The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Modis, Inc. brings this diversity action for damages and injunctive relief against defendants Infotran Systems, Inc. and Tien H. Tran, alleging breach of contract. The defendants have filed a counterclaim alleging two counts of tortious interference with contractual or business relations. The parties have filed cross-motions for summary judgment on the defendants' counterclaim. The defendants have also moved to strike two of Modis's proposed expert witnesses offered to provide evidence solely regarding the counterclaim. Because the defendants' counterclaim pertains to mere competitive communications, the plaintiff's motion for summary judgment on the defendants' counterclaim will be granted, and the defendants' motion to strike will be denied as moot.
Modis is an information technology ("IT") service provider that provides staffing for "complex IT challenges," staffing for work on various computer systems and databases, and technical expertise. (Compl. ¶¶ 6, 10; Pl.'s Stmt. of Mat. Facts in Supp. of Mot. for Summ. J. on Defs.' Counterclaim ("Pl.'s Stmt.") ¶ 1.) Modis contracted with Computer Science Corporation ("CSC") to provide information technology support to CSC in connection with CSC's contract to perform work for the United States Citizenship*fn1 and Immigration Services ("USCIS"). (Compl. ¶ 6; Pl.'s Stmt. ¶ 3.) In 2006, Modis enlisted Tran as an independent contractor at CSC to support the information technology work that CSC was performing for the USCIS. Modis required Tran on behalf of his company, Infotran, to sign an Independent Contractor Agreement ("the Agreement") that restricted the use of confidential information and that contained a non-compete provision. Tran agreed to not solicit business or employment from any client of Modis, including CSC, or from any entity or person with whom Tran had personal contact or whom he met while providing services for CSC without the written consent of Modis "during the term of [the] Agreement and for a period of one (1) year thereafter[.]" (Compl. ¶¶ 12-13, 28-30.) The Agreement provided that if Tran or Infotran breached the restrictive covenants, Modis would be entitled to seek injunctive relief as well as a fee equal to 125 percent of the fee that Modis would have earned if it had provided the services. (Id. ¶ 31.)
In 2008, Timothy Martin, the sales director for Modis' Government Services Group, talked to the defendants about structuring their relationship in a way that allowed the CSC to claim that it was increasing its spending on small business subcontractors. Martin purportedly said the defendants could enter a direct contractual relationship with CSC for the limited purpose of allowing Modis to provide IT personnel resource services to the defendants to place at CSC. (Pl.'s Stmt. ¶ 9.) The defendants claim that Martin, on behalf of Modis, waived the contractual provisions containing the bar on the defendants directly contracting with CSC and the non-compete restrictions; the plaintiffs dispute that contention. (Pl.'s Stmt. ¶ 8, 12.)
In the fall of 2008, Martin discovered from a CSC project manager that the defendants were going to place two employees directly with CSC, without Modis' participation, in positions for which Modis was actively submitting candidates for placement. Martin chose to talk to Tran about the placements instead of initiate litigation to enforce the Agreement. (Pl.'s Stmt. ¶¶ 14, 16.) However, in March of 2009, Martin discovered that Tran had contacted a prospective contractor whose resume Martin had obtained and submitted to CSC to try to place him there. Tran tried to determine the prospective contractor's interest in being placed with CSC by the defendants, rather than by Modis. (Pl.'s Stmt. ¶ 19.) The plaintiffs sent a letter to Tran reminding him of the non-compete restrictions in the Agreement. (Pl.'s Stmt. ¶ 21.) In May of 2009, the defendants gave Modis a letter stating that they were terminating their relationship with Modis. (Compl. ¶ 34.)
Martin told CSC's program manager that the defendants had violated the Agreement with Modis and that Modis would potentially initiate litigation against the defendants. Martin asserts that he also asked the program managers to advise him how the dispute regarding CSC staffing could be resolved without resorting to litigation. (Pl.'s Stmt. ¶¶ 22-23.) Martin allegedly also tried to convince CSC to use a contractor provided by Modis instead of Tran. Martin informed CSC employees that Modis was about to take legal action against Infotran, that Infotran lacked the capacity to complete the project for CSC, and that Modis's resources were superior to Infotran's resources. Thus, he asked CSC to remove Infotran from the project. (Counterclaim and Third Party Compl. ("Counterclaim") ¶¶ 69-81.)
