Focused Systems Inc v. Aerotek Inc
Filing
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OPINION and ORDER granting 26 Motion for Summary Judgment. Signed by Honorable Henry M Herlong, Jr on 6/2/11.(sfla)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Focused Systems, Inc.,
Plaintiff,
vs.
Aerotek, Inc.,
Defendant.
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C.A. No. 6:10-2899-HMH
OPINION & ORDER
This matter is before the court on Aerotek, Inc.’s (“Aerotek”) motion for summary
judgment. For the reasons below, the court grants the motion for summary judgment.
I. FACTUAL & PROCEDURAL BACKGROUND
Plaintiff Focused Systems, Inc. (“Focused Systems”) brought this action in state court
alleging a claim for tortious interference with a contract against Aerotek. Aerotek removed the
action to this court. Both Aerotek and Focused Systems are staffing companies that serve, in
part, BMW Manufacturing, LLC (“BMW”). On August 8, 2010, Sandra Cunningham
(“Cunningham”) of BMW contacted Chad Martin (“Martin”), an Aerotek account executive, via
email informing him that some individuals were “interested in transitioning from their existing
staffing provider to an alternate company. (Def. Mem. Supp. Summ. J. Ex. 1 (Martin Aff. ¶ 4
& Ex. A).) Cunningham further stated that “[a]t the contractors request, BMW MC is interested
in assisting with the identification of an alternate staffing provider which is able to offer a
comparable compensation and benefit package as exist[s] currently with each individual.” (Id.
Ex. 1 (Martin Aff. Ex. A).) In addition, Cunningham requested that Martin advise whether he
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was interested in speaking to the interested individuals. (Id. Ex. 1 (Martin Aff. Ex. A).) The
next day, Martin replied to the email indicating that he was willing to speak with the interested
individuals about possibly working for Aerotek. (Id. Ex. 1 (Martin Aff. ¶ 5).) Cunningham
responded that she would provide Martin’s contact information to the individuals and they
would “decide if they want[ed] to contact” him. (Id. Ex. 1 (Martin Aff. Ex. C).) Daniel
Burgess (“Burgess”) and Stephen McComas (“McComas”), who were Focused Systems
employees at the time, separately contacted Martin. According to Burgess and McComas, they
had separately contacted several other staffing companies regarding employment prior to
contacting Martin. (Def. Mem. Supp. Summ. J. Ex. 2 (Burgess Aff. ¶ 8) & Ex. 3 (McComas
Aff. ¶ 7).)
Burgess first contacted Martin by email on August 12, 2010, regarding employment
with Aerotek. Burgess wrote
My name is Daniel Burgess, and am [sic] an IT contractor at BMW. I was given
your company’s information by Reco Harpe, after the company that I was
employed with did not sign the Agile 1 contract. So now, with authorization from
BMW and Agile 1, I am able to transition my assignment at BMW to a new
contracting company. I would like to discuss what your company has to offer in
terms of employment. Feel free to contact me, although I am working nights this
week, so may not answer or respond quickly – I will respond as soon as possible.
(Id. Ex. 2 (Burgess Aff. Ex. B).) On August 16, 2010, McComas first contacted Martin by
email, stating:
My name is Stephen McComas and I am a contractor working at BMW. I was told
that BMW would contact you about me looking for another contractor company.
Below is my current information and I was wondering if you could make an offer
to pick me up as part of your team.
(Id. Ex. 3 (McComas Aff. Ex. B).) Aerotek offered to employ McComas and Burgess in the
same position with BMW as they worked for Focused Systems, and they were hired by Aerotek
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on August 29, 2010. (Id. Ex. 1 (Martin Aff. ¶ 11).) McComas and Burgess had employment
contracts with Focused Systems. (Pl. Mem. Opp’n Summ. J. Ex. A (Burgess/Focused Systems
Contract) & Ex. B (McComas/Focused Systems Contract).) However, Martin states that he “did
not become aware that Burgess or McComas had contracts with Focused Systems until after
those employees began working for Aerotek.” (Def. Mem. Supp. Summ. J. Ex. 1 (Martin Aff.
