* The Honorable Willi am Staff ord, Unit ed States District Judge for the Northern District of Fl orida, sit ting by designat ion.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0005P (6th C ir.) File Name: 04a00 05p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

U NITED R ENTA LS (N ORTH A MERICA ), I

NC ., Plaintiff- Appellant

,

v.

J ERRY K EIZE R , G RANT R ENT

A LL , I NC . and M ULDER ’ S O UTDOO R P OWER E QUIPME NT , I

NC ., Defenda nts-Appe llees. X - - - -

> , - - - - - - - N No. 02-1580

Appeal from the United States District Court for the We stern Dis trict of M ichiga n at Gran d Rapids. No. 00-00831—Douglas W. Hillman, District Judge.

Argued: October 28, 2003
Decided and Filed: January 7, 2004

Before: CLAY a

nd COOK, Circuit Judges; STAFFORD, District Judge. * 2 United Re ntals v. Ke izer, et a l. No. 02-1580

_________________ COUNSEL

ARGUED: Robert H . Smeltzer, LOWIS & GELLEN, Chicago, Illinois, for A

ppellant . Steven C. Berry , BI GLER, BERRY, JOHN STON, SZT YKIE L & HUNT, Z eeland, Michigan, for

Appellee s. ON BRI EF: Robert H. Smeltzer, Geral d Haberk orn, L OWIS &

GELL EN, Chica

go, I llinois, Harold E. Nelson , BORRE, PE TERSON, F OWLER & REENS, Gr

and Rapid s, Michig an, for A ppellant . Steven C. Be rr y, BIGL

ER, BERRY, J OHN ST ON, SZT YKIE L & HUNT, Zeela

nd, Michig an, Rober

t W. Smith
, SILV ERMAN, SMITH, BINGEN & RICE, Kalamazoo, Michiga n, for Appellee s. CLAY, J., delivered the opinion of the court, in which COOK, J., joined. STAFFORD, D. J. (pp. 27-28), delivered a separ ate opini on concu

rring i n part an d dissentin

g in par t.

_________________ OPINION

_________________ CLAY, Circuit Judg e. Plaintif f Unit ed Re ntals (North Amer ica), Inc. appeals fr om the April 5, 2002, district court order granting summary

judgment to Defenda

nts Jerry Keiz er, Grant Rent-All, Inc. and Mulder’ s Outdoor Power Equipm ent, Inc. on Plai nti ff’s claims for breach of contra ct; violation of the Michiga

n Uniform

Trade Se crets Act, Mich. Comp. Laws Ann. § 445.1902 ; intentio na l interfe rence w ith contra

ct; intentional interfe

rence w ith busine ss relati ons; civil

co ns pi ra cy; and breach of a fiduciary duty of loy

alty. The Court AFFIRMS the district court’s order

.No. 02-1580 United Re ntals v. Ke izer, et a l. 3

I. STATEMENT OF

FACTS

A. Procedural History

OnNovember 7, 2000, United Rentals (North Amer ica)
, Inc. (“United” ) fil ed a complaint against Defendants Jerry Keizer, Grant Rent-All, Inc. and Mulder ’s Outdoor Power Equipment
, Inc. (“Mulder’s” ). Since the parties are complete ly

diverse and the amount in contro versy exceeds $75,000, the district court had subject matter jurisdiction over the matter.

The complaint alleged that Keizer violated hi s c ovenantnot-to-co mpet e set forth in ¶ 7.2 of his employment agreement

by selling construc

tion equipmentand soliciting United’s customers in a proscribed geog r aphic area, the socalled “Targe t Area.” The complaint further alleg ed that Keizer, Grant Rent-All and Mulder’s continue to compete with United in the Target Area and do so with United’s proprietary

informationin violation of ¶ 7.3 of the agreement and the Michigan Uniform

Trade Se crets Act. The complaint also allege d a claim f

or tortiou s interfe

rence w ith busine ss relations – i .e ., De fe nd an ts al le ge dl y interf ered with the businessrelationship between Un ited and i

ts custome

rs; a claim that Mulder’s tortiously interfer ed with Keizer’s obligations under the

emplo y ment ag reemen t; and a c ivil conspiracy

by all Defe

ndants to bre a ch the restrictive

covena nts of the employment ag reement, interfere wit h United’s businessr elations; misappropriate United’s confidential information; and to improperly solicit and do business w

ith United ’s custome

rs.
United sought an injunction

against Keizer and

Grant RentAll (and Muld

er’s, to the extent i

t i s doing bu siness wit

h Keizer or Grant Rent-All) from competing with United in the Target Area for a specified period of

time, disclosing United’s confidential informat

ion and sol iciting U

nited’s c ustomers i

n the Target Area for a

specified period of t im e. United also 4 United Re ntals v. Ke izer, et a l. No. 02-1580

sought t o affirmatively c ompel Defendants to locate and return any

and all of United’s confidential information. The complaint also sought an accounting from Def endan ts for Keizer’s alleged breach of the employment ag

reement and an award of actual and punitive damages. On Aug ust 24, 2001, United filed an amended complain

t adding a claim a

gainst Ke iz er fo r b re ac h o f a fi du ci ar y du ty o f l oya lt y.
Defend ants Keizer and Grant Rent-All answered the complain t, and Keize

r filed a counter -claim against United

on Febr ua ry 21, 2001, alleging that United breache d the employment

agreement by

terminating him without prior notice and without cause on March 6, 2000; Keizer

sought h is unpaid salary unde

r the agreement from Marc h 6, 2000 throu gh May

31, 2003. D efenda

nt M u lder’s answered the complaint on August 13, 2001. United filed an answer to the counter claim on March

