Kelly Services, Inc. v. De Steno et al
OPINION and ORDER Granting in Part and Denying in Part Plaintiff's 34 Motion for Summary Judgment; and Denying Defendants' 35 Motion for Summary Judgment. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
KELLY SERVICES, INC.,
Case No. 2:16-cv-10698
HONORABLE STEPHEN J. MURPHY, III
DALE DE STENO, et al.,
OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 
AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 
Plaintiff sued Defendants for breach of contract. ECF 1-2, PgID 29. Now before the
Court are Plaintiff's Motion for Summary Judgment, ECF 34, and Defendants' Motion for
Summary Judgment, ECF 35. The Court has reviewed the briefs and finds that a hearing
is unnecessary. See E.D. Mich. LR 7.1(f). For the reasons set forth below, the Court will
grant in part and deny in part Plaintiff's motion and deny Defendants' motion.
Plaintiff Kelly Services, Inc. specializes in providing employment staffing and
consulting services. ECF 1-2, PgID 13. Defendants Dale De Steno, Jonathan Persico, and
Nathan Peters are Plaintiff's former employees. Id. at 13, 16, 22. Defendants signed
employment contracts that entitled Plaintiff to attorney's fees and costs incurred to enforce
the contracts. ECF 34-1, PgID 1209, 1213, 1233. Defendants ultimately took jobs with a
competitor, and Plaintiff brought suit alleging that Defendants violated their non-compete
covenants. ECF 1-2, PgID 29. During the litigation, the Court entered a preliminary
injunction, that expired after a year, enjoining Defendants from working for competitors and
disclosing confidential information. ECF 30, PgID 1145. Plaintiff does not seek to further
enforce the non-compete covenants, so the remaining issue is whether Plaintiff is
contractually entitled to the attorney's fee and costs incurred during the case. ECF 34, PgID
STANDARD OF REVIEW
The Court must grant summary judgment "if the movant shows 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). The moving party must identify specific portions of the record
"which it believes demonstrate the absence of a genuine issue of material fact." Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the
non-moving party may not simply rest on the pleadings, but must present "specific facts
showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis omitted).
A fact is material if proof of that fact would establish or refute an essential element of
the cause of action or defense. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984).
A dispute over material facts is genuine "if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). In considering a motion for summary judgment, the Court must view the facts
and draw all reasonable inferences "in the light most favorable to the nonmoving party." 60
Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987).
Contractual Attorney's Fees
Plaintiff is contractually entitled to attorney's fees. Michigan law governs the dispute
because it was selected by the parties in the employment contracts. ECF 34-1, PgID 1214,
1221, 1227. Under Michigan law, "a party claiming a breach of contract must establish (1)
that there was a contract, (2) that the other party breached the contract[,] and (3) that the
party asserting breach of contract suffered damages as a result of the breach." Dunn v.
Bennett, 303 Mich. App. 767, 774 (2013) (quoting Miller-Davis Co. v. Ahrens Constr., Inc.,
296 Mich. App. 56, 71 (2012)). When it interprets a contract, the Court's primary obligation
is to determine the intent of the parties. Quality Prods. & Concepts Co. v. Nagel Precision,
Inc., 469 Mich. 352, 375 (2003). If the contract's language is unambiguous, it should be
construed and enforced as written. Id.
Plaintiff is entitled to attorney's fees and costs under a plain reading of the contracts.
Defendant De Steno's contract says that he "will pay [Plaintiff's] reasonable attorney's fees
and costs involved in enforcing" the contract. ECF 34-1, PgID 1209. Defendants Persico's
and Peters's contracts state that they "agree to pay any and all legal fees, including without
limitation, all attorneys' fees, court costs, and any other related fees and/or costs incurred
by [Plaintiff] in enforcing" the contracts. Id. at 1213, 1233. The litigation here involves
enforcement of the contracts: Plaintiff brought suit seeking a court order requiring
Defendants to comply with a provision of the contract. Plaintiff therefore has a contractual
right to the attorney's fees and costs incurred to bring the lawsuit.
