COLLEEN KOLLAR-KOTELLY, United States District Judge.
This case amounts to a dispute among real estate brokerage firms and associated real estate professionals — specifically professionals who decamped from one of those firms, Grubb & Ellis, Inc., to a competitor firm — in connection with the lease of a commercial space in Northern Virginia. The parties agree that, on June 8, 2012, Analytic Services, Inc. ("ANSER") entered into a lease for the Skyline Property in Falls Church, Virginia, and a real estate commission payment of $1,225,000 was made to Avison Young — Washington, D.C., LLC ("Avison Young"). But they do not agree on several aspects of what happened prior to the signing of this lease and whether, legally, that creates liability in tort or contract for the several defendants. Plaintiff G&E Real Estate, Inc. — whose relationship to Grubb & Ellis is disputed
The defendants have moved for summary judgment on each of the claims remaining in this action. Before the Court is ANSER's [125] Motion for Summary Judgment with respect to the breach of contract claim, the only remaining claim against it. Also before the Court is the Avison Young Defendants' [127] Motion for Summary Judgment with respect to all claims against those defendants. Upon consideration of the pleadings,
In light of the numerous claims in this case and the two pending motions for summary judgment, the Court provides a brief overview of the factual background of this case — presenting the facts in the light most favorable to Plaintiff, here the non-moving party, as the Court must in considering motions for summary judgment.
In August 2009, ANSER selected Grubb & Ellis as its real estate broker. ANSER's Statement of Material Facts Not in Dispute ("ANSER's Statement"), ECF No. 125-1, ¶ 1. After a series of intervening events discussed below, the agreement was renewed on October 10, 2011. Id. ¶ 2. Pursuant to the renewed agreement, in exchange for the real estate services Grubb & Ellis agreed to provide, ANSER agreed to "openly disclose to all interested parties that [it had] engaged [Grubb & Ellis's] services ... and that ANSER recognizes [Grubb & Ellis] as your exclusive real estate representative." Id. ¶ 5 (quoting 2011 agreement).
On February 20, 2012, Grubb & Ellis filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code. Id. ¶ 14. Through the bankruptcy proceedings, BGC Partners, Inc. ("BGC"), purchased certain assets of Grubb & Ellis.
The Court now briefly introduces several real estate professionals involved with this case:
The Court reserves further discussion of the role of each of these professionals in the real estate transaction at issue in this case for the discussion of the issues below because the parties' disputes regarding those roles go to the core of several of the claims in this case.
As the docket reflects, this case was filed in the Eastern District of Virginia on October 15, 2013. Subsequently, on November 16, 2013, BGC signed an assignment of claims, assigning Plaintiff G&E certain rights pertaining to the commission at issue in this case. Id. ¶ 30; see also id., ex. 6 (Assignment of Claim), ¶¶ C, D. Plaintiff subsequently filed an amended complaint, which referenced the assignment. See Am. Compl., ECF No. 31, ¶ 5.
This case was subsequently transferred to this Court from the Eastern District of Virginia under 28 U.S.C. § 1404(a). See Order dated March 14, 2014, ECF No. 72. Before this case was transferred, Judge Claude M. Hilton granted Defendant ANSER's motion to dismiss as to count X, the statutory conspiracy claim, and dismissed that count as to ANSER. See Order dated Feb. 3, 2014, ECF No. 49. Subsequent to the transfer, this Court denied the Avison Young Defendants' motion to dismiss that same count as to them. See Order dated October 8, 2014, ECF No. 98. After a period of discovery, the several defendants have filed the summary judgment motions that are now pending before the Court.
Summary judgment is appropriate where "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 mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a "material" fact. Id. Accordingly, "[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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be "genuine," meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). In the end, the district court's task is to determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505. In this regard, the non-movant must "do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).
ANSER has moved for summary judgment on the sole claim remaining against it — a breach of contract claim. The Avison Young Defendants have moved for summary judgment on all of the claims against one or more of them: tortious interference with contract, unjust enrichment, breach of contract (with respect to employment and independent contractor agreements), breach of fiduciary duty, misappropriation of trade secrets, and statutory conspiracy. In addition, both ANSER and the Avison Young Defendants argue that Plaintiff's claims fail because Plaintiff cannot prove its damages with reasonable certainty. The Court first addresses ANSER's arguments; then addresses the Avison Young Defendants' arguments as to each claim; and finally addresses the parties' arguments as to damages.