31, 2001. K

eizer and Grant Re

nt-All filed an answer and counterclaim to the amended c omplaint on September 13, 2001.

OnNovember 1, 2001, Keizer and Grant Rent-All moved for summary

judgmen

t on United ’s comp l aint. On November

2, 2001, United moved for summary judgment on Count I of its complaint for brea ch of the non-competition and non-solicitation provision of the employment ag reement and on Keizer’s counterclaim.

OnApri l 5, 2002, the district court granted Keizer and Grant Rent-All’ s summ ary judg ment motion, denied United’s motion fo r s um ma ry jud gment on Count I, and g ranted United’s summary judgme nt motion on K eizer’ s counter claim. The di strict co

urt also e ntered j udgmen

t in favor of Mulder’s on all counts in United’s com pl aint, even though Mulder’s had not moved for summary judgment.

For the distri ct court , the cru

x of the disp

ute boile d down to the interpretation of the prohibition in ¶ 7.2 of Keizer ’s empl oym e ntagreement which, inter alia, prohibits Keizer from“direc tly or indirec

tly ... engag [ing] in

the operation ofNo. 02-1580 United Re ntals v. Ke izer, et a l. 5

any equipment sale, rental or leasing business” in the Target Area, excluding

Neway go County

. The distr

ict cour t held that this lang uage prohibit e d Keizer from operating such a businessonly

if it is phy

sically located wit hin the Target Area. Accordingly , Keizer did not breach the agree ment b y operatingGrant Rent-All, which is physica ll y located

in Newaygo County , but neve rtheless does one -third of

its businesswith custo mers insid e the Tar get A rea . Assuming arguendo th at th e above -quoted l angua ge from ¶ 7.2 is ambiguo us, the district co urt fu rther held that there was no parol evidence in the record to support United’s contrar y interpretation of the agreement.

The distric t court dismissed United’s claim for breach of the confidentiality clau se (¶ 7 .3 of the a greement) bec ause United had fail ed to submit any evidence show ing that Keizer had taken or used any

confidential information, as defined by the agreement. The district cou rt a lso dismissed United’s claim u nder the Michigan Uniform Trade Sec rets Act. The districtcourt dismissed the tortious interference wi th b usiness relation s, tortious interference w ith contract and civi l

co nspiracy

claims because there was no evidence tha t Defendan t s had wron

gfully interfe red with U

nited’s b usiness. Last
, the district court dismissed the breach of fiduciary duty of loyalty claim because there is no evidenc e that Ke izer did not devote

his full ef

forts to U nited’s b usiness.

United filed its notice of appeal on May 3, 200 2. Keiz er did not appeal the d is trict cou rt’s dismis sal of his counterclaim against United.

B. Substantive Facts

United is a Dela ware c orporat

ion with its principal place of businessin Green

wich, Conn

ecticut. United is i

n the business of renting and selling constru ction and industrial equipment throug houtthe United States. United purchased all of th e stock of Kubota of Grand Rapids, Inc . (“ KGR ”) on June 9, 1998. KG R was then merged into United. United is in th e 6 United Re ntals v. Ke izer, et a l. No. 02-1580

businessof rent ing and selli ng c onstruction and industrial equipment in the Western Michigan area.

Jer ry Kei zer is a Michigan resident, a former owne r of KGR and former

gene ral sale s manag er of Un ited/KGR. Grant Rent-All is a Michigan co r poration, with its principal place of busine ss in Gran t, Michig an, which is within Neway go County. Keizer has been the owner and president of Grant R ent-Al l since December 1994. Keizer never worked at Grant Rent-All until May 2000. Grant Re

nt-All is managed by

Keizer’s step-son and step-son-in-law.

Mulder’s Outdoor

Power Equipment , Inc . (“Mulde r’s”) is

a Michiga n corpor ation, wit h its principal place of busine ss in Byron Center, M ichiga

n; it is in the business of renting and selling construction and

industrial equipment. Jerry Keizer’s brother , Ron Keize

r, is employe d by

Mulder’ s.
Prior to June 1, 1998, Jerry Keizer own e d one-third of KGR’s stock. Th e other t wo-thir ds were owned by Gra

nd Valle y Inv estments, LL C (“GVI”), a limi ted liabil ity company cons is ti ng of

th e f ou r G ra sm an br ot he rs (La rr y, Jack, Russ and Rick.) GVI also fully owned and operated an equipment

business i

n Hudsonvi lle known

as Gr and Valley EquipmentCompany, I

nc. (“GVEC”); Keizer had no intere st inGVEC. KGR

is located in Grand Rapids, Michigan and is inthe business of selling construction, farm and landscaping equipment such as tractors and commercial mowers.

