Meerkreebs v. Astor & Sanders Corporation et al

Filing 21

MEMORANDUM OPINION AND ORDER granting in part and denying in part 12 and 13 Motion(s) to Dismiss; directing that the stay of this case is lifted; directing that defendants answer as to Counts I and II are due by 3/30/2018. Signed by Judge Paul W. Grimm on 3/7/2018. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
GARY MEERKREEBS,

*

Plaintiff,

*

v.

*

ASTOR & SANDERS CORP., et al.,

*

Defendants.
*

*

*

Case No.: PWG-17-695

*
*

*

*

*

*

*

*

*

*

*

MEMORANDUM OPINION AND ORDER
Plaintiff Gary Meerkreebs contends that he was happily working for Indus Corporation
(“Indus”) when Defendants Astor & Sanders Corporation (“Astor”) and Systems Integration and
Development (“Systems”) (together, the “Companies”) approached him about employment,
seeking his expertise with regard to a bid proposal they would be submitting. Compl. ¶¶ 4, 7–8,
16–17, ECF No. 1. 1 Meerkreebs stated the terms of employment he would accept, and the
Companies agreed, but they did not at that time memorialize the terms of the agreement in
writing. Then, three months later, Astor sent him an offer letter that stated that his employment
would be at-will and did not mention the specific terms discussed and agreed to in the interview.
Id. ¶¶ 18–26. Relying on the representations in the interview, Meerkreebs signed the contract,
resigned from Indus, and went to work for the Companies. Id. ¶¶ 26–28. In so doing, he assisted

1

“At this stage, all well-pleaded allegations in a complaint must be considered as true and all
factual allegations must be construed in the light most favorable to the plaintiff.” Nam v. 2012
Inc., No. DKC-15-1931, 2016 WL 107198, at *3 (D. Md. Jan. 11, 2016) (citing Albright v.
Oliver, 510 U.S. 266, 268 (1994); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776,
783 (4th Cir. 1999)).  

the Companies with preparing the bid that was the subject of their discussions prior to
Meerkreebs accepting employment.
As soon as the bid was submitted, the Companies reneged on some of the terms they
agreed to as conditions of Meerkreebs’s employment, and six weeks later, they “temporarily”
terminated his employment, pending approval of the contract for which he had prepared the bid,
even though one of the conditions he set was “that his position . . . not [be] dependent upon the
award of any specific contract.” Id. ¶¶ 29–30, 33. Meerkreebs filed this lawsuit against the
Companies, claiming intentional misrepresentation (Count I), negligent misrepresentation (Count
II), and promissory estoppel (Count III). Id. ¶¶ 35–53. The Companies have moved to dismiss,
ECF Nos. 13 & 14,2 arguing that Meerkreebs cannot plausibly allege reasonable reliance on a
misrepresentation or false statement, which is an element of all of his claims. But because
Meerkreebs has alleged reasonable reliance and otherwise stated claims for negligent and
intentional misrepresentation against the Companies, I will deny the motions.

Meerkreebs

consents to the dismissal of his promissory estoppel claim, and therefore I will dismiss that
claim.
Factual Background
Sadhna Agrawal owns Defendant Astor, and her husband Ajay Agrawal owns Defendant
Systems, another company “housed in the same building.” Compl. ¶¶ 9–11. The Companies
“share a human resources department, as well as a single proposal department, business

2

Systems joined Astor’s motion and provided additional argument, and the parties fully briefed
the motions. ECF Nos. 13-1, 14, 15, 16. After the briefing was complete, Meerkreebs asked to
stay the case for sixty days while his counsel was away on medical leave, ECF No. 17. I
administratively closed the case through February 21, 2018. ECF No. 20. The case is now
reopened, and a hearing on the pending motion is not necessary. See Loc. R. 105.6. 