In August 2009, ANSER selected Grubb & Ellis as its real estate broker. ANSER's Statement, ¶ 1. That agreement was renewed on October 10, 2011. Id. ¶ 2. Pursuant to the renewed agreement, which the Court refers to as the Tenant Representation Agreement, ANSER agreed to the following obligations in exchange for various real estate services that Grubb & Ellis was to provide:
ANSER Mot., Ex. 2. The agreement further provided that the term for phase 1 and phase 2 of the project — which are the only phases at issue in this case — was 24 months from the execution of the agreement. The agreement further provided regarding early termination:
Id. In the Amended Complaint, Plaintiff alleges that ANSER breached this agreement when it directed the commission payment from the Skyline Property lease to Avison Young rather than to Grubb & Ellis. Am. Compl., ECF No. 31, ¶ 65.
ANSER argues that Plaintiff G&E has no standing to bring the breach of contract claim against it. To understand ANSER's argument, a quick sketch of the sequence of events underlying this case is helpful: first, through the bankruptcy process, Grubb & Ellis conveyed certain assets and rights to BGC, and second, while this case was pending, BGC then assigned certain claims to G&E. ANSER argues that both links in this chain are broken. ANSER first argues that Grubb & Ellis never conveyed any rights related to the Tenant Representation Agreement to BGC. ANSER next argues that, even if BGC had actually acquired the relevant rights, Plaintiff G&E did not timely obtain those rights such that it can bring related claims in this action. For each of these independent reasons, ANSER argues Plaintiff has no stake in the breach of contract claim and, thus, no standing to bring that claim in this action. Plaintiff responds that each of the links in the chain remain intact, allowing it to bring the claims in this case. The Court addresses, in turn, each link in the chain.
Some basics of bankruptcy law are necessary in order to understand the parties' arguments regarding the first link in the chain — the transfer of rights from Grubb & Ellis to BGC. Under the Bankruptcy Code, a contract that is executory on the date of the bankruptcy petition can be assumed, assigned, or rejected by the bankruptcy estate. See 11 U.S.C. § 365 (establishing parameters for assumption, assignment, and rejection of executory contracts); In re Tornado Pizza, LLC, 431 B.R. 503, 514 (Bankr.D.Kan.2010) ("A debtor may assume a contract under § 365 only when the contract is executory on the date of filing."). The rejection of any executory contract is considered to be a breach of that contract "immediately before the date of the filing of the petition." 11 U.S.C. § 365(g).
ANSER argues that the Tenant Representation Agreement was an executory contract with respect to the bankruptcy proceeding and that it was never assumed by the bankruptcy estate or assigned to BGC. Because the Tenant Representation Agreement was executory but was not assumed or assigned, ANSER argues, BGC had no stake in the contract that it could assign to Plaintiff G&E. Plaintiff responds
As an initial matter, the Court notes that, while Plaintiff's brief is not a model of clarity on this point, the Court understands Plaintiff to be arguing that a material breach prior to the filing of the bankruptcy petition — and only a material breach prior to such filing — renders a contract non-executory. See, e.g., Pl.'s ANSER Opp'n at 14 ("Plaintiff was not required to assume the Brokerage Agreement pursuant to Section 365 of the Bankruptcy Code because the Agreement had already been breached"); id. at 14-15 ("A contract that has terminated or expired prior to the filing of a bankruptcy petition is no longer executory.... Because the Brokerage Agreement had been breached and was therefore terminated prior to G&E's bankruptcy petition, there was nothing left to assume."). Therefore, while Plaintiff describes several events that it claims were material breaches by ANSER — including events after the filing of the bankruptcy petition — the Court will look only to putative breaches that occurred prior to the bankruptcy petition, which was filed at 9:19 P.M. on February 20, 2012. See Bankruptcy petition, In re: Grubb & Ellis Co., et al. (S.D.N.Y. Bankr. 12-10685-mg), ECF No 1. Plaintiff describes the claimed breach as follows:
Pl.'s ANSER Opp'n at 16-17. Plaintiff further summarizes the putative breach:
Id. at 18-19.
