudec ( Hudec ), USProtect s Chief Operating Officer. As Senior Vice President, Gagnon was responsible for USProtect s business development, marketing, government affairs, and client relations functions. For the first month of his employment with USProtect, Gagnon performed well as he familiarized himself with USProtect and its clients, and the guard force protection industry. Additionally, Gagnon contributed from his very first day of employment to improving and enhancing USProtect s opportunity to increase its presence in the Federal marketplace.

2 On May 12, 2004, Gagnon met with his supervisor, Hudec. At the meeting, Hudec informed Gagnon that the employment relationship between Gagnon and USProtect isn t a good fit, it s just not going to work, and it is best, for both the Company and [Gagnon], that [USProtect and Gagnon] part ways at this time. Hudec assured Gagnon that he was not being fired, and offered Gagnon the full severance package as provided in the Employment Agreement, to include three (3) months compensation and the $20, signing bonus (a total of $63,500.00). Gagnon accepted Hudec s offer and agreed to meet with Mark Machi, General Counsel of USProtect ( Machi ), on May 13, 2004, per Hudec s request, to complete the formalities of the severance agreement. Gagnon met with Machi on May 13, At that meeting, however, Machi refused to honor the terms agreed to the previous day by Hudec and Gagnon. Machi stated that a severance payment in the $20, to $25, range would be appropriate given the circumstances. In fact, Machi related that he would be personally offended if Gagnon were given the $63, that Hudec had promised to Gagnon because, according to Machi, that would... be more than I [Machi] received in annual bonus last year... On May 20, 2004, Gagnon received, via Federal Express, a letter that was back-dated to May 13, 2004 and signed by Nicol M. Sager, Director of Human Resources for USProtect, stating that effective immediately, Gagnon s employment with USProtect was terminated, ostensibly for cause. Despite Gagnon s complete and satisfactory performance of his obligations under the Employment Agreement, USProtect terminated Gagnon s employment, ostensibly for cause. 2

3 II. STANDARD OF REVIEW There are several distinctions between a Motion to Dismiss and a Motion for Summary Judgment. First, the legal standards a court must consider for granting either a motion to dismiss or a motion for summary judgment are distinct. Davis v. DiPino, 337 Md. 642, 648, 655 A.2d 401, 404 (1995). For example, the dismissal of a claim based on a motion to dismiss for failure to state a claim can only be proper if the facts alleged in the Complaint fail to state a cause of action. Id., citing Decoster v. Westinghouse, 333 Md. 245, 249, 634 A.2d 1330, 1332 (1994) (emphasis added). A motion for summary judgment is properly granted only if there is no genuine dispute as to any material fact and the party in whose favor judgment is entered is entitled to judgment as a matter of law. Id., quoting Maryland Rule 2-501(e) (internal quotations omitted); see also Southland Corp. v. Griffith, 332 Md. 704, 712, 633 A.2d 84, 87 (1993). Second, if a motion to dismiss is granted, the court has the discretionary authority to grant plaintiff leave to amend the Complaint to cure any defects. Davis, 337 Md. at 404, citing Maryland Rule 2-322(c)). The court does not possess such discretionary authority after granting summary judgment. Id. Finally, the Maryland Rules convert motions to dismiss into motions for summary judgment if matters outside the pleading are presented to and not excluded by the court. Maryland Rule 2-322(c) (emphasis added); see also Freeburger v. Bichell, 135 Md. App. 680, 763 A.2d 1226 (2000) and Davis, 337 Md. at 404. There are no rules in Maryland which permit the conversion of a motion for summary judgment into a motion to dismiss. Davis, 337 Md. at