InApr il 199 8, U ni ted app roa che d GV I with a l etter of intentto purchase the stock of bot h KGR and GVEC for $22,750, 00 0. United’s letter did not acknowledge the fac t that Keizer owned a

significant amount of KGR stock; among other things, the letter proposed that at closing , United w ould enter into emplo yment agr eem ents with the four Grasman brothers and that the Grasman brothe rs would enter into a five-ye ar non-compete agreement, but there was no reference to Keizer.No. 02-1580 United Re ntals v. Ke izer, et a l. 7

GVI , by contras t, clear

ly w as awar

e that it did not own all of the KGR stock and that in order for the proposed

sale with United to proce ed, GVI

needed to contro l all KG R stock. Ac co rd in gl y, GV I fo rw ar de d a co py o f United’s letter of intentto Keizer , along with a proposed stock option agreement

throu gh which GV

I wou ld buy Keizer’ s stock in KGR. The stock option agreement recited that Keizer owned 7,250 KGR shares compared to GVI ’s 14,500 . It further acknowledged

tha t United had approached GVI about purchasingall of GV EC’s st ock and that the KGR shares would be included in the proposed transaction.

For $5,000, K

eizer g ranted G VI a n option to p

urchase his KGR shares for $1,475,000. K eizer agreed that if GVI exercise d the option, Keizer would “enter into an

agreement notto compete with KGR or GVEC for five y

ears (other than inNeway go County) and otherwise in form and substance acceptab le to [United], for which KGR shall pay Keizer” $25,000. Further, upon exerc ising the option, KG

R would enter into a five-year employme nt agreement

with Keizer that could be terminated only f or just cause.

At this time, GVI also was awareth at Keizer owned or partiall y owned Grant Rent-All, a competing equipment

sale and rental business in Newaygo County. GVI also was aware that Gran t Ren t-All had sold equipment to customers in the Grand Rap id s ar ea, out si de o f Ne waygo Co unt y. It i s undisputed

that over one-third

of Grant Rent-All’s customers

were located outside Neway go County both befor

e and after the sale of KGR stock to United.
According

to Keizer, the Stock Option A g reement mentioned

that Neway go County would be e

xcluded from the non-competitionagreement because K eizer had so requested at a meeting

with the G

rasmans and th eir a ttorney, Stephen Kretschman, on April 29, 1998. Keizer wanted an assurance incorporated

into the non-competition provision thatif thi ngs did not work out with United as his new employer t hat he could “do business as usual in Neway go” wit h Grant Re

nt8 United Re ntals v. Ke izer, et a l. No. 02-1580

1 Ke izer’s testi mony was corroborated by Richard, Russell and Terry Gras ma n. U nit ed cite s to t he aff idavit of Larry

Grasman, whi ch sta tes that his under standin g of t he non- competi ti on agr eement “was to al low Jerry Keiz er t o compe te wit h Uni tedonl y i n Newa ygo Count y. ” (J .A. 181 5.) All. 1 Keizer

signed the modified stock option agreement later that day.

OnMay 20, 1998, Kre

tschm an, th e G ra sm an s’ at to rn ey, wroteUnited’ s attorney, John Arndts, about the anticipated employment

agreement with Keizer. Kretschm an’ s letter stated tha t he antic ipated th at Keizer ’s employ me nt agreemen

t would be “along the l ines required of the Gras mans, but, in the case of the non-co m pe te , e xc lu di ng Ne wa ygo Co un ty, where his son operates a competing business.”(J.A. 173-74.) OnMa y 2 6, A rndts wrote back with a form employ ment agreement

fo r Je rry Ke izer to sign. Arndts further stated, “[W]ith respect to excluding Neway go County from

the noncompetition provisions of Jerry’s ag

reement with [KGR], we need mo re information concerning what competitive activitie s
are contemplated in Neway go County by

his son and Jerry.” (J.A. 183.)

T hereaf ter, United made little effort to get any additional informationregarding the compe t itive activities of Grant Rent-All. United asserts that its inquiries were limited because t he Gras mans had i

nformed it that Gra

nt Rent-All

was a business in which Keizer and his son or son-in-l a w
were involved, but that it was a v ery sm all business with a different product line from the Gras mans and t hat it did businessonly in Newa

ygo County . United d

oes not cl aim, however, that Keizer misled it about Grant

Rent-All prior to purchasingKGR’s and GVEC’s stock. In fact, United neve r made an y i nquiries

of Keizer

about Gr

ant Rent- All until months af ter Keize r had sig ned his em

ploy ment ag reemen t.