In short, Plaintiff is claiming that, between February 13 and 20, 2012, ANSER breached two provisions of the Tenant Representation Agreement: the requirement that "ANSER refer all inquir[i]es regarding real estate matters to our attention" and that "ANSER recognize G&E as
As to the basis for its claim that ANSER breached the obligation to recognize Grubb & Ellis as its exclusive real estate representative, Plaintiff makes three statements:
These claims require further examination. While it is undisputed that McNair left Grubb & Ellis and joined Avison Young on February 13, 2012, the only event that could constitute a breach that Plaintiff identifies during the relevant time period — February 13 to February 20 — in its statement of facts responding to ANSER's motion is the following: "On February 20, 2012, Anser toured the Skyline Property again, this time with Avison Young. This tour included Anser's executives, who indicated that they were `extremely interested' in relocating to the property." Pl.'s ANSER Statement ¶ 25. Plaintiff's statement of facts nowhere indicates any role for McNair in organizing or participating in this tour. Nor, importantly, does the statement of facts include any citation to the record for these propositions. The failure to do so violates the applicable rules, and makes it difficult for the Court to evaluate this proposition. See Fed. R. Civ. P. 56(c)(1) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials"); LCvR 7(h)(1) ("An opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement."). That said, the Court acknowledges that in responding to the Avison Young's motion for summary judgment, Plaintiff supports a similar proposition with a citation to an email sent from Josh Peyton to Bruce McNair on February 20, 2012, at 7:44 p.m. See Pl.'s Avison Young Statement ¶ 42 (citing Diamond Dep., Ex. 19). The entire body of the email (excluding footer text) is as follows:
Diamond Dep., Ex. 19, ECF No. 129-3. As an initial matter, the Court notes that this email provides no support for Plaintiff's statement that McNair organized the tour or that McNair had any interactions with ANSER during the period from February 13 to February 20, 2012. It is clear from the email that McNair was not personally present during the tour. Accordingly, what remains of Plaintiff's claim of a pre-petition breach is ANSER's participating in a tour of the Skyline Property with Josh Peyton, of Avison Young, without participation from any representatives of Grubb & Ellis.
In response, ANSER emphasizes the collaboration between Grubb & Ellis and Avison Young prior to this tour. Specifically, ANSER emphasizes the history of collaboration between Peyton and McNair on the ANSER project — even after Peyton left Grubb & Ellis for Avison Young in 2010. See ANSER's Reply at 7-8 (citing Avison Young Defs.' Statement, ¶¶ R-W; Diamond Dep. at 64, 70-71). After Peyton left Grubb & Ellis, Peyton continued to participate in meetings with ANSER and was copied on Grubb & Ellis communications that included work product regarding ANSER. See id. In addition, Diamond stated in his deposition testimony as Plaintiff's corporate representative — and as someone who never left Grubb & Ellis for Avison Young — that both he and McNair viewed Peyton as part of the ANSER team even though Peyton was working at Avison Young. Diamond Dep. 65:16-20. McNair stated he viewed Peyton as the lead on the ANSER account notwithstanding his affiliation by Avison Young. None of this is controverted by Plaintiff.
This background is important to understanding the events of February 2012 and to resolving whether the February 20, 2012, tour was a material breach of contract. In short, the following facts are uncontroverted. Since 2010, ANSER worked together with Peyton, an Avison Young affiliate, and with McNair and other Grubb & Ellis affiliates on their leasing project. On February 8, 2012, ANSER representatives participated in a tour of the Skyline Property with McNair, then a Grubb & Ellis affiliate. See Pl.'s ANSER Statement ¶ 25. On February 13, 2012, McNair left Grubb & Ellis and joined Avison Young. On February 20, 2012, ANSER representatives participated in a tour of the Skyline Property with Peyton, an Avison Young affiliate — apparently without any participation by Grubb & Ellis affiliates. See id. ¶ 23.
For that reason alone, Plaintiff has no standing to pursue a breach of contract claim against ANSER. Accordingly, the Court need not address ANSER's secondary argument that, even if the contract had been breached prior to the bankruptcy petition, that it was an executory contract because Grubb & Ellis had taken no steps to terminate the contract prior to the petition.
Even though the Court has concluded that Plaintiff has no standing to pursue a contract claim against ANSER because BGC never acquired that claim, as explained above, the Court nonetheless addresses ANSERS's argument that Plaintiff G&E has no standing to bring the contract claim because Plaintiff had not been assigned the claim by BGC as of the commencement of this case. The Court does so not only in the interest of thoroughness but also because of the potential ramifications for the other claims in this case.
ANSER argues that Plaintiff's standing should be assessed as of the date this action was initiated and, therefore, Plaintiff has no standing to bring the claims against it. Plaintiff responds that its standing should be measured by reference to the Amended Complaint and, because it had standing as of that date, it has standing to bring this action. For the reasons explained below, the Court agrees with Plaintiff and concludes that standing should be measured as of the date of the operative complaint — here, the Amended Complaint filed December 23, 2013. Therefore, Plaintiff G&E can assert in this case any claims assigned to it by BGC that BGC could have asserted absent the assignment.
