Civil No. CCB-00-1667
February 8, 2001
June 29, 2000, Plaintiff Adrian Lofton filed an Amended Complaint against Defendants TLC Laser Eye Centers, Inc., TLC The Laser Center (Delaware), Inc., (collectively referred to as "TLC"), Benjamin S. Boyd, Esq., and J. Reed Laughlin. The Amended Complaint contains seven counts: Count I (Fraud in the Inducement); Count II (Breach of Contract and Duty of Good Faith and Fair Dealing); Count III (Violation of 42 U.S.C. § 1981); Count IV (Defamation); Count V (Tortious Interference with Contract or Prospective Business Advantage); Count VI (Declaration that the Non-Compete is Enforceable); and Count VIII (Violation of 15 U.S.C. § 1).
The Amended Complaint does not list a Count VII. For the sake of convenience, the court refers to the various counts by the headings listed in the Amended Complaint.
On July 17, 2000, this court entered a written order, confirming its opinion and order of July 14, 2000, granting Mr. Lofton's Motion for Preliminary Injunction. On July 21, 2000, TLC filed a Stipulation stating it would not take any formal or informal action in any forum to seek enforcement of Section Two of the TLC The Laser Eye Center Inc.
Confidentiality and Non-Competition Agreement
("Confidentiality and Non-Competition Agreement"). On July 24, 2000, TLC and J. Reed Laughlin, as well as Benjamin Boyd, filed separate Motions to Dismiss the Amended Complaint. See Fed.R.Civ.P. 12(b)(6). Mr. Lofton filed a response to these motions on August 14, 2000. On the same day, Mr. Lofton filed a Motion for Partial Summary Judgment on Count II, Count V, and Count VI. TLC filed a response to the Motion for Partial Summary Judgment on September 5, 2000.
He also filed a motion to disqualify Mr. Boyd and his law firm, which will be denied as moot in light of Mr. Boyd's withdrawal of appearance approved on October 2, 2000.
This court will convert both defendants' Motions to Dismiss to ones for summary judgment under Rule 56 of the Federal Rules of Civil Procedure because a number of matters outside of the pleadings were presented; the plaintiff himself filed a motion for partial summary judgment; and there was a reasonable opportunity to present pertinent materials. See Fed.R.Civ.P. 12(c); Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985). The issues have been fully briefed and no hearing is deemed necessary. See Local Rule 105.6. For the reasons stated below, the Defendants' motions for summary judgment will be GRANTED, except as to Count VI and Plaintiff Adrian Lofton's motion for partial summary judgment will be DENIED.
In this case, both parties submitted a number of exhibits attached to their Preliminary Injunction motions. (See Mot. For Prelim. Inj., Exhs. A-E; Opp. Mot. for Prelim. Inj., Exhs. 1-6.) These exhibits were comprehensive and comply with Rule 56 standards. See 5A Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 1366 (2d ed. 1990). Furthermore, the notice element of the Gay test is satisfied because the parties were aware that material outside of the pleadings (namely, the exhibits included with the preliminary injunction) was before the court. See Gay, 761 F.2d at 177. Finally, although neither party had the opportunity to conduct formal discovery, there was substantial testimony presented at the preliminary injunction hearing, each party has had a reasonable opportunity to submit additional materials, and Mr. Lofton has not specifically identified any additional facts he was prevented from discovering that would have had a material effect on this court's ruling. Nor has he filed an affidavit in compliance with Fed.R.Civ.P. 56(f).
Adrian Lofton is an ophthalmic technician with extensive training and skills in refractive eye surgery. (Am. Compl. at ¶ 8.) Defendant TLC operates a nationwide network of more than fifty laser eye surgery centers in the United States and Canada; Adrian Lofton was hired to serve as an ophthalmic technician at the Rockville, Maryland Center of TLC ("the Rockville Center"). (Aff. of J. Reed Laughlin at ¶ 1-2, Mot. Opp. Prelim. Inj., Def. Ex. 1; Cert. of Adrian Lofton at ¶ 5., Mot. For Prelim. Inj.) TLC offered Mr. Lofton a position as an ophthalmic technician in February 1999. (Am. Compl. at ¶ 11.) TLC formally offered Mr. Lofton employment by a letter dated February 11, 1999 which stated that "as part of your employment agreement with TLC, you will be required to sign a standard Non-Competition Agreement." (Letter of February 11, 1999, Mot. Opp. Prelim. Inj., Def. Ex. 2.) The Confidentiality and Non-Competition Agreement was attached to the offer letter. (Id.) However, Mr. Lofton did not actually sign the Confidentiality and Non-Competition Agreement until April 4, 1999, three days after his arrival at the Rockville Center. (Confidentiality and Non-Competition Agreement, Mot. For Prelim. Inj., Pl. Ex. B.)
