United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT  AND
DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
HONORABLE STEPHEN J. MURPHY, III
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
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 1160.
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).
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
Contractual Attorney's Fees
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.
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.
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. 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 34-1, PgID
1209, 1215, 1222.
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 non-compete
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.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,
persuaded the Court to enter an order enjoining Defendants
from competing for the duration of the non-compete clauses.
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