With respect to the relevant facts, there is no dispute. Plaintiff filed this action on October 15, 2013. Plaintiff filed its First Amended Complaint on December 23, 2013, ECF No. 31. Both the original complaint and the First Amended Complaint included the following allegation: "On April
Neither the Supreme Court nor the D.C. Circuit Court of Appeals has directly resolved the question in this case: whether the date of the commencement of an action or the date of the operative complaint is the relevant date for determining standing. Moreover, the Court acknowledges that there is a tension between the Supreme Court's statements regarding related questions. Plaintiff highlights the Supreme Court's statement in Rockwell International Corp. v. United States that, "when a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction." 549 U.S. 457, 473-74, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007). By contrast, ANSER emphasizes the Supreme Court's statement in Grupo Dataflux v. Atlas Glob. Grp., L.P., that the time of filing rule "measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing — whether the challenge be brought shortly after filing, after the trial, or even for the first time on appeal." 541 U.S. 567, 570-71, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004). But neither case definitively answers the question presented here — whether to look to the state of things at the time of the original complaint or at the time of the filing of an amended complaint for evaluating standing in a diversity case. Nor does the application of Rockwell by the D.C. Circuit Court of Appeals in Mohammadi v. Islamic Republic of Iran resolve this question. 782 F.3d 9, 18 (D.C.Cir.2015) (holding that district court did not abuse its discretion in declining to consider "jurisdictional bases set forth in prior iterations of the complaint").
Notwithstanding the tension in the case law, the Court is persuaded that the better reading of the applicable law is that the Court must measure standing by the state of the world as of the date of the Amended Complaint. The Court is particularly persuaded by the thorough analysis presented by the Ninth Circuit Court of Appeals in Northstar Financial Advisors Inc. v. Schwab Investments, 779 F.3d 1036, 1046 (9th Cir.), as amended on denial of reh'g and reh'g en banc (Apr. 28, 2015), cert. denied, ___ U.S. ___, 136 S.Ct. 240, 193 L.Ed.2d 133 (2015). In Northstar, the Ninth Circuit considered whether a plaintiff had standing in a circumstance in which an assignment of claims was filed between the filing of the case and the filing of an amended complaint. 779 F.3d at 1043-44. After conducting a thorough analysis of the relevant Supreme Court precedent and decisions of other federal courts
The Ninth Circuit is not alone in coming to this conclusion. In an unpublished decision, the Fourth Circuit Court of Appeals concluded that standing could be based solely on events that occurred between the original filing of a complaint and the filing of an amended complaint. Daniels v. Arcade, 477 Fed.Appx. 125, 130-31 (4th Cir. 2012). Indeed, in many Circuits, as a general rule, supplemental pleadings may be used to remedy defects with subject matter jurisdiction, U.S. ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 5 (1st Cir. 2015) (citing cases), and standing is a "threshold jurisdictional requirement," Bauer v. Marmara, 774 F.3d 1026, 1031 (D.C.Cir.2014).
The case before this Court, like Northstar and Daniels, concerns the filing of an amended complaint.
Plaintiff next claims that the Avison Young Defendants are liable for tortious interference with contract with respect to the 2011 Tenant Representation Agreement by acting through improper means to induce ANSER to terminate and breach the Agreement and to induce ANSER to direct the related commission payment to Avison Young. See Am. Comp. ¶ 71. Under Virginia law,
Given this framework, the Avison Young Defendants argue that (1) Plaintiff has no standing to pursue this claim because BGC was never assigned the Tenant Representation Agreement and (2) Plaintiffs cannot show that the Avison Young Defendants used improper methods to induce ANSER to breach the contract. With respect to the first argument, Plaintiff responds that the contract was materially breached prior to the bankruptcy petition and that the associated claims, therefore, were properly assigned to BGC and then to Plaintiff. With respect to the second argument, Plaintiff responds that it has identified several improper methods used by the Avison Young Defendants. The first argument essentially repeats the arguments of ANSER and Plaintiff with respect to the breach of contract claim against ANSER. The resolution of that dispute is therefore dispositive of the tortious interference claim as well. As explained above, the Tenant Representation Agreement was executory at the time of the bankruptcy petition, and it was neither assumed by the bankruptcy estate nor assigned to BGC. Therefore, BGC would not have had standing to pursue the tortious interference claim and, even though BGC assigned any such claims to Plaintiff prior to the filing of the Amended Complaint, Plaintiff does not have standing to pursue that claim in this action. Therefore, there is no need for the Court to address the parties' arguments regarding the use of improper methods. Because Plaintiff lacks standing to bring this claim, the Court grants summary judgment to the Avison Young Defendants with respect to the tortious interference claim.