The final ve

rsio n of Keizer’s employment ag reement contained the non-competition provision with the N ewaygoNo. 02-1580 United Re ntals v. Ke izer, et a l. 9

exclusion. The Grasmans’ attorney , Kretschm an , had incorporated

the exclusion into the form emp loyment agreement

that had been provided to him by U nited’s at to rn ey. Kretschman testified that he i ncorporated the Newaygo County exclusion into Keizer’s employ ment agreement

with KGR to

“refle ct the fa

ct th at there wa s a businessin Newaygo County that would ... o ther wise fal l within the scope of the non -compet

e that sho uld be excluded fromit.” (J.A. 596). On June 1, 1998, Keizer sold his KGR sto ck to GVI . On the sa

me day , he signed the em ploy me n t agreement with KGR.
Paragraph

7.2 of the

employ ment ag reemen t c ontains the following non-comp etition an

d non-soli citation provisions :

7.2 Compe tition and Solicitation For a period commencingon the Closing Date and terminating five (5) years the

re after (the “Restricted Period”), neither the Employee nor

any of his Affiliates shall, anyw here inthe Target Area, ( as herein defined), directly or in di re ct ly, acting individually or a s the owner, shareholder, pa rt ne r, or em pl oye e o f a ny e nt it y, (i) engage in the opera

tion of any equipment sal e , ren tal orleasing business; (ii) enter the employ of, or render any personal services to or for the benefit of, or assist in or facilitate the solicitat i on of any business engaged insuchactivitie s; or (iii)receiv e or purc hase

a financi al intere st in , mak e limitation, as a sol e proprietor, partner, shareholder, officer , director, principa l, agent trustee or lender, pro vi ded, however, that t he Emp lo yee ma y ow n, di re ct ly o r i nd ir ec tl y, solely as an inve st ment, securiti es of any business traded on any

nati on al securities exchange or NASDAQ, provided the Employee is not a controlling person of, or a member of a

group which controls such businessand further provided that the Employ ee and his Affiliates do no t, inthe aggreg ate, directly or in di re ct ly, owntwo percent (2%) or more of a

ny c lass of securities of suc h bu siness. Employee and the 10 United Re ntals v. Ke izer, et a l. No. 02-1580

2 The agreement is governed by M ichigan law ( ¶ 9) and also contains an integration clause wh ich reads:

Th is Agreement contains the entire agreement of t he parties and supersedes all pri or or contem poran eous nego tiations, correspondence, underst andings and ag ree ments between the Company agreethat the sum of Twenty F ive Thousand Dollars ($25,000) Price shall be paid by the Company to Employ

ee in con siderati on of this c ovenant n ot to compete upon exec

ution of th

is A greem e nt. For purposes hereof, the term “Target Area ” shall mean the

area within the state of Michigan west of I -75 and U .S. Ro ut e 2 3, bu t s ha ll ex cl ud e N ew ayg o C ou nt y. (J.A. 29, ¶ 7.2.)
Paragraph

7.3 of the

employ ment ag reemen t contain s th e following confidentiality

provision:

7.3 Confidential Information During the Restricted Period and thereafter, the Employ ee s hall keep secret and retain in strictest confidence, and shall not use for the benefit of himself or o thers, all data and informa ti onrelating to the Business (“Confidential Inform ati on”), including, without limitation, knowhow, trade secret s, custome r lists, supplier

lists, deta ils of contracts, pricin

g polici e s , operat

ional methods,

mar keti ng plans or strategies, bidding information, practic es, polices or

procedures, product development techniques or plans, and technical processes; provided, however, that the term “Confident ial Information” shallnot include information that (i) is or becomes gener ally availab le to the public oth er than a s a resul t of disclosure by the Employ ee, or (ii) is general knowl edge in the equipment rental, sales or lea s ing business a

nd not spec ifically

related to the Bu siness.
(J.A. 29, ¶ 7.3.) 2No. 02-1580 United Re ntals v. Ke izer, et a l. 11

parties, regard ing the su bjec t matter o f this Agre eme nt. Th is Agreement may no t be amended or m odified except in wri ting signed by both parties and supported by new consideration.

(J.A. 3 2, ¶ 12 .)

3 The employment

agreement

conti nued i n force. The employment agreement provi de s t hat it cannot be te rmin ated “by any v olun tar y or involuntary

dissol uti on, reorg anizat ion, mer ger, cons olidat ion or t ransf er of assets o f the Co mpa ny ... , if a surviving or resu lt ing corp orat ion or other ent ity or person continues ... the business of the Compan y. ” (J .A. 28, ¶ 6.6.) The agr eement binds and “inure[s] t o the benefit of the corporati on or other enti ty” a nd provides t hat Keizer

would be a gene ral sales m anag er at that su rviving e ntity. (J.A. 2 8, ¶ 6.6 . ) On June 9, 1998, United purchased from GVI a ll of t h e sto ck and assets of KGR and GVEC for $22,750,0 00. O n October 1, 1999, KGR and GVEC merged with United. 3 In March 2002, United replaced Keizer as th e general sales manager, although his salary and benefits continued per the employment

agreement. Keizer resigned effective A pril 27, 2002, believing that his demotion from general sales manager was a constructive discharge.