2 

development department, IT department, and other shared resources,” and the Agrawals “jointly
supervise all [of the Companies’] employees.” Id. ¶¶ 13–14.
Meerkreebs interviewed with the Companies on or about March 25, 2016 and informed
them that “he wanted contract delivery responsibilities, his position could not be tied to a
contract (billable versus overhead), and that his position could not be ‘at risk’ if a contract
ended or was not awarded.” Compl. ¶¶ 18–23. He also stated his requirements for hours, salary,
and telecommuting. Id. ¶¶ 24–25. Systems’s chief executive officer agreed to these terms “and
said ‘no problem.’” Id. ¶¶ 23, 25. Meerkreebs “received on official non-contingent offer of
employment” from Astor, dated June 24, 2016 (“Offer Letter”), accepted the offer, and gave
notice to Indus on June 27, 2016. Id. ¶¶ 26–27. The Offer Letter, which Meerkreebs signed on
June 27, 2016, stated:
It is my pleasure to offer you a position as the Senior Project Manager at
Astor & Sanders Corp. (Astor). . . .
...
This offer is contingent upon satisfactory results of the Astor employee
background screening. . . .
This offer of employment is valid for three days from the date of this
letter. Unless otherwise arranged, your starting date will be July 11, 2016. If you
accept this offer of employment, you will be an at-will employee of Astor. As
such, Astor makes no guarantee of continued employment or employment for a
specific length of time. . . .
Offer Ltr., Astor Mem. Ex. 1, ECF No. 12-1, at 16.3
Meerkreebs began working for the Companies in July 2016 and for two months, he
worked on the bid proposal for them. Compl. ¶ 28. But, as soon as it was submitted, the
3

Astor attached the Offer Letter to its Motion to Dismiss. I may consider this document without
converting the motion to one for summary judgment, because it “was integral to and explicitly
relied on in the complaint and [Meerkreebs does] not challenge its authenticity.” CACI Int’l, Inc.
v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009) (citation omitted). 

3 

Companies refused to honor the terms they agreed to as conditions of Meerkreebs’s employment,
specifically the times he wanted to arrive at and leave work each day and the telecommuting
days he wanted. Id. ¶¶ 29–30. He feels that they hired him for a specific contract and once that
contract’s bid was submitted, they violated the terms that he demanded, and they agreed to. Id.
¶ 31. About six weeks later, the Companies told Meerkreebs that “they [we]re thinking of letting
[him] go temporarily,” while waiting for the contract to be awarded, despite having agreede in
the interview that his employment would not depend on the Companies’ being awarded any
particular contract. Id. ¶ 33.
Standard of Review
The Companies move to dismiss pursuant to Rule 12(b)(6), under which Meerkreebs’s
pleadings are subject to dismissal if they “fail[ ] to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). A pleading must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and must state “a
plausible claim for relief,” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). “A claim has facial
plausibility when the [claimant] pleads factual content that allows the court to draw the
reasonable inference that the [opposing party] is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678.
Discussion
Under Maryland law, 4 reasonable reliance and resulting injury are elements of both
intentional

4

misrepresentation,

also

referred

to

as

fraud

or

deceit,

and

negligent

The parties agree that Maryland law applies. Astor Mem. 4; Systems Mem. 2; Pl.’s Opp’n 9. 

4 

misrepresentation.5 See Belyakov v. Med. Sci. & Computing, 86 F. Supp. 3d 430, 438 (D. Md.
2015) (stating the elements of intentional misrepresentation as “(1) the defendant made a false
representation to the plaintiff, (2) the falsity of the representation was either known to the
defendant or the representation was made with reckless indifference to its truth, (3) the
misrepresentation was made for the purposes of defrauding the plaintiff, (4) the plaintiff relied
on the misrepresentation and had the right to rely on it, and (5) the plaintiff suffered
compensable injury as a result of the misrepresentation” and noting that the allegations must be
particularized (emphasis added)); Martens Chevrolet, Inc. v. Seney, 439 A.2d 534, 539 (Md.
1982) (stating the elements of negligent misrepresentation as “(1) the defendant, owing a duty of
care to the plaintiff, negligently asserts a false statement; (2) the defendant intends that his
statement will be acted upon by the plaintiff; (3) the defendant has knowledge that the plaintiff
will probably rely on the statement, which, if erroneous, will cause loss or injury; (4) the
plaintiff, justifiably, takes action in reliance on the statement; and (5) the plaintiff suffers damage
proximately caused by the defendant’s negligence” (emphasis added)). The Companies contend
that, while Meerkreebs alleges that he relied on the promises the Companies allegedly made in
his interview, his reliance was not reasonable, in light of the written, at-will contract of
employment that followed, and they argue that he fails to allege any injury that resulted from the
changes in his work schedule.6

5

Meerkreebs does not oppose dismissal of Count III, his promissory estoppel claim. Pl.’s Opp’n
14. Accordingly, I will dismiss Count III. 
6