Defendants make two arguments: (1) the non-compete clauses are unenforceable,
and (2) the preliminary injunction enjoining Defendants did not require a ruling on the
merits.1 Defendants' arguments are well taken, but misplaced. The first argument fails
because the operative provisions before the Court are the covenants to pay attorney's fees
and costs—not the non-compete clauses. And attorney's fees provisions are enforceable
under Michigan law. Zeeland Farm Servs., Inc. v. JBL Enterprises, Inc., 219 Mich. App.
190, 195–96 (1996) ("The parties to a contract may include a provision that the breaching
party will be required to pay the other side's attorney fees and such provisions are judicially
enforceable."). The enforceability of the non-compete clauses is thus irrelevant—especially
because the contracts include "savings clauses" that provide that the rest of the contract
is enforceable even when a particular part of the contract is found unenforceable. ECF 341, PgID 1209, 1215, 1222.
Defendants' second argument fails because a ruling on the merits is not required to
trigger the attorney's fees provisions. The attorney's fees section is distinct from the noncompete clause, and there is no language specifically linking the two. Moreover, the parties
did not include language requiring Plaintiff to prevail before it was entitled to the fees.2
Accordingly, a plain reading of the contracts suggests that the parties intended for
Defendants to pay attorney's fees if Plaintiff merely sought to enforce the contracts. And
enforcement is precisely what the lawsuit involves: Plaintiff, albeit not on the merits,
Defendants also seem to make an argument that judgment on attorney's fees is
procedurally improper at the present stage of litigation. See ECF 29, PgID 1545–46.
Attorney's fees are typically collateral to the merits and awarded after judgment. See Fed.
R. Civ. P. 54(d). But attorney's fees awarded pursuant to a contract are considered
damages, not costs. Central Transp., Inc. v. Fruehauf Corp., 139 Mich. App. 536, 548
(1984). Thus, Rule 54(d) does not govern. Because Plaintiff included a request for the
contractual attorney's fees in its complaint, ECF 1-2, PgID 33, the matter is properly before
In fact, Defendants argue elsewhere that "the alleged agreements at issue here do not
contain a 'prevailing party' contractual provision." ECF 39, PgID 1545.
persuaded the Court to enter an order enjoining Defendants from competing for the
duration of the non-compete clauses.
Accordingly, Plaintiff is contractually entitled to reasonable attorney's fees and costs
it incurred by bringing the suit. Defendants breached their obligation by refusing to pay any
fees and costs, ECF 37, PgID 1447, which resulted in damages. Plaintiff is therefore
entitled to judgment as a matter of law.
The Court has determined that Plaintiff is contractually entitled to reasonable
attorney's fees and costs as a matter of law. The Court next must decide: (1) whether a jury
or the Court is the proper body to decide the amount of damages, and (2) if the Court can
make the determination, what is the proper amount of damages. Understandably, the
parties' briefs primarily focused on the merits of Plaintiff's contractual rights rather than the
damages. Although in most situations the issue would be amenable to settlement or
mediation, the Court understands that Defendants are not inclined to partake in
discussions. The Court therefore will order additional briefing.
WHEREFORE, it is hereby ORDERED that Plaintiff's Motion for Summary Judgment
 is GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment  is
IT IS FURTHER ORDERED that Plaintiff shall FILE no later than 14 days after the
date of this order a supplemental brief addressing whether the Court may assess damages,
and if so, what would be an appropriate amount. Defendants shall FILE a response no later
than 14 days after the date of Plaintiff's filing. Plaintiff may FILE a reply no later than 7 days
after the date of Defendants' response. The briefs may not exceed 10 pages each.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: October 24, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on October 24, 2017, by electronic and/or ordinary mail.
s/David P. Parker
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