United’s complaint

alleges that

during the term of Keizer’s employ ment, Keiz er mai ntained an active interest in the affairs of Grant Rent-All, a competitor of United , an d affirma tively misrepresented his intere st inthat busin ess to Unit ed. Spec ific ally, the comp laint

alle gesthat K

eizer maintained

his po sition as president of Grant Rent-All and actively obtained financing for i ts e quipment p urchase s. When United asked Keizer about his int er est in Grant RentAll, Keizer a

lleged ly s aid that it was his son’s b

usiness, w

ith which he had nothing to do.

United alleges that, aft er re signing from United, Keizer took a customer list and began

surreptitiously competing with United in the Target Area under the aegis of Grant Re nt-All. Specifica ll y, United alleges that Keizer bega n selling equipment

to United’s customers within the Ta rget A rea; 12 United Re ntals v. Ke izer, et a l. No. 02-1580

offering equipmen t for sale to the general public within the Tar get Area bo th direc tly a

nd throug

h Mulder’ s; selli n g eq u ipmentat auctions within the Target Area; selling equipment

and part s directl

y to United’s compet itors withi n the Target

Area; advertising equipment for sale and/or rental within the Target Area; soliciting United’s customers within the Targ et A rea; marketing Grant Rent-All in a way that sugg e sted it was affiliated with other business within the Target Area; and giving Mulder’s a c opy of KGR’s customer list.

II.

ANALYSIS

A. Standard of Review

This Court re views de novo a distric t court’s decision to gra nt s ummary judgme

nt. Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 10 48 (6th Cir. 2001). Summary judgment must be g

ranted i f the ple adings a nd ev idence “show that there is no genuine issue as to any materia l fact and that the moving pa

rty is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A dispute over a material fa ct is on ly a “g en ui ne is su e” if a r ea so na bl e j ur y c ould

find for the nonmoving party on that issue. Cockrel, 270 F.3d at 1048 (ci ting A nderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In re

viewing the distri ct court ’ s g rant of summary judgmen t, this Court must view all the facts an d the inferences drawn

theref rom in the l ight most f

avorabl e to the nonmoving party. Id. (citi ng Matsushita Elec

. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

A special interpretive framework applies when a court entertains a summary judg ment motion in a breach of contract

case:

... [A] contra

ct can be inte rpr eted by the c ourt on summary judgment if (a) the contract’s terms ar e clear,

or (b) the ev iden ce supports only one c onstruction ofNo. 02-1580 United Re ntals v. Ke izer, et a l. 13

the c on troverte d provision, notwiths tanding some ambiguity.... If th e court f inds no amb iguity, it should proceed to interpret the contract – and it may do so at the summ ary judgm e nt stage. If, howe ver, the court discerns an ambi gui ty, the next step – involving an examination of

extrinsic evidence – becomes essential.... Su mm ar y ju dg me nt ma y b e appropr iate

even if ambiguity lurks as long as the e xtrin sic evidence presented to the court supports only one of the conf licting i nterpre tations.

Ge ncorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 81 8 (6th Cir. 1999) (q

uo ting Torres Vargas v. Santiago Cummings, 149 F.3d 29, 33 (1st Cir. 1998) (internal citations

an d q uo ta ti on s o mi tt ed by Gencorp )).

B. The Plai n Langu age o f Def endant Keizer’s

NonCompet ition Agre ement

As noted above, K ei zer entered into an employ ment agreement

with United’s predecessor, KGR. Paragraph 7.2 of the agreemen

t co ntains a covenant not to compete; such

covena nts are enforceable under Michigan law. See Mich. Comp. Laws Ann. § 445.774a (a c ovenant tha t restricts an employee from engaging in e

mployment or

a line of business after termination of employment is enf orceab le “if the agreement

or cov enan t is reasonable as to its duration, geographical

area, and the ty

pe of employment or

line of business”). The cove

nant rea ds, in relevant part, as follows:
[N]either [Keizer] nor any of

his Affili ates sha

ll, anywher e in the Target Area, (as herein d efined) , direct

ly

or indire ct ly, acting individually or a s the owner, shareholder, partner , or employe e of any entity ... engage in the operation of any

equipment sale, rental or leasing business.

The central question is: What does it mean to engage in the operation of a competing business in the Target Area? United 14 United Re ntals v. Ke izer, et a l. No. 02-1580

argues that soliciting business from and selling to customers within the Targ et Area

is tantamo

unt to oper

ating a business inthe Targ et Area . Defen dants ar gue tha t t o op erate a businessin the Tar

get Ar ea the bu siness mu st be phy sically located in the Target Area. In this Court’s view, Defend ants

are cor rect.
As the district court noted, “When ordinary speakers refer to where a business is operated , they ref er to the location of the business. ... For exa