4 III. ARGUMENT A. The Court should exclude the Affidavit of Machi from its consideration because the Court s consideration of summary judgment on Count III of the Amended Complaint prior to the completion of discovery would be premature, inappropriate, and unduly prejudicial to Gagnon. With respect to Defendants argument regarding Count III of the Amended Complaint, Defendants have included the Affidavit of Mark Machi for the Court s consideration. USProtect believes that he affidavit sets forth several facts which proves that it could not have possibly wrongfully discharged Gagnon. By including this affidavit, USProtect is attempting to convert Defendants Motion into a motion for summary judgment, and USProtect, in fact, argues for summary judgment in the alternative. Summary judgment should only be granted after there has been adequate time for discovery. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (emphasis added). 1 Gagnon served USProtect with Interrogatories and Requests for Production of Documents on the same day that it was served with the Summons and Complaint in this matter, namely August 23, Although Gagnon has agreed, as a professional courtesy, to extend USProtect s deadline for responding to the discovery requests, the fact remains that USProtect has not yet provided Gagnon with responses to its discovery. Gagnon submits that in the instant case, the court s consideration of Machi s Affidavit would convert Defendants Motion into a motion for summary judgment. Given that Gagnon has not received any responses to its discovery requests, the court s consideration of summary judgment prior to the completion of discovery would unduly prejudice Gagnon. See Green v. H & R Block, Inc., 355 Md. 488, 735 A.2d 1039 (1999) (when a court considers matters outside the 1 Maryland s summary judgment procedure was adopted from the Federal Rules of Civil Procedure; therefore, interpretations of the Federal rules are very persuasive as to the meaning of the Maryland Rules. Metropolitan Mortgage Fund, Inc. v. Basiliko, 288 Md. 25, 27, 415 A.2d 582, 583 (1980). 4

5 pleadings in ruling on a motion to dismiss and the motion, therefore, is considered as one for summary judgment, there is a risk that the non-moving party will not be given a reasonable opportunity to present material that may be pertinent to the court s decision); Boyd v. Hickman, 114 Md. App. 108, 689 A.2d 106 (1991), cert. denied, 346 Md. 26, 694 A.2d 949 (1997) (when the circuit court considers matters outside the pleadings, the court treats the matter as a motion for summary judgment, and the legal effect of the ruling in favor of the moving party is to grant a motion for summary judgment, notwithstanding the court s designation of the ruling as a motion to dismiss). Therefore, Gagnon respectfully requests that this Court use the discretion imparted upon it by Maryland Rule 2-332(c) and exclude the Affidavit of Machi from the court s consideration of Defendants Motion and this response and opposition thereto. 2 Failing to reject Machi s Affidavit would convert the motion into a motion for summary judgment, for which consideration is premature, inappropriate, and unduly prejudicial to Gagnon prior to the completion of discovery. If the Court excludes the Affidavit of Machi from its consideration, this Court must find, as detailed, infra, in III.B., that the factual allegations as pled in Count III of the Amended Complaint and the reasonable inferences that can be drawn from those allegations state a valid claim against USProtect for wrongful discharge. In the alternative and in the event the Court chooses to consider the Affidavits of Machi and Raymond C. Gagnon, Jr., the Court must find, as detailed, infra, in III.C., that a genuine issue of fact exists and that USProtect is not entitled to a judgment as a matter of law. Therefore, Defendants Motion must be denied. 2 Consequently, if the Court excludes the Affidavit of Machi from its consideration, Gagnon would also respectfully request that the Court exclude the Affidavit of Raymond C. Gagnon, Jr. (attached hereto as Exhibit A) from its consideration. 5

