United States District Court, District of Columbia
ROBERT HALF INTERNATIONAL INC. Plaintiff,
NICHOLAS BILLINGHAM, et al., Defendants.
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge
29, 2018, the court granted a motion by Plaintiff Robert Half
International, Inc., to preliminary enjoin its former
employee, Defendant Nicholas Billingham, and Billingham's
current employer, Defendant Beacon Hill Staffing, from
violating an employment contract between Billingham and
Plaintiff (“Employment Agreement”). As set forth
in the court's Memorandum Opinion, the court found that
Plaintiff was likely to succeed on its breach of contract
claim against Billingham and its tortious interference claim
against Beacon Hill. See Mem. Op., ECF No. 34
[hereinafter Memorandum Opinion]. Now before the court is
Defendants' Motion to Dismiss the Verified Complaint, ECF
No. 15 [hereinafter Defs.' Mot.]. For the reasons that
follow, this motion is denied.
move to dismiss Plaintiff's Complaint under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. See
generally Defs.' Mot.; id., Mem. of Pts.
and Auths. in Supp. of Defs.' Mot., ECF No. 15-1
[hereinafter Defs.' Mem.]. In evaluating a motion to
dismiss under Rule 12(b)(6), the court accepts as true the
plaintiff's factual allegations and “construe[s]
the complaint ‘in favor of the plaintiff, who must be
granted the benefit of all inferences that can be derived
from the facts alleged.'” Hettinga v. United
States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting
Schuler v. United States, 617 F.2d 605, 608 (D.C.
Cir. 1979)). To survive the motion, “a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 682,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible when
“the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
court begins with Defendants' arguments as to
Plaintiff's two claims against Billingham: breach of
contract and anticipatory breach of contract. See
Verified Compl., ECF No. 1 [hereinafter Compl.], ¶¶
62-83. Defendants posit that Plaintiff cannot state either
claim because the Employment Agreement is unenforceable.
Defs.' Mem. at 4-9. This argument rests on the premise
that Massachusetts law governs the Agreement and, under
Massachusetts law, the Agreement is unenforceable because the
terms of Billingham's employment materially changed
during his four years with Plaintiff and the parties did not
renew their original contract or enter into a new one.
court already has rejected Defendants' contention that
Massachusetts law applies in this case, and does so again
here. See Memorandum Opinion at 10-12. District of
Columbia law governs the Employment Agreement. Id.
at 12. Under District of Columbia law, Plaintiff has stated a
breach of contract claim because it has alleged all of the
requisite elements: (1) a valid contract between the parties;
(2) an obligation or duty arising out of the contract; (3) a
breach of that duty; and (4) damages caused by the breach.
See Francis v. Rehman, 110 A.3d 615, 620 (D.C.
2015); see also Memorandum Opinion at 10-20
(explaining why Plaintiff is likely to succeed on its
next to the anticipatory repudiation claim,  Defendants
contend that Plaintiff has not stated a claim because the
cause of action does not apply to “unilateral
contracts.” More specifically, Defendants assert that
because Robert Half's performance of the Employment
Agreement has come to an end and because Billingham's
remaining obligation-here, “a specified term of
forbearance”-is “not yet due, ” what
remains of the Employment Agreement is a unilateral contact
that cannot be anticipatorily breached. See
Defs.' Mem. at 9-11. This argument, however,
misunderstands the contract at issue and misinterprets
District of Columbia law.
Defendants recite in their motion, a bilateral contract is
one in which “both parties exchange mutual or
reciprocal promises.” Defs.' Mem. at 9 (quoting 1
Williston on Contracts § 1:17 (4th ed.)). A unilateral
contract is one that “occurs when there is only one
promisor and the other party accepts, not by mutual promise,
but by actual performance or forbearance.” Id.
(quoting Williston § 1:17). In this instance, the
contract between Billingham and Plaintiff is bilateral, not
unilateral. Plaintiff promised to employ Billingham in
exchange for Billingham's promise, among other things, to
abide by the restrictive covenants in the Agreement.
See Compl. ¶ 3 (“As a condition to his
employment at [Plaintiff], Billingham entered into an
employment agreement with [Plaintiff.]”).
Billingham's promise included the prospective
agreement that he would refrain from certain activities upon
departing the company, three of which are relevant here: the
non-compete covenant, and the provisions that bar the
solicitation of customers and the solicitation of
Plaintiff's employees. See Compl., Ex. A, ECF
No. 1-1 [hereinafter Agreement], §§ 9-11.