In June 2009, Modis filed the one-count breach of contract complaint in this matter against both defendants, alleging that the defendants breached the contract and violated the non-compete restrictions by competing with Modis for placement opportunities with CSC. (Compl. ¶ 35.) After the lawsuit was filed, CSC refrained from using the defendants to staff projects, both to mitigate risk and because CSC did not need the defendants' services. (Pl.'s Stmt. ¶¶ 25-27.) CSC fully removed Infotran from the project in November 2010. (Pl.'s Stmt. ¶ 30.) The defendants were granted leave to file a counterclaim and third party complaint alleging one claim of tortious interference with business or contractual relations against Modis (Count I), and one third-party claim of tortious interference with business or contractual relations against Martin (Count II). (Counterclaim ¶¶ 90-122.)
The parties have filed cross-motions for summary judgment on the defendants' counterclaim.*fn2 In addition, the moved to strike Modis's designation two witnesses to offer expert testimony solely regarding the counterclaim.
"'Summary judgment may be appropriately granted when the moving party demonstrates that there is no genuine issue as to any material fact and that moving party is entitled to judgment as a matter of law.'" Pueschel v. Nat'l Air Traffic Controllers Ass'n, 772 F. Supp. 2d 181, 183 (D.D.C. 2011) (quoting Bonaccorsy v. Dist. of Columbia, 685 F. Supp. 2d 18, 22 (D.D.C. 2010) (citing Fed. R. Civ. P. 56(c))). "'In considering a motion for summary judgment, [a court is to draw] all 'justifiable inferences' from the evidence . . . in favor of the non-movant.'" Pueschel, 772 F. Supp. 2d at 183 (quoting Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). "The relevant inquiry 'is the threshold inquiry of determining whether there is a need for a trial - - whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Single Stick, Inc. v. Johanns, 601 F. Supp. 2d 307, 312 (D.D.C. 2009) (quoting Anderson, 477 U.S. at 250) (rev'd on other grounds by Prime Time Int'l Co. v. Vilsack, 599 F.3d 678 (D.C. Cir. 2010)). A genuine issue is present in a case where the "evidence is such that a reasonable jury could return a verdict for the non-moving party," a situation wholly distinct from a case where the evidence is "so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 248, 252.
The defendants' counterclaim alleges two counts of tortious interference with contractual or business relations under District of Columbia law, based on Martin and Modis contacting CSC to inform CSC that Modis was taking legal action against the defendants for violating the Agreement. (Counterclaim ¶¶ 69-71, 82.) The torts of intentional interference with a contract, or intentional interference with business relations, have the following elements: (1) the existence of a valid contract, business relationship or expectancy; (2) knowledge of the contract, relationship or expectancy on the part of the interferer; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) damage caused by the interference. Onyeoziri v. Spivok, 44 A.3d 279, 286 (D.C. 2012) (citing Restatement (Second) of Torts, § 766, and NCRIC Inc. v. Columbia Hosp. for Women, 957 A.2d 890, 900 (D.C. 2008)); see also Brown v. Carr, 503 A.2d 1241, 1247 (D.C. 1986) (stating that "[t]he tort of intentional interference with a prospective business advantage runs parallel to that for interference with existing contracts"). To establish a claim of improper interference with contract or business relations, the plaintiff must demonstrate that the defendant engaged in conduct that is "egregious; for example, it must involve libel, slander, physical coercion, fraud, misrepresentation, or disparagement." Sheppard v. Dickstein, Shapiro, Morin & Oshinsky, 59 F. Supp. 2d 27, 34 (D.D.C. 1999) (dismissing plaintiff's tortious interference claim where the plaintiff's complaint was "silent" as to any statements made by the defendants that constituted slander, libel, or knowing misrepresentations) (internal quotation omitted). The competitive activity that forms the basis of an improper interference claim must be accomplished "by wrongful or improper means, such as fraud." Mercer Mgmt. Consulting v. Wilde, 920 F. Supp. 219, 239 (D.D.C. 1996).
An interfering defendant may avoid liability by showing that its interference was not improper -- - in other words, not something beyond mere competitive activity. See Int'l City Mgmt. Ass'n Ret. Corp. v. Watkins, 726 F. Supp. 1, 6 (D.D.C. 1998); see also Murray v. Wells Fargo Home Mortg., 953 A.2d 308, 326 (D.C. 2008) (stating that a defendant may avoid liability if it can establish that it engaged in the interfering conduct in order to protect an existing economic interest). "Lawful competition does not constitute unjustifiable interference." Pampered Chef v. Alexanian, 804 F. Supp. 2d 765, 807-808 (N.D. Ill. 2011). "[T]he process known as competition, which though painful, fierce, frequently ruthless, sometimes Darwinian in its pitilessness, is the cornerstone ...