mple, a r etail stor e in Gra nd Rapids would not be sai d to opera

te in New ay

go County

simply because a customer drives from Neway go to purchase an

item at the Gran d Rapids store, eve

n if the store actively adve

rtised inNeway go.” ( J.A. 70) (e

mphasis in

original). Indee d, this proposition becomes clearer with a more ex treme example. If Keizer were to r elocate Grant Re nt-All to the North Po le (e.g., the warehouse, inventory and employee s), send direct mail ings and make telephone calls to potentia l customer

s in th e Targe t Area and then personally deliver the goods, the

common sense understanding of this set-up wou ld be t hat Keizer operates his b usin ess in the No rth P ole, e ven th ough he sells to cu stomers in

the Target Area. Cf. Bianchi v. Auto. Club of Mich., 467 N.W.2d 17, 20 (Mich. 1991) (holding that “commonsense” i s a prope r basis for contract

interpretation). See also Lozada v. Dale Baker Oldsmobile, Inc., 197 F.R.D. 321, 339 (W.D. Mich. 2000) (“When the contract terms are plain and unambiguous, a court will construe the contract as it is written and

presume the parties’ intent is c onsistent w ith the ordinary mea

ning of the terms in the contract.”) (citing Pierson Sa nd & Grav

el, Inc. v. Pierson Township, 851 F. Supp. 850 (W.D. M ich.1994 )); Britton v. John Hancock Mut. LifeIns. Co., 186 N. W.2d 781, 782 (Mich. Ct. App. 1971) (“ Contract s which are unambiguous are not ope n t o construct ion a nd must be enforced as written.”) (citations omitted).

United cites to a dictionary tha

t defines “operat ion” as “a process or series of acts aimed

at producinga desired result or effec t; a meth od orprocess of productive activity .”No. 02-1580 United Re ntals v. Ke izer, et a l. 15

Appellant’s Reply Br

. at 5 (quoting Webster’s II, New College Dictionar y(1995)). United argues that the phrase “ engag e in the oper ation of” in¶ 7.2 is equivalent to “engage in a series of acts,” such

that Keizer’s acts of selling to customers in the Target Area amounted to his eng agemen t in a series of prohibited

acts inthe Target Area. This Court has discover ed, however, that, with specific regard to a

business
, dictionaries define operati on to mean

“a busin ess activity or enter prise.” Oxford English Dic tionary On li ne Edition (from the second printed. 1989). The word “opera te” is defined as “[t]o direct the working of; to manage, conduct, wor k (a railwa y, business, etc.)” Id. See also Webster’s Third New I nt’l Dictionar y1581 (199 3) (“to ma

nage a nd put o r keep in operation whether with pe rsonal e ffort or

not < operated

a grocery st ore>”) . Taken t ogethe r, these definitions strongly indicate that in the

business c ontext an op erati on require s a discrete physical location, such a s a railway or a grocery store. But even assuming that an operation can tr anscend a particular physical location, the def inition of “operate” indicates that mana

gement or overs ig ht is an ess ential element of a business operation. Here, there is no evide nce that Keizer has managed a competing e nterpr ise i n the Target Area. Alth ough Keizer allegedly carried out some sales and delive ries in the Target Area, these tra nsactions did not involve manage

ment o r o versight of Grant Rent-All’s business.

United cites several cases th

at purpor tedly support its

plain meaning interpretation of the co ve nant-not-to-compete. On the surface, the strongest case U nited cites is Collen v. Source EDP, Texas, Inc., 576 S.W.2d 435 (Tex. Civ. App . 19 78) . In that case, William Collen had agreed to a restrictivecovenant whichstated tha

t he would

not “dire ctly

or in directly, enter into or be engaged

as a sole proprietor, partner, stockholder,

or employee in any

personnel placement

businessin the City of Dallas, and within a 100-mile radius thereof.” Id. at 435- 36. Collen argued that

the covenant restrained him only from phy sically

establish ing a bu siness in the proscribed area, and therefore, he was not prohibited fromworking for a company 16 United Re ntals v. Ke izer, et a l. No. 02-1580

whoseoffice

is l ocat ed outside of that area, but soliciting personnel placement busine ss in Dal las. Id. at 4 36. In affirmingthe lower court’s enforcement of t he cov enant agains tCollen, the Texas court engaged i n li ttle anal

ysi s, instead merel y summari zing t he fact s and h oldi ngs o f two

cases – Foxworth-Galbrai th Lum ber Co. v. Turner , 46 S.W.2d 663 ( Tex. Comm’n App. 1932) and Hartung v. Hilda Miller, Inc., 133 F.2d 401 (D.C. Cir. 1943). See Id. at 436.