Under Virginia law,
The Court now turns to Plaintiff's claims that McNair and Roehrenbeck breached their employment agreements with Grubb & Ellis and that Peyton breached his independent contract agreement with Grubb & Ellis. The Court concludes that claims against McNair and Roehrenbeck survive summary judgment but that the claim against Peyton does not.
The Court addresses the claims against McNair and Roehrenbeck jointly because the legal arguments overlap. Plaintiff claims that McNair materially breached his Employment Agreement by providing Grubb & Ellis' confidential information and trade secrets to Avison Young; by wrongfully diverting the ANSER business and the subsequent Skyline commission away from Grubb & Ellis; and by concealing business opportunities when he failed to provide Grubb & Ellis a report identifying the ANSER transaction upon his departure from Grubb & Ellis. Plaintiff claims that Roehrenbeck breached his employment agreement by providing to Avison Young confidential and proprietary information belonging to Grubb & Ellis that he acquired while an employee of Grubb & Ellis. With respect to both McNair and Roehrenbeck, the Avison Young Defendants argue that none of the provisions that Plaintiff claims McNair and Roehrenbeck breached were applicable because McNair resigned with adequate justification. Specifically, they argue that McNair resigned with adequate justification because Grubb & Ellis failed to pay him the retention bonus that it was obligated to provide in January 2012. Plaintiff responds that McNair and Roehrenbeck cannot rely on the adequate justification clause because McNair had breached his employment agreement before Grubb & Ellis failed to pay the retention bonus. The Avison Young Defendants respond, in turn, that Plaintiff has not identified evidence of a material breach by McNair prior to the failure to pay the retention bonus. In short, the resolution of these arguments depends wholly on whether Plaintiff has identified sufficient evidence of a material breach by McNair prior to Grubb & Ellis' failure to pay his bonus.
As the Avison Young Defendants point out, it is not sufficient for Plaintiff to state that "[a]t trial, it will show that McNair materially breached his employment agreement." Pl.'s AY Opp'n at 25. In opposing a motion for summary judgment, a party has the burden "to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories,
Plaintiff identifies three bases for a breach by McNair: (1) that "McNair conspired with Peyton since at least April 2011 to `transition' the Anser representation to Avison Young while McNair was still working for [Grubb & Ellis]"; (2) that McNair and Peyton "convinced Sean Welch of Anser to work with them in an effort to transfer the Anser representation to Avison Young"; and (3) that "McNair and Peyton cut Brett Diamond out of the communications loop, precluding his participation in the Anser transaction." Pl.'s AY Opp'n at 25.
With respect to the claim that McNair conspired with Peyton to transition the ANSER account, the Avison Young Defendants respond that there is no evidence that McNair ever spoke with anyone at ANSER about transitioning the account. The Court agrees with the Avison Young Defendants as far as this statement goes — that the evidence shows that only Peyton contacted anyone at ANSER regarding a potential transition. However, the Avison Young Defendants do not respond to Plaintiff's claim that McNair conspired with Peyton regarding a potential transition. With respect to this claim, Plaintiff points to some evidence that McNair engaged with Peyton in conversations about potentially suggesting a transition of the Tenant Representation Agreement from Grubb & Ellis to Avison Young. See Pl's Avison Young Statement ¶¶ 14, 15, 22, 23 (citing portions of the record). Upon reviewing the portions of the record cited by Plaintiff, the Court concludes that there is a genuine issue of material fact as to whether McNair conspired with Peyton regarding transitioning the ANSER account and thus, whether McNair breached his contract prior to the failure to pay him his retention bonus.
With respect to Plaintiff's claim that McNair and Peyton convinced Sean Welch of ANSER to work with them to transition the ANSER arrangement, the Court agrees with the Avison Young Defendants that Plaintiff has presented no evidence that McNair himself attempted to convince Welch to pursue a transition of the agreement. However, insofar as Plaintiff is claiming that McNair worked with Peyton for him to convince Welch to do so, the Court concludes that Plaintiff has presented evidence of McNair's role such that there is a genuine issue of material fact as to that claim.
