Shank et al v. Wiggins et al

Filing 139

MEMORANDUM OPINION AND ORDER GRANTING 91 MOTION for Partial Summary Judgment On Counts Eleven and Twelve of Plaintiffs' Amended Complaint filed by Protection Strategies, Inc.; Judgment for costs is entered in favor of Defendant PSI as to Count Eleven. Signed by Judge Roger W Titus on 4/24/2012. (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

WILLIAM SHANK, et al.
Plaintiffs,
v.
EAGLE TECHNOLOGIES, INC
et al.
Defendants.

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Case No.: RWT 10cv2231

MEMORANDUM OPINION AND ORDER
In Count Eleven of the second1 Amended Complaint [ECF No. 51], Plaintiff Janet Fish
alleges that Defendant, PSI “entered into a written, five-year, contract with the Plaintiff
specifically providing for compensation, ‘Top Secret Clearance’ premium, bonus pay, vacation
pay, and benefits” and breached that contract “by firing her unjustifiably.” See Amend. Compl.
¶¶121 - 125.    On October 6, 2011, Defendant PSI filed a Motion for Partial Summary Judgment
on Counts Eleven and Twelve of Plaintiffs’ Amended Complaint [ECF No. 91] in which it
sought to dismiss particular claims, specifically a breach of contract claim that pertains to
Ms. Fish, and a wrongful discharge claim that pertains to Mr. Shank.

1

Under Federal Rule of Civil Procedure 15(a), a party can only amend a pleading “once as a
matter of course” in accordance with the timing requirements set forth in the rule. In all other
situations, leave of court or the opposing party’s consent is required. See Fed. R. Civ. P. 15(a)(2).
Here Plaintiffs did not file a motion for leave to file their second Amended Complaint or receive
the opposing party’s written consent. Plaintiff also failed to comply with the requirements of
Local Rule 103(6)(C), which mandates that the “the party filing an amended pleading shall file
and serve (1) a clean copy of the amended pleading and (2) a copy of the amended pleading in
which stricken material has been lined through or enclosed in brackets and new material has
been underlined or set forth in bold-faced type.”

On October 31, 2012, Plaintiff Janet Fish filed a Motion to Withdraw Certain Admissions
as Contrary to the Facts [ECF No. 102]. The Court held a hearing on Defendant PSI’s Partial
Motion for Summary Judgment on November 7, 2011, but deferred ruling on Defendant’s
Motion for Partial Summary Judgment as to Count Eleven, Breach of Contract (Janet Fish) until
the issue of whether Ms. Fish could withdraw certain admissions has been resolved.

Plaintiff

Fish’s Motion to Withdraw Certain Admissions has now been decided.2 All the issues have been
fully briefed, and no oral argument is necessary. See Local Rule 105.6.
A Court may enter summary judgment only if there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th
Cir. 2008). Summary judgment is inappropriate if any material factual issue “may reasonably be
resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
JKC Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
“A party opposing a properly supported motion for summary judgment ‘may not rest upon the
mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing
that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346
F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)). “A mere scintilla of proof ...
will not suffice to prevent summary judgment.” Peters v. Jenney, 327 F.3d 307, 314 (4th Cir.
2003). “If the evidence is merely colorable, or is not significantly probative, summary judgment

2

On November 30, 2011, a United States Magistrate Judge granted, in part, and denied, in part
Plaintiff Janet Fish's Motion to Withdraw Certain Admissions as Contrary to the Facts. The
Court allowed Plaintiff to withdraw the admissions that she “never executed a written
employment contract with Eagle Technologies, Inc.” and has “not produced any copy of any
written employment.” However, Plaintiff’s prior admissions that she was “an at-will employee
of Eagle Technologies” and “an at-will employee of PSI” could not be withdrawn. See ECF No.
112.
2 

may be granted.” Liberty Lobby, 477 U.S. at 249–50. (citations omitted). At the same time, the
court must construe the facts that are presented in the light most favorable to the party opposing
the motion. See Scott v. Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
On March 24, 2009, Eagle Technologies sent Plaintiff, Ms. Fish an Offer Letter. See
ECF No. 103-1. The letter specified that Ms. Fish would have the position of Assistant Program
Manager and would start on June 1, 2009, contingent on Eagle Technologies receipt of a contract
award from the Department of Homeland Security known at the National Biodefense Analysis
and Countermeasures Center (NBACC) contract. Id. The letter set forth Plaintiff’s salary and
benefits.

The offer also included a confidentiality clause which prohibited Plaintiff from

disclosing certain information. Id. The letter did not specify a definite term of employment. Id.
On April 6, 2009, Plaintiff signed a document entitled “Receipt & Acknowledgement of Eagle
Technologies, Inc. Employee Handbook.” See ECF No. 103-2.

The document stated that

Ms. Fish had an at-will relationship with Eagle Technologies. Id. The acknowledgement stated
that Eagle Technologies was free to terminate her “at any time with or without reason…at the
discretion of [Eagle Technologies].” Id.
On March 10, 2010, a subsidiary of Defendant PSI entered in to an asset purchase
agreement with Eagle Technologies. See ECF No 72-4. The Asset Purchase agreement included
a schedule that expressly described the assets that PSI was purchasing, and one of those assets
included the NCACC contract.3 See ECF No.72-5. Ms. Fish is deemed to have admitted that she
is an at-will employee of Defendant PSI and Eagle Technologies.

See ECF No. 112;

ECF No. 102-3 ¶¶16 & 20; ECF No. 91-2 ¶¶ 17 & 19.

3

The Court granted Defendant PSI’s Motion for Partial Summary Judgment on the issue of
successor liability, holding that Plaintiffs’ Maryland state claims (Counts 1 through 8 of the
amended complaint) must be dismissed as to PSI, for the period before PSI’s asset purchase with
Eagle Technologies, because PSI is not a successor in interest. See ECF No. 105.
3 

Even without Plaintiff Fish’s admission, under Maryland law, an employee is considered
an at-will employee in the absence of a contract for employment for a definite term. Samuels v.
Tschechtelin, 135 Md. App. 483, 525, 763 A.2d 209, 232 (2000). “[A]t-will employment is a
contract of indefinite duration that can be terminated at the pleasure of either party at any time.”
Hrehorovich v. Harbor Hospital Center, Inc., 93 Md. App. 772, 614 A.2d 1021, 1030 (1992).
Here the evidence indicates that Ms. Fish’s agreement was of an indefinite duration, and
Ms. Fish is deemed to have admitted that she was an at-will employee both Eagle Technologies
and Defendant PSI.    While an at-will employee “may maintain an action for breach of an implied
employment contract if existing general personnel policies or procedures limit the employer’s
discretion to terminate an employee,” Id. at 1031 (citing Haselrig v. Public Storage, Inc.,
86 Md. App. 116, 585 A.2d 294, 298 (1991)), here Plaintiff did not claim in the Amended
Complaint or produce any evidence during discovery that would suggest the existence of an
implicit contract limiting PSI’s right to terminate her employment.
Accordingly, it is this 24th day of April, 2012, by the United States District Court for the
District of Maryland
ORDERED, that Defendant PSI filed a Motion for Partial Summary Judgment
[ECF No. 91] as to Counts Eleven (Breach of Contract—Janet Fish) is GRANTED; and it is
further
ORDERED, that Judgment for costs is entered in favor of Defendant PSI as to Count
Eleven.

/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE

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