This Court does not find Collen to be persuasive authority f or two reas ons. Firs t, the Texa s court a ppeare d to flout t

h e plain langua ge of the restrictive covenant, which, on its face, limitedCollen only from working for a personnel placement business “in” (i.e., physica lly located within) a def

ined area. Collen abided by the

plain terms of t

he cove nant, and it is ine x plicable

why the cour t read th e covenant expans ively to include working

for such a busin ess located outside of the defined area. Second, Collen was decided under Texas law,

no tMichigan law, which commands the courts to narrowl y construe restrictive covenants. See Kels ey-Hay es Co. v. Maleki, 765 F. Sup

p. 402, 406

(notin g that the Michigan UniformTrade Secrets Act “does not remove such

covena nts fro m disfavored status, and narrowly limits the m t o ‘reasonablene ss’ in protecting only a compet itiv e intere st, duration, geographic are a, and type of employment”), vacated after settlement, 889 F. Supp. 1583 (E.D. Mich. 1991)

. The two decis ions relied upon by the Collen court in no way advance United’s argument her ein. In F

oxworthG albr aith
, the covenant restricted sales (“the business of selling”) in Littlefiel d, Texas or within ten miles thereof. Foxworth- Galbraith
, 46 S.W.2d at 663. Keize r’s cove nant, incontrast, restricts the “opera tion of an y ... b usiness” in the Target Area. Had the drafters of Ke izer’s covenant intended to restrict sales or deliveries in the Targe t Area and not just the presence of a business in that area, they

easily could have specified a sales limitation in the covenant. They did not . In f act , it was because the covenant in Foxworth- Galbraith additiona lly restricted shipments into the defined areas thatNo. 02-1580 United Re ntals v. Ke izer, et a l. 17

the Texas court

enforc ed the covenant a

gainst t he defe ndants. The court sug

gested that witho

ut this specific

restriction, the de fendant s’ conduct would have fallen o utside of th e mor e general proh ibition against engaging in the busine ss of selling inthose areas. See id. at 666 (holding that the sp ecific restriction

on delive

ries into L

ittlefiel d “was de signed t o prohibit sales which mig

ht not come

strictly within the

terms of the former provisions, and to pre vent a n evasion of such provisions”).

United’s relianc e on the Alabama c ourt’s de cision in Dixon v. Royal Cup, Inc., 386 So. 2d 481 (Al a. Civ. App . 1980), is misplaced

for the s ame rea sons. In Dixon, a salesman agreed notto “engage in the business of selling ” part icular it ems within a defined geogra

phic a rea. Id. at 481-82. He specific ally

agree d not to “solicit

or take orders for or sell or deliver any such mer

chandise” in that

area. Id. at 482. Again, Keizer agreed to no such specific g eographi c rest rictions on selling constru ct ion equipment. Unlike the drafters of the agreement

in Dixon, the draf

ters of K eizer’s e mployment agreement

could have specified a pro hib ition on soliciting orders from or delive rin g merchandise to customers in the Targe t Area, b ut did not.

If anything, the Dixon case und ermines U

nited’s a rgumen t. The Alabama court noted that “engaging in business, as use d ina restrictive covenant in an employ ment contract, involves notonly the servicing

or sol iciti ng of c

ustomers, but also

means the setting up o

f an offic e or place of business for solicit ing or servic ing custom ers .” Id. at 483 (e mphasis added) (citi ng R.E. Harrington, Inc. v. Frick, 428 S.W.2d 945 (Mo. Ct. App. 1 968)) . Assu ming arguendo that the phrase “engage in busines s” is ling uisticall y equiv alent to “en gage in the operation of

... any business,”

on the fa cts of this case, it is undispute d that Kei zer did not set up an o ffice in

the Target Area. Accordingly , under Dixon, Keizer did not runafoul of the restrictive covenant because he did not eng age in

business in the Target Area. 18 United Re ntals v. Ke izer, et a l. No. 02-1580

4 One other cas e United ci tes i s inapposi te becaus e the coven an t language was far broader than the langua ge in Keiz e r’s con tr act. In Sob ers v. Sh ann on O ptica l Co., 473 A.2d 1035, 1038 (P a. Sup er. Ct. 198 4), the d efend ants had agree d to “n ot co mpe te” with the plaintiff. The second decision cited by the Texas Courtof Appea ls in Collen also does not support United’s plai n la nguage argume nt. In Hartung , the sellers gave the buy ers the exclusive right to

use the na

me Hilda Miller, Inc. The sellers further agree d not to “engage in the fur niture business under [that name] nor

any other na

me within the Dist

rict of Columbia.” Hartung, 133 F.2d at 401. The sellers opened up

a co mp eting f

urniture business u

nder the Hilda Mille

r name ina nearby

Maryland suburb, a

dvertised the b usi ness in District of Columbia newspapers and s old to District of Columbia residents. Id. at 401-02. Although the court enforced the covenant as to the sellers’ use of the Hilda Miller name, the cour

t refused , on vag

uenessground s, to enforce the

more gener

al prohib ition ag ain st en gaging in the furniture businessin the District

of Columbia. Id. at 402. Since there i s no allegation in this case that Keizer co-opted the Unite d name, it is difficult to see how Hartung is releva

nt. Regar dless, the language of the Hartung covenant focused on engaging in the fur

nit ure business (i.e., sales) within the District of Columbia, unlike Keizer’s covenant which focuses on the situs of the operation from which sales emanate. 4