¶ 14).)
Aerotek filed a motion for summary judgment on March 9, 2011. Focused Systems’
memorandum in opposition was filed March 23, 2011. Aerotek filed a reply on June 1, 2011.
This matter is now ripe for consideration.
II. DISCUSSION OF THE LAW
A. Summary Judgment Standard
Summary judgment is appropriate only “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). In deciding whether a genuine issue of material fact exists, the evidence
of the non-moving party is to be believed and all justifiable inferences must be drawn in his
favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[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. Factual disputes that are irrelevant or
unnecessary will not be counted.” Id. at 248. Further, a litigant “cannot create a genuine issue
of material fact through mere speculation or the building of one inference upon another.” Beale
v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). “Where the record taken as a whole could not lead
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a rational trier of fact to find for the non-moving party, disposition by summary judgment is
appropriate.” Monahan v. County of Chesterfield, 95 F.3d 1263, 1265 (4th Cir. 1996).
B. Tortious Interference with a Contract
“The elements of a cause of action for tortious interference with contract are: (1)
existence of a valid contract; (2) the wrongdoer’s knowledge thereof; (3) his intentional
procurement of its breach; (4) the absence of justification; and (5) resulting damages.” Camp v.
Springs Mortgage Corp., 426 S.E.2d 304, 305 (S.C. 1993). “[A]n action for tortious interference
protects the property rights of the parties to a contract against unlawful interference by third
parties.” Threlkeld v. Christoph, 312 S.E.2d 14, 15 (S.C. Ct. App. 1984). “[T]he alleged act of
interference must influence, induce, or coerce one of the parties to the contract to abandon the
relationship or breach the contract. Bocook Outdoor Media, Inc. v. Summey Outdoor Adver.,
Inc., 363 S.E.2d 390, 394 (S.C. Ct. App. 1987), overruled on other grounds by, O’Neal v.
Bowles, 431 S.E.2d 555 (S.C. 1993). In order to maintain a cause of action for interference with
a contract that is terminable at will, “[t]he plaintiff must show that, but for the interference, the
contractual relationship would have continued.” Id.
1. The Existence of a Valid Contract
McComas and Burgess were employed at will pursuant to an employment contract with
Focused Systems at the time Aerotek hired them.1 Focused Systems alleges that McComas and
Burgess breached the noncompetition clause contained in Burgess’ and McComas’ employment
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McComas’ and Burgess’ employment contracts with Focused Systems provided that
Focused Systems had “the right to terminate . . . employment . . . with or without cause at any
time.” (Pl. Mem. Opp’n Summ. J. Ex. A (Burgess Employment Contract) & Ex. B (McComas
Employment Contract).)
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contracts with Focused Systems.2 Therefore, the court finds that, for purposes of summary
judgment, Focused Systems has satisfied the first element.
2. The Wrongdoer’s Knowledge of the Contract
There is no evidence that Martin was aware of the existence of a valid contract that
prohibited McComas and Burgess from seeking employment with Aerotek. Martin states that he
“did not become aware that Burgess or McComas had contracts with Focused Systems until after
those employees began working for Aerotek.” (Def. Mem. Supp. Summ. J. Ex. 1 (Martin Aff. ¶
14).) Focused Systems argues that Aerotek was aware that Burgess and McComas were
contractors who were interested in “transitioning from their existing staffing provider.” (Pl.