There were two key aspects of the Confidentiality and Non-Competition Agreement. Section 1.2 of the Agreement prevented Mr. Lofton from disclosing any confidential, proprietary or trade secret information even after termination. (See Sect. 1.2, Confidentiality and Non-Competition Agreement.) Section 2 of the Agreement prohibited Mr. Lofton from working for any medical clinic, outpatient, ambulatory or diagnostic facility or any other health care facility equipped with an excimer laser or other laser intended to be used for laser vision correction procedures within a fifty mile radius of any TLC site. (See Sect. 2.2 (a-e) of the Confidentiality and Non-Competition Agreement.)
Mr. Lofton claims that J. Reed Laughlin, Executive
Director of the Rockville Center, misrepresented the nature of the Confidentiality and Non-Competition Agreement on at least two occasions. On February 15, 1999 and again on April 4, 1999, according to Mr. Lofton, Mr. Laughlin told Mr. Lofton that TLC required the Agreement "to be signed by every employee but that it was unenforceable and that TLC `did not go after people' on it." (Am. Compl. at ¶¶ 13-14.) Mr. Laughlin denies making these statements. (Aff. of J. Reed Laughlin at ¶ 22.)
Mr. Lofton worked for the Rockville Center from April 1, 1999 to February 1, 2000. (Am. Compl. at ¶¶ 14, 19.) Mr. Lofton was terminated because he failed to attend all of the required seminars during a conference. (Aff. of J. Reed Laughlin at ¶ 17.) A white male employee was simultaneously terminated for the same reason. Five other employees who had committed lesser infractions were reprimanded and placed on probation. Of these reprimanded employees, two were African-American and three were white. (Id.)
Mr. Lofton received two job offers after his termination.
Approximately a week after his termination, Mr. Lofton received a tentative offer of employment from Advanced Eye Care, Inc. that was quickly rescinded. (Am. Compl. at ¶ 21.) On March 21, 2000, Mr. Lofton received an offer of employment from another TLC competitor, Lasik Plus, Inc. ("Lasik"). Lasik eventually placed Mr. Lofton at its site in Gaithersburg, Maryland. (Am. Compl. at ¶ 22.)
After receiving the offer of employment from Lasik, Mr. Lofton returned to TLC to visit Jesse Ewing, a former colleague. At the time, Mr. Ewing was employed by TLC as a financial administrator. (Aff. of J. Reed Laughlin at ¶ 20.) Mr. Lofton recalls that this visit took place without incident. (Cert. of Adrian Lofton at ¶ 14, Mot. For Prelim. Inj.) However, Mr. Laughlin claims a number of sources informed him that Jesse Ewing had copied confidential human resources records on the day of Mr. Lofton's visit. Mr. Laughlin confronted Mr. Ewing about these accusations two days later. During that conversation, Mr. Ewing admitted he copied the records and met with Mr. Lofton on the same afternoon. However, Mr. Ewing denied providing Mr. Lofton with the records. Mr. Ewing resigned his employment on the same day as the conversation. (Aff. of J. Reed Laughlin at ¶ 20.)
On March 31, 2000, TLC's counsel defendant Benjamin Boyd, Esq., of Piper, Marbury, Rudnick and Wolfe, LLP, sent a letter to Mr. Lofton at Lasik, stating that Mr. Lofton had violated the Confidentiality and Non-Competition Agreement by accepting employment with Lasik. In this initial letter, Mr. Boyd stated that Mr. Lofton could not enter into employment with a competitor of TLC within a fifty mile radius of any TLC site through January 27, 2001. (Letter of March 31, 2000, Mot. For Prelim. Inj., Pl. Ex. C.) In the same letter, Mr. Boyd also stated:
"[T]LC also believes, based on reports of certain copying at the Rockville facility, that you are in possession of TLC's proprietary and confidential trade secrets, including, but not limited to, business plans, policy information, marketing strategies, pricing policies, and human resources documents. TLC takes such disloyal and illegal action seriously and demands that you return all such information and documents immediately."