6 B. The factual allegations as pled in Count III of the Amended Complaint and the reasonable inferences that can be drawn from those allegations state a valid claim against USProtect for wrongful discharge. Generally, a complaint should contain only statements of fact that are necessary to demonstrate a plaintiff s entitlement to relief. Maryland Rule 2-303(b). The following have no place in a pleading: argument, unnecessary recitals of law, evidence, or documents, or any immaterial, impertinent, or scandalous matter. Id.; Porterfield v. Mascari II, Inc., 374 Md. 402, 430, 823 A.2d 590, 606 (2003) ( A complaint, however, is barred from presenting technical forms of pleading, and shall not include argument [or] unnecessary recitals of law. ) In short, each averment of a pleading must be simple, concise, and direct. Maryland Rule 2-303(b). The Maryland Court of Appeals first recognized the tort of wrongful discharge in Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981). The Adler court, however, dismissed Adler s complaint because it did not meet the pleading requirements for wrongful discharge. Id. at To satisfy the pleading requirements required by the Adler court, a complaint for wrongful discharge must specifically aver the following factual allegations: 1) that the plaintiff was discharged for either refusing to commit an unlawful act, for performing an important public function, or for exercising a legal right or privilege; 2) the precise source of the public policy violated by the discharge; and 3) the conduct which resulted in a violation of the aforesaid public policy. Stanley Mazaroff & Todd J. Horn, Maryland Employment Law 5.01[6] (2d ed. 2004). In Count III of his Amended Complaint at Paragraph 24, Gagnon alleges that his termination was in violation of a clear mandate of public policy in that Gagnon was exercising his legal right and duty by returning the $ bonus and warning USProtect about the apparent illegal reimbursement of personal political campaign contributions via sham employee 6

7 bonuses. Gagnon was terminated in response to and because of his efforts to keep USProtect from violating the Federal Election Campaign Act of 1971 and his refusal to be an accessory to such illegal conduct. Gagnon submits that Paragraph 24, in and of itself, meets the pleading requirements required by the Adler court for wrongful discharge. Nonetheless, Gagnon further alleges in Count III: 1) that he was told by upper management of USProtect that the payment was reimbursement for his personal political campaign contribution to Hal Rogers reelection campaign (Paragraph 21); 2) that he specifically advised and warned USProtect that the $ payment could be perceived or misconstrued as an illegal reimbursement of his personal contribution to Hal Rogers reelection campaign (Paragraph 22); and 3) that he returned the payment from USProtect and enclosed with the letter a personal check made payable to USProtect in the amount of $ (Paragraph 22). In addition, in Paragraph 23, Gagnon quotes the specific provision of the Federal Election Campaign Act of 1971 that is the basis for his claim. Therefore, for the foregoing reasons, this Court must find that the allegations as pled in Count III of the Amended Complaint and the reasonable inferences that can be drawn from those allegations state a valid claim against USProtect for wrongful discharge. USProtect s Motion to Dismiss Count III should be denied. C. USProtect is not entitled to judgment as a matter of law on Count III of the Amended Complaint because genuine issues of fact exist. In the alternative, USProtect argues that it is entitled to summary judgment on Count III because: 1) the Amended Complaint, on its face, demonstrates that the decision to terminate Plaintiff s employment was made prior to the May 14, 2004 date of Plaintiff s alleged letter (Defendants Motion at 2); and 2) Machi s Affidavit and the Exhibits attached thereto establish 7

8 that Plaintiff did not mail his May 14, 2004 letter until May 25, 2004, and that Plaintiff s letter was not received by USProtect until May 26, 2004 (Defendants Motion at 2). In support of its arguments, USProtect makes incorrect assumptions of fact and false statements regarding the allegations in the Amended Complaint. First, USProtect falsely states that in the Amended Complaint Gagnon alleges that the first time he notified USProtect about the inappropriate reimbursement of his personal political campaign contribution was in his May 14, 2004 letter. Defendants Memorandum at 6. Gagnon makes no such allegation in the Amended Complaint. Moreover, in his affidavit, Gagnon states that he first questioned USProtect s actions regarding campaign contributions on April 19, Gagnon further notified Machi on May 13, 2004 regarding his protests to USProtect s actions regarding, inter alia, Federal election law and illegal reimbursement of campaign contributions. Gagnon s May 14, 2004, letter merely represents his first written notification to USProtect regarding inappropriate reimbursement of campaign contributions. Second, USProtect states that it is apparent from the Amended Complaint that the decision to terminate Gagnon was made on or before May 12, However, the Amended Complaint also alleges that, on May 12, 2004, Hudec stated that Gagnon was not being fired. Therefore, the date that USProtect made the decision to terminate Gagnon for cause is not alleged. Obviously, the date USProtect decided to terminate USProtect for cause is of vital importance. In Defendants Motion and Memorandum, USProtect does not allege the date that Gagnon was terminated for cause. Moreover, Gagnon does not know when USProtect terminated him for cause, which provides further proof to the Court that discovery is needed prior to the consideration of summary judgment. Based on the facts known, the decision to terminate Gagnon s employment for cause could not have been made earlier than May 13, 8