 Astor also argues that the Companies are separate entities, such that it was not reasonable for
Meerkreebs to rely on statements by a Systems employee when entering into an employment
contract with Astor. See Astor Mem. 8 n.3. Systems “does not concede it is a joint employer
with Astor,” and asserts that, “should any portion of Plaintiff’s Complaint move forward, SID
will fully litigate that issue.” Systems Mem. 1. But, Systems does not move to dismiss on that

5 

Specifically, the Companies argue that Meerkreebs “has not (and cannot) allege that his
employment at Astor was not at-will employment, whereby Astor could terminate his
employment at any time, for any reason,” and, because his employment was at-will, he cannot
allege that he reasonably relied on a purported oral promise not to terminate his employment
because of a contract ending or not being awarded. Astor Mem. 5. And, as the Companies see
it, Meerkreebs’s attempt to allege reasonable reliance also fails because he received the Offer
Letter on about June 24, 2016 and signed it on June 27, 2016, months after the Companies
allegedly made the oral promises in March 2016, and before he gave notice to Indus on June 27,
2016. Thus, the Companies argue, it was not reasonable for him to rely on the earlier promises
in lieu of the terms of the Offer Letter he later signed. Id. at 9; Systems Mem. 3.
Meerkreebs concedes that his employment was at-will, but insists that he nonetheless can
state a claim for misrepresentation because, in his view, he reasonably relied on the terms of
employment promised in March 2016 when he resigned from his former position. Pl.’s Opp’n
2–3. According to Meerkreebs, his employment could be terminated at any time, for any reason,
except that the parties had agreed that the reason could not be that a contract ended or was not
awarded.

See id. (“Had Mr. Meerkreebs’ performance been deficient; had Mr. and Mrs.

Agarawal had a personality conflict with Mr. Meerkreebs; or even if Defendants had simply
basis. See id. I find that, through his allegations that the Companies “share a human resources
department, as well as a single proposal department, business development department, IT
department, and other shared resources,” and the Agrawals “jointly supervise all [of the
Companies’] employees,” Compl. ¶¶ 13–14, Meerkreebs sufficiently alleges that the Companies
are joint employers that both participated in the interviewing and hiring process so as to avoid
dismissal on this basis. See Murphy-Taylor v. Hofmann, 968 F. Supp. 2d 693, 725 (D. Md.
2013) (“Although there are various formulations of the test for joint employer or integrated
employer status, the formulations all are directed at ‘analyzing the amount of control the alleged
joint employer had over employees.’ … ‘[C]ourts look to whether both entities exercise
significant control over the same employees.’” (citations omitted)). 

6 

decided that they no longer wanted to have any employees whose last names began with the
letter ‘M’, then there is no dispute that as an ‘at-will’ employee Mr. Meerkreebs could have been
terminated on these bases or for no basis at all. However, the offer made to Mr. Meerkreebs, was
specifically stated, by Ajay Agarawal, the owner of joint employer Defendant SID and the Chief
Technology Officer of joint employer Defendant A&S, to be for a position which was not
contingent on the receipt or maintenance of any individual contract. This was false. Thus, it gives
rise to a misrepresentation claim.”).
It is clear that the Companies misapprehend the nature of Meerkreebs’s claim. The at-will
employment

relationship

does

not

prevent

Meerkreebs

from stating

a

claim for

misrepresentation, as “Maryland recognizes negligent misrepresentation claims in the context of
an at-will employment relationship.” Smith v. Integral Consulting Servs., Inc., No. DKC-143094, 2016 WL 4492708, at *6 (D. Md. Aug. 26, 2016). This is because “[t]he employer’s postemployment right to terminate the employment relationship logically or legally cannot immunize
the employer from liability for a tort committed before the termination occurred.” Id. (quoting
Griesi v. Atl. Gen. Hosp. Corp., 756 A.2d 548, 558 (Md. 2000)). Thus, when an employee (or
prospective employee) claims misrepresentation based on statements that the prospective
employer made, on which the employee relied in resigning from his former position, it is the loss
of the former position, not the termination (or retraction) of the later employment, that is the
injury. See id. at *8.
Injury
Meerkreebs alleges that he “relied upon Defendants[’] misrepresentations in leaving his
former employment and accepting employment with Defendants,” and that he “was harmed
when he was terminated based upon Defendants not having yet secured the APHIS contract