Finally, with respect to Plaintiff's claim that McNair and Peyton cut Diamond "out of the communications loop," the Court concludes that there is a genuine issue of material fact about whether McNair cut Diamond out of the loop — in such a fashion that would be a material breach of the
In sum, because there is a genuine issue of material fact with respect to whether McNair breached his employment agreement prior to Grubb & Ellis' failure to pay his retention bonus, the Court denies the Avison Young Defendant's motion for summary judgment with respect to the breach of contract claims against McNair and Roehrenbeck.
Turning to the breach of contract claim against Peyton, the Court comes to the opposite conclusion — compared to the claims against McNair and Roehrenbeck — and the Court grants summary judgment to Peyton on this claim. Plaintiff claims that Peyton materially breached his independent contract agreement "by wrongfully diverting the ANSER business, which he encountered while working with Grubb & Ellis, away from Grubb & Ellis and conducting that business in the name of Avison Young." Am. Compl. ¶ 100. Plaintiff essentially argues that Peyton violated his independent contractor agreement by using confidential information regarding the ANSER account that he obtained while affiliated with Grubb & Ellis in attempting to divert the ANSER account from Grubb & Ellis to Avison Young. The Avison Young Defendants respond that any confidentiality obligations do not cover information Peyton received after he left Grubb & Ellis in March 2010, that confidentiality obligations do not encompass information Peyton received while he was affiliated with Avison Young, and that Plaintiff has not identified any misuse of information that was subject to confidentiality agreements. The Court agrees with the Avison Young Defendants.
The Court first notes that Plaintiff cites to no facts in the section of its memorandum of points and authorities regarding Peyton's putative breach that would support its claim that Peyton actually breached the duties applicable to him. It identifies only what they claim are those obligations, not those acts that constitute breaches of those obligations. Moreover, Plaintiff wholly ignores the fact that Peyton collaborated with McNair, Diamond, and others at Grubb & Ellis after his transition to Avison Young. There is no evidence that those activities would constitute a breach of any reasonable reading of the independent contractor agreement. In addition, insofar as Plaintiff seeks to recover from actions taken after the apparent end of collaboration with Grubb & Ellis — after McNair and Roehrenbeck left Grubb & Ellis for Avison Young — that claim fails because Plaintiff has not identified any confidential information or trade secrets that Peyton received while he was still a Grubb & Ellis affiliate that he used in seeking to "divert" the ANSER account from Grubb & Ellis to Avison Young. As to the period after Peyton left Grubb & Ellis for Avison Young, various Grubb & Ellis affiliates shared information with Peyton during this period of collaboration, and the use of this information by Peyton cannot be the basis for Plaintiff's breach of contract claim. Because Plaintiff has identified no evidence
Plaintiff claims that McNair breached his fiduciary duty to Grubb & Ellis — his onetime employer — by (1) conspiring to induce ANSER to terminate its Agreement with Grubb & Ellis, (2) soliciting ANSER to enter into a brokerage agreement with Avison Young, and (3) directing the Skyline commission to Avison Young instead of to Grubb & Ellis. See Am. Compl. ¶ 105. The Avison Young Defendants argue that Plaintiff has not identified any evidence of these putative breaches. They also argue, with respect to the claim regarding the Skyline commission, that post-employment conduct cannot be the basis for a breach of fiduciary duty claim.
With respect to the claim that McNair conspired to induce ANSER to terminate its agreement with Grubb & Ellis, the Court agrees with Plaintiff that there is a genuine issue of material fact. As discussed above with respect to the breach of contract claim against McNair, Plaintiff has identified evidence that shows that McNair engaged in discussions regarding a possible transition of the Tenant Representation Agreement to Avison Young while he was a Grubb & Ellis employee.
However, with respect to the claim that McNair solicited ANSER to enter into a brokerage agreement with Avison Young, the Court agrees with the Avison Young Defendants. Plaintiff has not identified any evidence regarding attempts by McNair himself to solicit ANSER to transition the brokerage agreement.
Finally, with respect to the claim regarding McNair directing the Skyline commission, Plaintiff has identified no evidence that McNair was involved in any way with directing the payment of the commission. Plaintiff's statement that it "defies belief" that McNair would have not had a hand in directing the commission is simply speculation. At the summary judgment stage, it is necessary for Plaintiff to point to evidence in the record in order to prevail; simple speculation is not enough. For that reason, the Court need not address the Avison Young Defendants' argument that post-employment conduct cannot constitute a breach of fiduciary duty.
In sum, Plaintiff's breach of fiduciary duty claim against McNair survives only to the extent that Plaintiff claims that McNair conspired to induce ANSER to transition its arrangement from Grubb & Ellis to Avison Young.