On April 7, 2000, responding to a letter sent by Lasik's counsel, Mr. Boyd reiterated TLC's concerns about the continued employment of Mr. Lofton, particularly the danger of unauthorized disclosure and use of confidential information, and repeated TLC's intention to enforce the Confidentiality and Non-Competition Agreement. (Letter of April 7, 2000, Mot. For Prelim. Inj., Pl. Ex. D.) After receiving this correspondence, Lasik asked Mr. Lofton to leave its employ until the dispute with TLC was resolved. (Cert. of Adrian Lofton at ¶ 16, Mot. For Prelim. Inj.)
After an evidentiary hearing on June 27, 2000, a preliminary injunction was issued by this court on July 14, 2000, enjoining TLC from taking any action to enforce Section 2 of the Confidentiality and Non-Competition Agreement and from publishing to third parties any statement that Adrian Lofton had stolen anything of value from TLC. (See Order of Preliminary Injunction, entered July 17, 2000.)
STANDARD OF REVIEW
Rule 56(c) of the Federal Rules of Civil Procedure provides that:
[Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). In making this determination, the evidence of the party opposing summary judgment is to be believed and all justifiable inferences drawn in his favor. Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997) (citing Anderson, 477 U.S. at 255). The non-moving party may not rest upon mere allegations or denials in his pleading, however, but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 248; Allstate Fin. Corp. v. Financorp, Inc., 934 F.2d 55, 58 (4th Cir. 1991). The "mere existence of a scintilla of evidence in support of the plaintiff's position" is not enough to defeat a defendant's summary judgment motion. Anderson, 477 U.S. at 252.
A. Fraudulent Inducement (Count I)
Mr. Lofton alleges that TLC and its employee, Mr. Laughlin, fraudulently induced him to sign the Confidentiality and Non-Competition Agreement, by stating that the non-compete clause was not enforceable and that TLC would not "go after" employees to enforce it. In order to prove a claim of fraud, a plaintiff must demonstrate that: (1) the defendant made a false representation to the plaintiff; (2) its falsity was either known to the defendant or the representation was made with reckless indifference as to its truth; (3) the misrepresentation was made for the purpose 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 resulting from that misrepresentation. See Alleco Inc. v. The Harry and Jeanette Weinberg Foundation, Inc., 665 A.2d 1038, 1047-48 (Md. 1995) (citations omitted); Parker v. Columbia Bank, 604 A.2d 521, 527 (Md.Ct.Spec.App. 1992). Additionally, a plaintiff must demonstrate that the alleged statements are misrepresentations of material fact, rather than mere opinions, estimates, or puffing. See Parker, 604 A.2d at 528 (citations omitted).
Neither of Mr. Laughlin's statements was sufficiently concrete to constitute a material misrepresentation of fact necessary to sustain a claim for fraud. Assuming for the purposes of this opinion that Mr. Laughlin said the non-compete clause was not enforceable, Maryland courts have consistently held a party's opinion is not a material misrepresentation. See id. (an individual's opinion about his professional experience as well as assurances about value of a house were opinions and not material misrepresentations). Mr. Lofton has not offered any evidence indicating that Mr. Laughlin's opinion reflected TLC policy or guidelines. In fact, the offer letter stated that the Confidentiality and Non-Competition Agreement was a requirement for employment with TLC. (See Offer Letter of February 11, 1999, Mot. Opp. Prelim. Inj., Def. Ex. 2.)
Mr. Laughlin's statement that TLC would not use the Confidentiality and Non-Competition Agreement to "go after" Mr. Lofton cannot be considered a material misrepresentation because it was essentially promissory in nature. As explained by the Maryland Court of Appeals in Appel v. Hupfield, 84 A.2d 94, 96 (Md. 1951), "fraud cannot be predicated upon statements which are promissory in their nature, and therefore an action for deceit will not lie for the unfulfillment of promises or the failure of future events to materialize as predicted." See also Miller v. Fairchild Indus., Inc., 629 A.2d 1293, 1302-03 (Md.Ct.Spec.App. 1993) (statements about the viability of a factory were predictive in nature and therefore were not fraudulent). The imprecise and speculative nature of the statement also undercuts any claim by Mr. Lofton that he could have reasonably relied on it at the time he signed the Agreement. Accordingly, summary judgment is appropriate on Count I.