9 2004 (the date listed on the Termination letter attached to the Amended Complaint as Exhibit B) or later than May 19, 2004 (the date the Termination letter was mailed to Gagnon via Federal Express overnight shipping). In sum, Gagnon s May 14, 2004 letter was not the first time he notified USProtect of the illegal reimbursement. In fact, USProtect had notice of Gagnon s concerns over its actions related to political campaign contributions as early as April 19, On May 13, 2004, Gagnon specifically warned Machi that USProtect was in violation of Federal election laws. Moreover, on its face, the Amended Complaint shows that the decision to terminate Gagnon for cause did not occur on May 12, 2004; said decision occurred between Gagnon s meeting with Machi on May 13, 2004 and May 19, Based on the foregoing, Gagnon submits that the decision to terminate Gagnon for cause occurred after USProtect had knowledge of Gagnon s refusal to violate the Federal Election Campaign Act of Therefore, a genuine question of fact exists, which precludes the granting of summary judgment in favor of USProtect regarding Count III of the Amended Complaint. C. The factual allegations as pled in Count IV of the Complaint and the reasonable inferences that can be drawn from those allegations state a valid claim against Hudec for tortious interference with contract. The tort of intentional interference with contract is well established in Maryland. Macklin v. Robert Logan Associates, 334 Md. 287, , 639 A.2d 112 (1992) (citing numerous cases). Intentional interference with contract has two manifestations: 1) when a third party s intentional interference with another in his business or occupation induces a breach of an existing contract; or 2) when no contract exists, a third party maliciously or wrongfully infringes upon an economic relationship. Id. at 297 (citing Sharrow v. State Farm Mutual, 306 Md. 754, 763, 511 A.2d 492 (1986) and Natural Design, Inc. v. Rouse Co., 302 Md. 47, A.2d 663 9

10 (1984)). Where a contract between two parties exists, the circumstances in which a third party has a right to interfere with the performance of that contract are more narrowly restricted. Natural Design, 302 Md. at In the instant case, we are concerned with the first manifestation pf this tort because an enforceable Employment Agreement between Gagnon and USProtect exists. There is no cause of action for interference with a contract when suit is brought against a party to the contract. Pope v. Board of Sch. Comm rs of Baltimore City, et al., 106 Md. App. 578, 591, 665 A.2d 713 (1994), citing Wilmington Trust Co. v. Clark, 289 Md. 313, 329, 424 A.2d 744 (1981). The underlying principles for this general rule are that one cannot be liable for tortious interference with its own contract and that a suit for breach of contract is the appropriate remedy. Id., citing Travelers Indem. Co. v. Merling, 326 Md. 329, 343, 605 A.2d 83 (1992) and Wilmington Trust Co., at These principles apply similarly to the employees of parties to contracts. Therefore, when an employee acts within the scope of his employment or as an agent of the employer, the employee cannot be held liable for interfering with the contract. Id., citing Bleich v. Florence Crittenton Servs., 98 Md. App. 123, 147, 632 A.2d 463 (1993) (emphasis added). Nonetheless, Maryland courts recognize that to sustain a claim of intentional interference with a contract against an employee or agent of a party to the contract, there must be an allegation that the employee/agent somehow acted maliciously for his own motives and beyond the scope of his authority without the intent to further the interests of the employer. Id. at (citing Bleich, at ) (emphasis added). In Count IV of the Amended Complaint, Gagnon alleges, inter alia, that Hudec caused USProtect to terminate the Employment Agreement via the Termination Letter. Said termination was wrongful and without cause or legal justification. 10