Plaintiff claims that Roehrenbeck breached his fiduciary duty to Grubb & Ellis — his onetime employer — by conspiring to induce ANSER (1) to terminate its Agreement with Grubb & Ellis and (2) to direct the Skyline commission to Avison Young instead of to Grubb & Ellis. See Am. Compl. ¶ 110. The parties' arguments parallel their arguments with respect to McNair. The Avison Young Defendants argue that Plaintiff has identified no evidence
With respect to Roehrenbeck, the answer is clear: Plaintiff has identified no evidence whatsoever that Roehrenbeck was involved with any discussions that could constitute conspiring to induce ANSER to terminate its agreement or to direct the Skyline commission to Avison Young. Remarkably, and notably, Plaintiff does not even mention any actions taken by Roehrenbeck in responding to defendants' breach of fiduciary duty argument in opposing their motion for summary judgment. Because the Court can find no evidence to support the breach of fiduciary duty claim against Roehrenbeck, there is once again no need for the Court to consider whether post-employment conduct can constitute a breach of fiduciary duty. The Court grants summary judgment to the Avison Young Defendants in full on this claim.
Plaintiff next claims that defendants McNair and Roehrenbeck violated the Virginia Uniform Trade Secrets Act by misappropriating confidential records and proprietary information belonging to Grubb & Ellis and providing that information to Avison Young. Plaintiff further claims that Avison Young violated the Virginia Uniform Trade Secrets Act through its acquisition and use of trade secrets belonging to Grubb & Ellis. The parties have stipulated that the only trade secrets at issue are the "datapoints" provided to Peyton through collaboration regarding the ANSER account. The Avison Young Defendants argue, first, that Plaintiffs have not identified the trade secrets in question with the requisite specificity and, second, that Plaintiff's voluntary disclosure of the information to Peyton, an affiliate of a competitor firm, without an agreement protecting that information, bars the trade secrets claim. Plaintiff responds that it has identified the trade secret in question with sufficient specificity and that disclosure to Peyton does not bar a trade secrets claim because of the nature of that relationship.
The Court first turns to the question of specificity. "A plaintiff must identify, with particularity, each trade secret it claims was misappropriated." MicroStrategy Inc. v. Bus. Objects, S.A., 331 F.Supp.2d 396, 418 (E.D.Va.2004). "This must be done to allow the finder of fact to distinguish that which is legitimately a trade secret from other information that is simply confidential but not a trade secret, or is publicly available information." Id. Here, the only secret that Plaintiff identifies with particularity is the mere existence of ANSER's relationship with Grubb & Ellis. See Pl.'s AY Opp'n at 31. Yet, Plaintiff has identified no evidence in the record suggesting that this relationship was kept secret. While Plaintiff references various duties of confidentiality, it never identifies how those duties would prevent a party from disclosing the existence of ANSER's relationship with Grubb & Ellis. Indeed, as the Avison Young Defendants point out, that relationship was disclosed through Grubb & Ellis' representation of ANSER in its real estate search. In addition, while the parties stipulated that the claimed secrets were limited to the information that was passed to Peyton through his collaboration with Grubb & Ellis, Plaintiff never identifies the secrets themselves that were transmitted to him. Having failed to do so, Plaintiff's misappropriation of trade secrets claim fails. For this reason, the Court need not consider the parties' arguments about whether disclosures to Peyton remove such information from the universe of potential trade secrets, and
The Court now turns to Plaintiff's final claim — a statutory conspiracy claim against each of the Avison Young Defendants for conspiring to injure Plaintiff's trade, business and reputation. See Am. Compl. ¶ 124.
The Virginia conspiracy statute requires a plaintiff to prove (1) concerted action, see Simmons v. Miller, 261 Va. 561, 544 S.E.2d 666, 677 (2001); (2) legal malice, id. at 677; and (3) causally related injury, Schlegel v. Bank of Am., N.A., 505 F.Supp.2d 321, 325 (W.D.Va. 2007), aff'd sub nom. Schlegel v. Bank of Am., NA, 258 Fed.Appx. 543 (4th Cir. 2007). In other words, "the plaintiff must prove (1) a combination of two or more persons for the purpose of willfully and maliciously injuring plaintiff in his business, and (2) resulting damage to plaintiff." Allen Realty Corp. v. Holbert, 227 Va. 441, 318 S.E.2d 592, 596 (1984). However, "[i]t is not necessary for a plaintiff to prove that the defendant conspirators acted with actual malice, i.e., ill-will, hatred, or spite directed toward the plaintiff." Dunlap v. Cottman Transmission Sys., LLC, 287 Va. 207, 754 S.E.2d 313, 317 (2014) (citing Commercial Bus. Sys., Inc. v. BellSouth Servs., 249 Va. 39, 453 S.E.2d 261, 266-67 (1995)). "Rather, a plaintiff must establish by clear and convincing evidence only that the conspirators acted with legal malice, i.e., `intentionally, purposely, and without lawful justification.'" Id. (quoting Commercial Bus. Sys., Inc., 453 S.E.2d at 267). Accord Northern Va. Real Estate v. Martins, 283 Va. 86, 720 S.E.2d 121, 133 (2012).