B. Breach of Contract (Count II)
In Count II of his Amended Complaint, Mr. Lofton contends that TLC breached its contract by failing to provide him with sufficient consideration for signing the Confidentiality and Non-Competition Agreement and also breached the implied duty of good faith and fair dealing with regard to the employment contract as well as the Confidentiality and Non-Competition Agreement. With regard to the first claim, it is well established that where a restrictive covenant is bargained for in exchange for employment, the employment will be sufficient consideration for such an agreement. See Simko, Inc. v. Graymar Co., 464 A.2d 1104, 1108 (Md.Ct.Spec.App. 1983) (noting that if a restrictive covenant is bargained for at the commencement of employment there is consideration for the agreement); see also Becker v. Bailey, 299 A.2d 835, 838 (Md. 1973) (restrictive covenant will be upheld if supported by adequate consideration).
Mr. Lofton next contends TLC breached the duty of good faith and fair dealing in two different ways. Mr. Lofton initially argues his termination violated the implied covenant of good faith and fair dealing inherent in his employment contract with TLC. However, the Maryland Court of Appeals does not recognize a general requirement of good faith and fair dealing in at-will employment situations. See Suburban Hospital, Inc. v. Dwiggins, 596 A.2d 1069, 1077 (Md. 1991). Mr. Lofton, whose employment had no fixed duration, has offered nothing to show that he is not an at-will employee. See Adler v. American Standard Corp., 432 A.2d 464, 467 (Md. 1981) (defining at-will employment).
Despite his apparent status as an at-will employee, Mr. Lofton attempts to create a material question of fact, by alleging there may have been additional sources of contractual rights such as employee handbooks which could have altered his at-will status. However, while documents such as employee handbooks may limit the employer's ability to terminate an employee, such documents "do not change the fundamental nature of the employment relationship as `at will,' but merely require that the employer follow the contract's disciplinary/termination procedures." Deutsch v. Chesapeake Center, 27 F. Supp.2d 642, 644 (D.Md. 1998). The possible availability of additional sources of contractual rights is not material because they would not alter Mr. Lofton's status as an at-will employee. Given that status, Mr. Lofton cannot maintain a cause of action for breach of the implied covenant of good faith and fair dealing with regard to the employment contract, and accordingly, summary judgment is appropriate on this issue.
Mr. Lofton also appears to argue that TLC breached the duty of good faith and fair dealing by unfairly enforcing the Confidentiality and Non-Competition Agreement. Maryland courts have recognized that every contract imposes a duty of good faith and fair dealing in its performance but have not explicitly recognized a separate cause of action relating to this duty. See Food Fair Stores, Inc. v. Blumberg, 200 A.2d 166, 174 (Md. 1964) (recognizing the implied duty of good faith and fair dealing in contracts); Parker, 604 A.2d at 531. Assuming arguendo that Maryland does recognize a separate cause of action for breach of the duty of good faith and fair dealing implied in a contract, that duty does not extend so far as to override or modify explicit contractual terms. Riggs National Bank v. Linch, 36 F.3d 370, 373 (4th Cir. 1994). Nor does it obligate a party to take affirmative actions not required by the contract. Eastern Shore Markets v. J.D. Assoc. Ltd., 213 F.3d 175, 182 (4th Cir. 2000); Edell Assoc. v. Angelos, 106 F. Supp.2d 790, 797 (D.Md. 2000); Parker, 604 A.2d at 531. Mr. Lofton's argument is essentially an attempt to override the terms of the Confidentiality and Non-Competition Agreement. Accordingly, summary judgment is appropriate on this issue.
A number of recent cases in this Court have decided that Maryland does not recognize a separate cause of action for breach of the implied covenant of good faith and fair dealing. See AT Assoc., Inc. v, JHPIEGO, Corp., 104 F. Supp. 523, 534 (D.Md. 2000) (Harvey, J.); Baker v. Sun Co., 985 F. Supp.2d 609 (D.Md. 1997) (Young, J.); Howard Oaks, Inc. v. Maryland Nat'l Bank, 810 F. Supp. 674 (D.Md. 1993) (Smalkin, J.). In Eastern Shores Markets, Inc. v. J.D. Assoc. Limited Partnership, 213 F.3d 175, 184 (4th Cir. 2000), the Fourth Circuit recognized a limited duty of good faith and fair dealing under Maryland law where "a party impliedly promises to refrain from doing anything that will have the effect of injuring or frustrating the right of the other party to receive the fruits of the contract between them."