11 Hudec s actions in causing USProtect to terminate the Employment Agreement were intentional, tortious, malicious, without privilege, and contrary to the interests of USProtect. Based on the totality of the allegations set forth in the Amended Complaint and the reasonable inferences that can be drawn therefrom (i.e., that malicious actions taken by Hudec are per se outside the scope of his authority and employment), Gagnon has successfully pled a claim for tortious interference with contract against Hudec, despite his status as an employee of USProtect. Additionally, Hudec argues in support of his motion to dismiss Count IV that there has never been a single published decision in Maryland holding a company supervisor or other official liable for intentional interference with a contract between that same company and a subordinate employee. Defendants Memorandum at 8. Gagnon is perplexed as to how this observation has any relevance to the issues before the Court with respect to Defendants Motion. Nonetheless, there are numerous cases that discuss tortious interference with contract in the supervisor/employee context, including, but not limited to, Clark v. Maryland Dep t of Public Safety, 247 F. Supp. 2d 773 (D. Md. 2003); Marrs v. Marriott Corp., 830 F. Supp. 274 (D. Md. 1992); Pope v. Board of Sch. Comm rs of Baltimore City, et al., 106 Md. App. 578, 665 A.2d 713 (1994); and Continental Casualty v. Mirabile, 52 Md. App. 387, 449 A.2d 1176, cert. denied, 294 Md. 642 (1982). Hudec further argues that plaintiff has identified nothing that arguably could be called evidence of Mr. Hudec having a personal motive or achieving a personal gain by allegedly bringing about Plaintiffs termination. Defendants Memorandum at 9. As explained more fully above, supra III.B., a complaint should contain only statements of fact that are necessary to demonstrate a plaintiff s entitlement to relief, and each averment of a pleading must be simple, concise, and direct. Maryland Rule 2-303(b). Argument, unnecessary recitals of law, evidence, 11

12 or documents, or any immaterial, impertinent, or scandalous matter have no place in complaints. Id. As such, at this stage of the litigation, Gagnon does not need to provide any proof or evidence of the factual allegations set forth in the Amended Complaint. Finally, Hudec argues that he should not be a defendant in this lawsuit because Gagnon has not set forth a legally sufficient claim against him and because Gagnon has causes of action against USProtect for Hudec s actions. Defendants Memorandum at 9. The availability to Gagnon of remedies against USProtect is irrelevant to the issues to be decided by this Court. As such, the Court should not be persuaded to dismiss Count IV simply because Gagnon has remedies against USProtect. Count IV of the Amended Complaint complies with the pleading requirements for tortious interference of contract when the defendant is an employee of one of the parties to the contract. For the foregoing reasons, Gagnon submits that that the factual allegations as pled in Count IV of the Amended Complaint and the reasonable inferences that can be drawn from those allegations state a valid claim against Hudec for tortious interference with contract. Defendants Motion should be denied. IV. CONCLUSION The factual allegations as pled in Counts III and IV of the Amended Complaint and the reasonable inferences that can be drawn from those allegations state valids claim against USProtect for wrongful discharge and against Hudec for tortious interference with contract. Moreover, USProtect is not entitled to judgment as a matter of law regarding Count III because a genuine issue of fact exists. Defendants Motion must be denied. Respectfully submitted, 12

13 Philip B. Zipin David A. Lucas Zipin & Melehy LLC 8403 Colesville Road Suite 610 Silver Spring, MD (301) Counsel for Plaintiff CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this day of October, 2004, a copy of the foregoing Plaintiff s Opposition to Defendants Motion to Dismiss or Alternatively, For Summary Judgment, and proposed Order, was served, via first-class mail, postage prepaid on: Thomas P. Dowd, Esquire Littler Mendelson, P.C I Street, N.W. Suite 1000 Washington, D.C Counsel for Defendants David A. Lucas 13