7 

when he was told that his employment was not based upon or contingent upon any one contract.”
Compl. ¶¶ 38–39. Contrary to the Companies’ arguments, see Astor Mem. 5 n.2, Meerkreebs’s
injury does not stem only from the alleged misrepresentations about whether employment was
tied to a contract, and not from the alleged misrepresentations about his work schedule. Rather,
he claims that he was harmed because he left his former employment because of the Companies’
offer, which included a promise not to terminate his employment based on the status of a specific
contract, and specific hours and telecommuting privileges. He alleges that, without those terms,
he would not have left Indus and consequently would not now be without employment. See
Compl. ¶¶ 30, 36–39. Accordingly, I find that Meerkreebs has alleged injury sufficiently with
regard to the alleged misrepresentations, which are to be considered cumulatively, not each as a
basis for recovery. See id.
Reasonable Reliance
As for the reasonableness of Meerkreebs’s reliance, Judge Chasanow’s analysis in Smith,
2016 WL 4492708, is informative. Integral had offered Smith at-will employment in a letter that
“did not disclose that the offer was subject to government approval.” Id. at *2. Smith signed the
offer and resigned from his former position, relocated from Afghanistan to the United States, and
then Integral rescinded the offer of employment because the government did not approve of
Smith being hired to work on the contract. Id. at *2–3. Smith sued for fraud and negligent
misrepresentation (and breach of contract), and Integral, like the Companies in the case before
me, argued that Smith’s “reliance was not justifiable because it was clear from the offer letter
that the employment was at-will.”

Id. at *8.

Noting that “[i]t is well established that a

prospective employee can justifiably rely on pre-offer statements and written offers even in an

8 

at-will context,” the Court stated that the at-will nature of the job offer did not bar his claim and
that Integral’s “argument misstate[d] Plaintiff’s claim,” as
[t]he “essence” of a negligent misrepresentation claim in an at-will employment
context “is not whether the parties formed an employment contract,” but whether
a prospective employer “failed to exercise reasonable care in communicating
information to him that was material to his business decision whether to accept
the offer..., that he relied on those misrepresentations, and suffered injury as a
result of that reliance.”
Id. at *6, *8 (quoting Griesi, 756 A.2d at 557). The Court stated that “Defendant was legally
entitled to terminate Plaintiff’s employment at any time, but it was not entitled to induce Plaintiff
to leave his former position by falsely representing that it had an available non-contingent
position for him.” Id. The Court concluded that the plaintiff’s “reliance was reasonable, as the
misrepresentation was made by Defendant’s recruiter and director of human resources in a
formal offer letter.” Id. at *8.
The facts of Newton v. The Kenific Group, 62 F. Supp. 3d 439 (D. Md. 2014), are similar.
There, Newton interviewed with Kenific and received a letter offer that did not state that it was
contingent upon government approval, and the company “represented that the prospect of
employment was ‘rock-solid.’” Id. at 441. Newton signed the offer and resigned from his former
position, and then Kenific “informed him that he would not be hired,” as the government had not
approved him.

Id.

Newton filed suit against Kenific, alleging, inter alia, negligent

misrepresentation. Id. The Court denied Kenific’s motion to dismiss the claim; with respect to
reasonable reliance, it concluded that Plaintiff’s allegation that “he justifiably relied on a ‘rock
solid’ job offer from an experienced recruiter” was sufficient. Id. at 444.
Here, Meerkreebs, like Smith and Newton, decided to leave his former employment,
relying on the terms of employment he was offered to make that decision. Certainly, Meerkreebs
relied not only on the Offer Letter but also on oral promises made three months prior—terms that
9 