Whether the Agreement is enforceable is a separate question addressed in Mr. Lofton's claim for declaratory judgment (Count VI).
C. Violation of § 42 U.S.C. § 1981 (Count III)
Mr. Lofton contends that TLC, Mr. Laughlin, and Mr. Boyd denied him the benefits of his employment contract under § 42 U.S.C. § 1981 by terminating him while other similarly situated whites were retained and by unfairly seeking to enforce the Confidentiality and Non-Competition Agreement against him while not enforcing the agreement with respect to other similarly situated whites. See Am. Compl. At ¶ 42.
As was noted in his memorandum, Mr. Boyd is not a party to this contract and, accordingly, summary judgment is appropriate as to Mr. Boyd on this count.
Section 1981 of the Civil Rights Act of 1964 guarantees the right of all persons to make and enforce contracts, which includes the "making, performance, modification and termination of contracts." See 42 U.S.C. § 1981. An at-will employment relationship may serve as a predicate contract for Section 1981 claims. See Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-20 (4th Cir. 1999).
The prima facie elements of a discrimination claim brought under either Section 1981 or Section 1983 are generally the same. See Gairola v. Commonwealth of Virginia Dep't of General Serv., 753 F.2d 1281, 1285 (4th Cir. 1985). Since Mr. Lofton does not present direct evidence of discrimination, his claim is subject to the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227-28 (4th Cir. 1998). Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct 2097, 2106 (2000); Farasat v. Paulikas, 32 F. Supp.2d 249, 253-54 (D.Md. 1998). If he do so, the employer has the burden of articulating a legitimate nondiscriminatory reason for the termination. Farasat, 32 F. Supp.2d at 254.
Assuming arguendo that Mr. Lofton could establish a prima facie case, he has not refuted the offered evidence that TLC terminated him because he failed to attend all of the required seminars at a work-related conference. Indeed, Mr. Lofton admits as much in his Amended Complaint and Certification. See Am. Compl. at ¶¶ 18-19; Cert. of Adrian Lofton at ¶¶ 9-10. Furthermore, Mr. Lofton's discharge did not occur under circumstances that would raise an inference of unlawful discrimination. As noted by Mr. Laughlin in his affidavit, a white employee who also had not attended the required seminars was terminated at the same time as Mr. Lofton. Accordingly, summary judgment is appropriate on Count III.
The white employee, James Howell, testified to this termination at the hearing on June 27, 2000. Although there is no transcript of the hearing, the Court relies on its notes and recollection of the testimony. See also Def. Mot. to Dis. at 9.
D. Defamation (Count IV)
Mr. Lofton claims that the letters of March 31, 2000 and April 7, 2000 prepared by Mr. Boyd on behalf of TLC published defamatory statements about his actions (particularly the theft of confidential documents) to Lasik, a third party in this dispute. In Maryland, to recover for defamation, a plaintiff ordinarily must establish "that the defendant made a defamatory statement to a third person; that the statement was false; that the defendant was legally at fault in making the statement; and that the plaintiff thereby suffered harm." See Rosenberg v. Helinski, 616 A.2d 866, 871 (Md. 1992).
An attorney who publishes a defamatory statement in connection with contemplated litigation, is entitled to an absolute privilege from suit "if the attorney can establish that the matter published has some relation to the anticipated proceeding. Whether the attorney has met his burden of proving the relationship between the defamatory statement and the anticipated judicial proceeding is one of law for the court unless there is a dispute as to whether or not that relationship in fact existed." Arundel Corp. v. Green, 540 A.2d 815, 819 (Md. 1988); Woodruff v. Trepel, 725 A.2d 612, 619 (Md.Ct.Spec.App. 1999). In this case, each letter was addressed to potential parties or their counsel and was clearly related to the potential judicial enforcement of the Confidentiality and Non-Competition Agreement. The purpose of the March 31, 2000 letter was to remind Mr. Lofton of his duties under Section 1.1 and Section 2.2 of the Confidentiality and Non-Competition Agreement. Furthermore, the letter itself mentioned that TLC would "pursue the appropriate legal actions to enforce its contractual rights."