As an initial matter, while Plaintiff brings this claim against all of the Avison Young Defendants, they have identified no actions whatsoever taken by any defendants other than McNair and Peyton as the basis for this claim. The Court, therefore, only looks to those two defendants in determining whether this claim survives the Avison Young Defendants' summary judgment motion. Next, it is critical that the Court, above, determined that the only other claims in this action that survive summary judgment are the breach of contract claim against McNair and Roehrenbeck and the breach of fiduciary duty claim against McNair (solely with respect to the allegation that he conspired to transition the Tenant Representation Agreement to Avison Young). A breach of contract cannot serve as the basis for a civil claim for statutory conspiracy under Virginia Code § 18.2-500. Station #2, LLC v. Lynch, 280 Va. 166, 695 S.E.2d 537, 541 (2010). Accordingly, the only possible basis for the statutory conspiracy claim is the breach of fiduciary duty claim against McNair. See id. at 542 (breach of fiduciary duty can serve as basis for statutory conspiracy claim). This conclusion reveals a fundamental difficulty with the statutory conspiracy claim.
A statutory conspiracy claim requires a showing that two or more people "combined, associated, agreed, mutually undertook, or concerted together" in conduct that was "intentional[], purposeful[], and without lawful justification." Simmons, 544 S.E.2d at 677. That is, to survive summary judgment on this claim, Plaintiff must provide evidence that two or more persons engaged in conduct without lawful justification. Indeed, in Simmons, after concluding that, with respect to one party to a supposed conspiracy, "clearly, the evidence is sufficient as to [that party] to satisfy the requirement of showing that she acted intentionally, purposefully, and without lawful justification," the Supreme Court of Virginia stated that "it is also necessary to prove that [another party to the putative conspiracy] combined, associated, agreed, mutually undertook, or concerted together
In short, a Virginia statutory conspiracy claim requires proof that multiple parties acted together when each of those parties has taken one or more actions that is intentional, purposeful, and without lawful justification. Here, even if Plaintiff can satisfy these requirements with respect to McNair, Plaintiff cannot satisfy these requirements with respect to Peyton. In light of the Court's conclusions regarding the other claims against Peyton, the Court concludes that Plaintiff has not identified evidence in support of any action by Peyton without lawful justification. Absent such evidence, Plaintiff's statutory conspiracy claim cannot survive summary judgment. Accordingly, the Court grants summary judgment to the Avison Young Defendants on the statutory conspiracy claim.
Finally, the Court turns to the argument by defendants that Plaintiff has not identified sufficient evidence of the amount of damages. The Court concludes that Plaintiff has provided sufficient evidence pertaining to the commission fee to satisfy its minimal burden at the summary judgment stage — to show that it was damaged, not to show that the amount of damages precisely.
In sum, the Court concludes that Plaintiff's fiduciary duty claim against McNair (with respect to conspiring to induce ANSER to transition the Tenant Representation Agreement to Avison Young) and the breach of contract claims against McNair and Roehrenbeck survive summary judgment. With respect to all other claims, the Court grants summary judgment to the defendants.
For the foregoing reasons, the Court GRANTS Defendant ANSER's [125] Motion for Summary Judgment and GRANTS IN PART and DENIES IN PART the Avison Young Defendants' [127] Motion for Summary Judgment. Specifically, the Court GRANTS the Avison Young Defendants' motion — and grants summary judgment in full — with respect to the claim for tortious interference with contract (count II); the unjust enrichment claim (count III); the breach of contract claim against Joseph Peyton (count VI); the breach of fiduciary duty claim against Roehrenbeck (count VIII); the misappropriation of trade secrets claim (count IX); and the Virginia
An appropriate Order accompanies this Memorandum Opinion.
In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCVR 7(f).