were not reiterated in the Offer Letter that Astor asked him to sign. Indeed, he relied on those
earlier statements to resign from his former position despite having received the Offer Letter that
did not include them. Yet, the promise of the work schedule he wanted and the assurance that
his employment would not be terminated as soon as a certain contract ended were “material to
his business decision whether to accept that offer,” and he has alleged that the Companies “failed
to exercise reasonable care in communicating [that] information” to him, as it caused him to
resign from his former position for employment that did not last. See Griesi, 756 A.2d at 557;
Smith, 2016 WL 4492708, at *8.
The Companies assert that his reliance was unreasonable because the written contract
differed from the terms discussed in the interview. It is true that, “[f]or a plaintiff to have a right
to rely on an alleged misrepresentation, the plaintiff must reasonably believe in the ‘full truth’ of
the misrepresentation,” and “[a] person cannot reasonably believe in the full truth of an alleged
misrepresentation that directly contradicts the terms of a contract to which the person is a
signatory.” Bank of Am., N.A. v. Jill P. Mitchell Living Tr., 822 F. Supp. 2d 505, 536–37 (D.
Md. 2011) (citing James v. Goldberg, 261 A.2d 753, 758 (Md. 1970)). Thus, “reliance on oral
representations is unreasonable when it is contradicted by the written agreement.” CBRE Fin.
TRS, LLC v. McCormick, No. 08-CV-1964, 2009 WL 4782124, at *6 (D. Md. Dec. 8, 2009)
(citing, e.g., Call Carl, Inc. v. BP Oil Corp., 554 F.2d 623, 631 (4th Cir. 1977) (concluding that
the plaintiffs could not have reasonably relied on the alleged misrepresentations because there
was “plainly contradictory contractual language.”); First Union Nat. Bank v. Steele Software
Systems Corp., 838 A.2d 404 (Md. Ct. Spec. App. 2003) (concluding that business could not
have reasonably relied on terms from contract negotiations “because they were contradicted by

10 

the explicit terms of the [contract]”)), aff’d sub nom. CBRE Realty Fin. TRS, LLC v. McCormick,
414 F. App’x 547 (4th Cir. 2011).
But here, the exclusion from the Offer Letter of the terms discussed at the interview does
not make Meerkreebs’s reliance unreasonable, because the oral promises that the Companies
allegedly made were not “directly contradicted by the plain terms of the written agreement.” Id.
Rather, the Offer Letter stated that employment would be at-will, elaborated that “Astor ma[de]
no guarantee of continued employment or employment for a specific length of time,” and it
provided a start date. Offer Ltr. It did not address telecommuting or what Meerkreebs’s hours
would be. Moreover, it did not state that employment was conditioned on any specific contract,
which would have been contrary to Meerkreebs’s understanding of the employment offer, and
therefore made it no longer reasonable for him to rely upon it. See Goode v. Am. Veterans, Inc.,
874 F. Supp. 2d 430, 450 (D. Md. 2012) (noting that “[t]he presumption of at-will employment
‘can be overcome by express or implied terms which show that the parties clearly intended to
create a binding relationship for a specific period of time or until certain conditions occur’”
(quoting Mazaroff, Maryland Employment Law § 3.2, at 166 (1990) (emphasis from Goode
removed)). Thus, the Companies’ written offer of at-will employment was consistent with—not
in contradiction of—their earlier oral promise that Meerkreebs would not be terminated because
a specific contract ended or was not awarded.
And, because there was no contradictory language, this case is unlike Goode, 874 F.
Supp. 2d 430, on which the Companies rely. There, Goode insisted that her employer “made
express promises of job stability to encourage Goode to accept AMVET’s employment offer,” by
“‘assur[ing]’ her that as long as she performed her job responsibilities, she could work at
AMVETS for as long as she wanted, subject to dismissal only for cause.” Id. at 451–52. The

11 

Court concluded that, despite these alleged promises,“[t]here [wa]s nothing in the record that
support[ed] an inference of reasonable reliance, that it was reasonable for Goode to rely on oral
statements so blatantly contradicted by three separate writings . . . that clearly stated the
employment was ‘at will,’” one of which Goode signed. Id. at 452.
Thus, Meerkreebs has sufficiently alleged that his reliance on the Companies’ oral
promises was reasonable because it was reasonable for him to believe that those earlier terms
were a part of the “rock solid” offer of employment that he accepted, and that, while his at-will
employment could be terminated at any time, the reason would not be because the Companies
were not working on a specific contract. See Newton, 62 F. Supp. 3d at 444. Indeed, once he
began working for the Companies, he had the hours and telecommuting days that they promised
in the interview. Clearly, it was reasonable for him to rely on promises that the Companies
actually upheld, albeit only for his first two months.
Candidate Profile
Astor attached Meerkreebs’s Candidate Profile to its Reply, to negate his alleged reliance,
but this attachment, even if considered (which it is not, for reasons explained below), would not
change the outcome. Astor Reply Ex. 1, ECF No. 16. On it, Meerkreebs stated that he “need[ed]
an opportunity that [would] allow [him] to bring [his] Leadership and Infrastructure and
Operations experience to the table,” as his “current contract [would] end[] 7/15 with some
possibility of extension but as a OPs oriented IT professional INDUS currently ha[d] no place for
[him] to go.” Id. As Astor sees it, this statement shows that Meerkreebs did not resign in
reliance on the Companies’ promises but rather because he was “actively looking for” other
employment. See Astor Reply 7.