(Letter of March 31, 2000, Mot. For Prelim. Inj., Pl. Ex. C.) See also Arundel Corp., 540 A.2d at 819 (privilege applied where an attorney, prior to commencement of any proceeding, sent a letter containing defamatory statements to a third party). So, to the extent that any potentially defamatory statements were published in the two letters sent to Mr. Lofton, these statements were absolutely privileged, and therefore, summary judgment is appropriate on Count IV.
E. Tortious Interference With Contract or Prospective Business Advantage (Count V)
Lofton also claims that TLC and Mr. Boyd interfered with his prospective contract with Lasik by defaming him to Lasik, threatening to sue his prospective employers, and attempting to enforce an illegal contract. First, the claims fails because the interference alleged is the sending of letters by Mr. Boyd, which, as discussed above, falls within absolute privilege. See Pinto v. Internationale Set, Inc., 650 F. Supp. 306, 309 (D.Minn. 1986) (applying California and Minnesota law). Second, there is no malicious or wrongful interference, particularly with an at-will contract, see Macklin v. Robert Logan Assoc., 639 A.2d 112, 116-20 (Md. 1999), where TLC is acting to enforce a colorable, even if ultimately unenforceable, contractual right. Accordingly, summary judgment is appropriate on this issue.
F. Declaratory Judgment under 28 U.S.C. § 2201 (Count VI)
On July 21, 2000, TLC stipulated and agreed that it would not take any formal or informal action in any forum to seek enforcement of Section 2 of the Confidentiality and Non-Competition Agreement. TLC argues this Stipulation moots the controversy at issue in Count VI of the Amended Complaint, and therefore the Court should dismiss this claim because there is no longer an actual controversy pursuant to the requirement of 28 U.S.C. § 2201. See 28 U.S.C. § 2201 ("In a case of actual controversy within its jurisdiction . . . the court may declare the rights and other legal relations of any interested party . . .") (emphasis added). Mr. Lofton interprets the Stipulation even more broadly, arguing in his Motion for Partial Summary Judgment that Count II, Count V, and Count VI of the Amended Complaint should be dismissed because the Stipulation should be interpreted to mean that the entire Confidentiality and Non-Competition Agreement is unenforceable.
However, neither party's claim is supported by a reading of the Stipulation. Mr. Lofton's expansive claim is refuted by the language of the Stipulation, which states that "the [D]efendants do not hereby make any concession or admission regarding the validity and enforceability of Section 2 in Mr. Lofton's agreement." Mr. Lofton's attempts to characterize the Stipulation as an admission of liability are not persuasive; and therefore, Plaintiff's Motion for Partial Summary Judgment will be denied in its entirety. On the other hand, while TLC does stipulate that it would not enforce Section 2 of the Confidentiality and Non-Competition Agreement, TLC reserves the right to seek relief and enforcement under all provisions and sections of Mr. Lofton's agreement, including the equally restrictive Section 1.2 of the agreement, leaving issues over the interpretation of the contract that could potentially present an actual live controversy on the merits. Accordingly, TLC's motion as to Count VI will also be denied.
G. Antitrust Claim under 15 U.S.C. § 1 (Count VIII)
Finally, Mr. Lofton argues that TLC's Confidentiality and Non-Competition Agreement violated Section 1 of the Sherman Anti-Trust Act. See 15 U.S.C. § 1. Mr. Lofton argues TLC used the Confidentiality and Non-Competition Agreement to restrain trade within the refractive eye surgery market. However, TLC's alleged actions were essentially unilateral and intra-corporate in nature, see Copperweld Corp v. Independence Tube Corp., 467 U.S. 752, 769 (1984), and Mr. Lofton failed to offer any additional evidence of a relationship between two legally distinct entities. See Oksanen v. Page Memorial Hosp., 945 F.2d 696, 703 (4th Cir. 1991). Given Mr. Lofton's failure to address a key element of a Section One claim, summary judgment will be granted on Count VIII.
A separate Order follows.
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. Defendants' motions to dismiss, treated as motions for summary judgment, are GRANTED, except as to Count VI, which is DENIED;
2. Plaintiff's motion for partial summary judgment is DENIED;
3. Plaintiff's motion to disqualify Benjamin Boyd, Esq., as TLC's counsel is DENIED as moot; and
4. Copies of this Order and the accompanying Memorandum shall be mailed to counsel of record.