Mem. Opp’n Summ. J. 3 Ex. C (Cunningham Email).) Thus, Focused Systems submits that there
“is no dispute that [Aerotek] was aware that McComas and Burgess were under contract with a
different staffing company . . . .” (Id. at 3.) Further, Focused Systems submits that Aerotek’s
contracts also contain a noncompetition clause. (Id. at 4.) However, there is no evidence that
Aerotek was aware of the actual existence of a valid contract. Further, the probability of the
existence of a contract is insufficient to establish that Aerotek had knowledge of the existence of
a valid contract with respect to McComas and Burgess. Therefore, Focused Systems’ claim for
tortious interference with a contract fails. Further, even if this element were satisfied, Focused
Systems has failed to raise any genuine issue of material fact with respect to the remaining
elements as set forth below.
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In its reply, Aerotek challenges the validity of the noncompetition clause in Burgess’
and McComas’ contracts with Focused Systems. However, the court declines to address this
argument because even assuming the clause is valid, Focused Systems’ claim fails as set forth
below. (Reply, generally.)
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3. Intentional Procurement of Its Breach
There is no evidence that Aerotek intentionally procured the breach of Burgess’ and
McComas’ employment contracts with Focused Systems. The only evidence in this case is that
BMW approached Aerotek through Martin to inquire about employment for certain individuals.
McComas and Burgess separately contacted Martin regarding employment and requested that
Aerotek make an offer for employment. (Def. Mem. Supp. Summ. J. Ex. 2 (Burgess Aff. Ex. B)
& Ex. 3 (McComas Aff. Ex. B).) McComas and Burgess have stated in their affidavits that they
would not have remained with Focused Systems. (Id. Ex. 2 (Burgess Aff. ¶ 9) & Ex. 3
(McComas Aff. ¶ 8).)
McComas and Burgess had already spoken with other staffing companies
and were actively looking for new employment. (Id. Ex. 2 (Burgess Aff. ¶ 8) & Ex. 3
(McComas Aff. ¶ 7).) In order to maintain a cause of action for interference with a contract that
is terminable at will, “[t]he plaintiff must show that, but for the interference, the contractual
relationship would have continued.” Bocook Outdoor Media, 363 S.E.2d at 394.
Focused Systems argues that there is a “reasonable inference from the evidence” that
Burgess and McComas’ contractual relationship with Focused Systems would have continued
“because neither McComas nor Burgess did leave Plaintiff, or his position at BMW until after
each had negotiated with Defendant and had been offered a position with Defendant that would
ensure his continued employment at BMW’s facility without a break in pay.” (Pl. Mem. Opp’n
Summ. J. 5.) The court disagrees. There is no evidence to counter McComas’ and Burgess’
statements that prior to contacting Martin, they had already decided to terminate their
relationship with Focused Systems. (Def. Mem. Supp. Summ. J. Ex. 2 (Burgess Aff. ¶ 8) & Ex.
3 (McComas Aff. ¶ 7).) A review of the evidence reveals that Focused Systems had not signed
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the Agile 1 contract with BMW, and as a result, Burgess and McComas were seeking a new
employer. (Def. Mem. Supp. Summ. J Ex. 1 (Burgess Aff. Ex. A & Ex. B).) Further, there is
absolutely no evidence that Aerotek influenced, induced, or coerced either McComas or Burgess
to leave Focused Systems. Bocook Outdoor Media, 363 S.E.2d at 394. To the contrary,
McComas and Burgess contacted Martin and actively sought out employment with Aerotek.
Based on the foregoing, Focused Systems’ claim fails.
4. Absence of Justification
Absence of justification is
conduct that is carried out for an improper purpose, such as malice or spite, or
through improper means, such as violence or intimidation. A party is justified,
however, when acting in the advancement of its legitimate business interests or legal
rights. Furthermore, as long as some legitimate purpose or right exists, the improper
purpose must predominate in order to create liability.
BCD LLC v. BMW Mfg. Co., Nos. 08-1279, 08-1448, 2010 WL 64888, at *5 (4th Cir. Jan. 8,
2010) (unpublished) (internal citations omitted).
Methods of interference considered improper are those means that are illegal or
independently tortious, such as violations of statutes, regulations, or recognized
common-law rules. Improper methods may include violence, threats or
intimidation, bribery, unfounded litigation, fraud, misrepresentation or deceit,
defamation, duress, undue influence, misuse of inside or confidential information,
or breach of a fiduciary relationship.