12 

Preliminarily, the Court need not consider an argument made for the first time in a reply
brief. See Clawson v. FedEx Ground Package Sys., Inc., 451 F. Supp. 2d 731, 734 (D. Md.
2006) (citing United States v. Williams, 445 F.3d 724, 736 n.6 (4th Cir. 2006)). Moreover, I do
not agree with Astor that this document is integral to the Complaint, such that it could be
considered without converting Astor’s motion to one for summary judgment. See Astor Reply 7
n.2. A document is “integral” if it, “by its ‘very existence, and not the mere information it
contains, gives rise to the legal rights asserted.’” Chesapeake Bay Found., Inc. v. Severstal
Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D. Md. 2011) (quoting Walker v. S.W.I.F.T.
SCRL, 517 F. Supp. 2d 801, 806 (E.D. Va. 2007) (emphasis from Chesapeake Bay removed). For
example, “the documents that constitute the core of the parties’ contractual relationship in a
breach of contract dispute” are integral. Id. (quoting Fisher v. Md. Dep’t of Pub. Safety & Corr.
Servs., No. JFM-10-206, 2010 WL 2732334, at *2 (D. Md. July 8, 2010)). Meerkreebs’s
Candidate Profile does not give rise to his claims of misrepresentation or promissory estoppel,
and therefore it is not integral. See id.
Certainly, given that Meerkreebs attached an affidavit to his Opposition to Astor’s
motion and Astor attached the Candidate Profile to its Reply, I could convert Astor’s motion to
one for summary judgment, as both parties had “a reasonable opportunity to present all the
material that is pertinent to the motion,” which is what Rule 12(d) requires prior to conversion of
a motion to dismiss to one for summary judgment. See Fed. R. Civ. P. 12(d); see also Williams
v. Dimensions Health Corp., Inc., No. PWG-16-4123, 2017 WL 5668217, at *3 (D. Md. Nov.
27, 2017) (noting that Rule 12(d)’s requirement is “satisfied when [as here] a party is ‘aware that
material outside the pleadings is before the court’” (quoting Walker v. Univ. of Md. Med. Sys.
Corp., No. CCB-12-3151, 2013 WL 2370442, at *3 (D. Md. May 30, 2013) (quoting Gay v.

13 

Wall, 761 F.2d 175, 177 (4th Cir. 1985))). But, I have “complete discretion to determine
whether or not to accept the submission of any material beyond the pleadings that is offered in
conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to
reject it or simply not consider it.” Kamara v. Prince George’s Cty. Dep’t of Corr., No. ELH-153952, 2017 WL 735549, at *9 (D. Md. Feb. 24, 2017) (quoting 5 C Wright & Miller, Federal
Practice & Procedure § 1366, at 159 (3d ed. 2004, 2011 Supp.)), aff’d, 687 F. App’x 296 (4th
Cir. 2017), cert. denied, No. 17-6899, 2018 WL 942572 (U.S. Feb. 20, 2018). Under these
circumstances, in which the evidence is attached to support an argument presented for the first
time in the reply brief, I will not convert the motion to one for summary judgment See id.; see
also Clawson, 451 F. Supp. 2d at 734 (court typically does not consider argument raised for first
time in reply).
In any event, even if I were to consider this evidence, it would not establish that Astor
was entitled to judgment, because I could not determine as a matter of law that Meerkreebs’s
employment with Indus definitively would have ended on July 15, 2016, given that he alleged
that there was “some possibility of extension.” Nor could I determine as a matter of law that
Meerkreebs would not have continued to seek (and perhaps find) other employment instead of
relying on the Companies’ promises to resign from Indus. Therefore, consideration of the
Candidate Profile would not result in judgment in Astor’s favor.
ORDER
Accordingly, for the reasons stated in this Memorandum Opinion, it is, this 7th day of
March, 2018, hereby ORDERED that
1. The stay of this case IS LIFTED;

14 

2. The Companies’ motions to dismiss, ECF Nos. 12 and 13, ARE GRANTED IN
PART as to Count III only and ARE DENIED IN PART as to Counts I and II;
3. Count III for promissory estoppel IS DISMISSED by consent;
4. Defendants’ answers to Counts I and II for intentional and negligent
misrepresentation are due March 30, 2018.
/S/
Paul W. Grimm
United States District Judge
lyb 

15