Defendants therefore are wrong in asserting that the
Agreement became “unilateral after Billingham's
resignation, and could not give rise to a cause of action for
anticipatory breach . . . [until] forbearance for the
specified term[ ] [became] due.” Defs.' Mem. at
10-11. Billingham's obligations to forbear from certain
non-competitive activities became due the moment he left
Robert Half. In that sense, the Employment Agreement
has always been a bilateral contract.
even if the Employment Agreement could be construed to have
become a unilateral contract, Defendants have cited no case
under District of Columbia law holding that a claim of
anticipatory breach is unavailable to enforce expected
violations of restrictive covenants. The very case on which
Defendants rely, Glenn v. Fay, 281 F.Supp.3d 130
(D.D.C. 2017), see Defs.' Mem. at 10-11,
provides “that the doctrine of anticipatory repudiation
is inapplicable to all unilateral contracts for future
payment of money only.” Glenn, 281
F.Supp. at 139 (emphasis added) (citing 23 Williston on
Contracts §§ 63:60-61) (applying the doctrine to
unilateral contracts where outstanding obligation is
payment); Cent. States, Se. & Sw. Areas Pension Fund
v. Basic Am. Indus., Inc., 252 F.3d 911, 915 (7th Cir.
2001) (describing the limitation on anticipatory repudiation
as “if the payee has completely performed his side of
the contract and is just awaiting payment, he can't
declare a breach and sue for immediate payment just because
he has reason (even compelling reason) to doubt that the
other party will pay when due”). That principle plainly
does not apply in this case.
other ground for dismissing the anticipatory breach
claim-that Plaintiff has not alleged “words or conduct
that forcefully evidence an intent not to perform”-also
fails. Defs.' Mem. at 11. Viewing the allegations in the
light most favorable to Plaintiff, it is entirely plausible
that Billingham has anticipatorily breached certain terms of
the Agreement. Billingham accepted employment with
Plaintiff's direct competitor in the District of
Columbia, he failed to respond to Plaintiff's letter
seeking assurance he would abide by the restrictive
covenants, and, upon starting at Beacon Hill, stated that he
intended to “add[ ] to my team quickly, and tak[e]
market share from [Beacon Hill's] competitors.”
See Compl. ¶¶ 42-43, 47-48, 77. These
alleged words and actions are sufficient to plead a plausible
claim of anticipatory repudiation of, at least, the
non-compete and non-solicitation covenants of the Agreement.
also seek dismissal of the two claims against Defendant
Beacon Hill, tortious interference with contract and unjust
enrichment. As to the tort claim, Defendants contend that
Plaintiff has not stated a claim because: (1) the claim
depends on an unenforceable Agreement; (2) Billingham's
employment was “at-will, ” and this kind of
“employment agreement” usually “cannot form
the basis for a tortious interference with contract claim
under District of Columbia law”; and (3) Plaintiff has
not “provide[d] any facts in support of its bare
assertion that Beacon Hill committed any intentional
interference” with Billingham's compliance with the
restrictions in the Agreement. Defs.' Mem. at 12-14.
Under District of Columbia law, tortious interference
requires the plaintiff show: (1) the existence of a valid
contractual or other business relationship; (2) the
defendant's knowledge of the relationship; (3) the
defendant's intentional interference with the
relationship; and (4) resulting damages. Newmyer v.
Sidwell Friends Sch., 128 A.3d 1023, 1038-39 (D.C.
2015). Those four elements constitute the plaintiff's
prima facie case, which, once established, shifts the burden
to the defendant to show its conduct was justified or
privileged. Oneyoziri v. Spivok, 44 A. 3d 279,
286-87 (D.C. 2012).
the court has already rejected Defendants' first ground
for dismissal, the court starts with Defendants' argument
that interference with Billingham's at-will employment
cannot support a tortious interference claim. This warrants
little discussion. Contrary to Defendants' suggestion,
Plaintiff does not contend that Beacon Hill interfered with
Robert Half's at-will employment of Billingham. Rather,
Plaintiff's tort claim concerns what happened
after Billingham resigned from Robert Half, when
Plaintiff alleges that Beacon Hill interfered with the
Agreement's restrictive covenants. See Compl.
¶ 1 (“Beacon Hill has tortuously interfered and is
continuing to tortiously interfere with Billingham's
employment agreement[.]”); id. ¶ 88
(“Beacon Hill knew or reasonably should have known that
Billingham had a similar [employment] agreement that would
prevent Billingham from working for Beacon Hill[.]”);
id. ¶ 92 (“Beacon Hill's interference
with the Agreement was and remains improper.”);
id. ¶ 94 (“Beacon Hill's interference
with the Agreement has caused and ...