Duggin v. Adams, 360 S.E.2d 832, 837 (Va. 1987) (internal citations omitted), cited with
approval in, Crandall Corp. v. Navistar Int’l Transp. Co., 395 S.E.2d 179, 180 (S.C. 1990).
Focused Systems argues that Aerotek lacked justification because it was aware of the
noncompetition clauses in McComas’ and Burgess’ contracts and “allowed time worked by
Burgess while still employed by [Focused Systems] and before Burgess had entered into an
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employment agreement with [Aerotek] to be submitted as time worked for” Aerotek. (Pl. Mem.
Opp’n Summ. J. 5.) In addition, Focused Systems makes an ambiguous argument that in hiring
McComas and Burgess, Aerotek breached the provisions of the “BMW Manufacturing Co., LLC
Business Conduct and Ethics Policy,” which provides that “Service contracts may not be entered
into with former BMW Associates (either directly or indirectly) less than two years after their
departure from the Company.” (Id.) It does not appear that this policy is applicable in this case
given that as pointed out by Aerotek, McComas and Burgess never left BMW. Likewise, the
court finds that Aerotek’s determination of Burgess’ hours is not evidence of an improper
purpose or improper means on the part of Aerotek. To the contrary, the change was made at the
request of Burgess. On August 31, 2010, Burgess requested in an email to Martin that his start
date be August 29, 2010, because “Agile 1 time sheet starts on Sunday, and I have time on that
day - this makes Saturday the last day for time on previous company.” (Id. Ex. L (August 31,
2010 Email).) Martin responded, “Yes, that is fine, sorry about that.” (Id. Ex. L (August 31,
2010 Email).) Burgess’ employment agreement with Aerotek reflects a start date of August 29,
2010. (Id. Ex. I (Burgess Employment Agreement).)
Further, Focused Systems alleges that Aerotek used “deceptive practices” because it knew
“that another staffing company at BMW, had McComas and Burgess under contract at BMW”
but “never inquired who the company was so that it could inquire about the current contract and
its terms, including noncompetition language.” (Pl. Mem. Opp’n Summ. J. 6.) The only
conclusion that can be drawn from the evidence is that Aerotek advanced its legitimate business
interests in offering to employ McComas and Burgess. BMW contacted Aerotek asking whether
it would be interested in discussing employment with individuals that were actively seeking a
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new employer. (Def. Mem. Supp. Summ. J. Ex. 1 (Martin Aff. Ex. A).) Burgess and McComas
separately contacted Martin directly and an offer of employment was made and accepted by
them. (Id. Ex. 1 (Martin Aff. ¶ 11) & Ex. 2 (Burgess Aff. ¶ 8) & Ex. 3 (McComas Aff. ¶ 7).)
Focused Systems cites no authority for the proposition that Aerotek, a direct competitor of the
other staffing companies that provide contractors to BMW, had a duty to determine whether
McComas and Burgess were covered under a valid contract with the other staffing company, the
name of the other staffing company, whether there was a noncompetition clause in effect, or
anything else with respect to McComas and Burgess’ employment with Focused Systems. This
is not a situation where Aerotek sought out McComas and Burgess and coerced them away from
their employment with Focused Systems. In sum, there is no evidence of improper means or
improper purpose on the part of Aerotek. Moreover, even assuming that Aerotek had an
improper purpose, it still could not be held liable because any improper purpose would not
predominate over Aerotek’s legitimate business purposes. BCD LLC, 2010 WL 64888, at *5.
Based on the foregoing, Aerotek is entitled to summary judgment on Focused Systems’ claim for
tortious interference with a contract.
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Therefore, it is
ORDERED that Aerotek’s motion for summary judgment, docket number 26, is granted.
IT IS SO ORDERED.
s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
June 2, 2011
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