Even assuming

that Unite d’s broa

d interpr etatio n of operatinga bu siness is plausible, any ambiguity in the language, which wa s c rafted by U nited’s predece ssor in interest
, mus t be construed against United and in favor of Keizer. See Higgins v. Lawren ce, 3 09 N.W.2d 194, 196 (Mich. Ct

. App. 1981) (“It is well settled in the law of contracts that lang

uage w ill be con strued a

gainst t he party draftingthe instru

ment.”)(citations omitted) ; see al so D e Bruy n Produce Co. v. Romero, 508 N.W.2d 150, 156 n. 4 (Mich

. Ct. App. 1993) (“an ambiguous document must be construed against the drafter of the d ocu ment”). It isNo. 02-1580 United Re ntals v. Ke izer, et a l. 19

undisputed

that United drafted the form employ ment agree me nt; ¶ 7.2 was then modified by its prede cessor-ininterest to the contract (GVI) . Under ¶ 6.6 of the employ ment agree ment, United succeeded to GVI ’s rights and obligations under the agree ment. Acc ordingl

y, U nited stan ds in the same position as GVI relative to Keizer with regard to how the agreement

must be inte

rprete d. Just as ¶

7.2 would have to be

cons true d against GVI, a s the drafter, so too must it now be construed against United, as GVI ’s successor. For this reason

as well, the

distr ict c ourt was correct in holding that Keizer did not breach ¶ 7.2 of the employ m ent agreement by operatinga business located outside of the Targ et Area, but that conducts business inside the Target Area.

C. The Extrinsic Evidence
Assuming arguendo that the operative language f rom ¶ 7.2 is ambiguous, the Court can look to parol evidence t o construe it

as long as that evidence is not inconsistent with the writtenwords. See Ditzik v. Schaffer Lumber Co., 360 N.W.2d876, 880 (Mich . Ct. App. 1984) (“The ‘parol evidence rule’ operates to exclude eviden ce of prior contemporaneous agreements, whether ora l or written, which contrad ict, vary or modify

an unambiguous writing intended

as a final and co mplet e exp ressi on of t he agr eem ent.”); Detroit Bank &Trust Co. v. Coopes, 28 7 N.W.2d 266, 269 (Mi ch. Ct. App. 1979) (noting that the test for th e admissibil ity

of parol e vidence “is whether the proffere d parol evidence is inconsistent with the written language”)(internal quotation marks and citations omitted). When interpreting an ambiguous contract with extrinsic evidence, summary judgment is proper so long as the “e xtrinsic evidence pre sen ted to the court supports only one of the c onflicting inter pre tations.” Gencorp, 178 F.3d at 818. As discussed below, the extrinsic evidence supports only one interpreta tion of the ag reemen t, that of K

eizer’s.

It is undisput

ed that Un

it ed (via GVI) was awa re of Keizer’s ownersh

ip int erest a

nd person

al involve

ment in 20 United Re ntals v. Ke izer, et a l. No. 02-1580

Grant Rent-All before entering into the employ ment agree ment. During

negotia ti o ns, United’s attorney was explicitly advised t hat ¶ 7.2 would have to excl ude New aygo County fr om the non-compete because Keizer’s “son oper ates

a competing business” in that county. (J.A. 74.) United had the op portun ity t

o conduc t due dilig ence on the extent t

o whichGrant Re

nt-All compete s with

United, b ut chose t o rely

on t he verb al assurance of a GVI representative that Grant Rent-All was not a compe titor. United never corroborated this assura

n ce by re questing written substantiation or by speakingwith Keizer. Had United requested

documentation, it would have discovere d that one-third of Grant Rent-All’s customers were lo cated in the Target Area and that Gr ant Rent-All sells simila

r products. Thus, o n this factual record, there is no evidence that the parties meant to curt ail Gran t RentAll’s business in any fashi on. Ind eed, the negotiation history shows tha

t the New ay

go County

exclusion was meant to protect

Keizer’ s i nteres t in that business. Thus, the extrinsic e videnc e shows that the parties intended to restrict Keize r’s ab ility to compete by limiting the location of the business which he might operate.

United counters that the most important piece of extrinsi c evidence is Keizer ’s stock o ption ag reemen t w ith GVI. There, Keizer agreed that he would “enter into an agreement not to compe te with

KGR or GVEC for five y ears (other than inN ewa ygo County

) and otherwise in form and substance accept able to [United], for which KGR shall pay Keizer” $25,000. (J.A. 171.) (emphasis added). United argues that the stock option ag

reemen t sh ows that the pa

rties inte nded to preclude Keizer fr om competing with United anywher

e ex cep t within Newayg o County. Appellant ’s Br. at 34.

United’s argume

nt is not persuasive. This lang uage me rely labels the type of agreement to wh ich Kei zer would later agree – an agreement not to compete; it does not even be gin to define the scope of

that ag reemen t. As the in stant dispu

te shows, a non-competition provision can be narrow or broad,No. 02-1580 United Re ntals v. Ke izer, et a l. 21

5 United a lso cit es as parol evidence the aff idavit of Larry

Grasman,

a principal of GVI, who stated that his understanding of the noncompeti ti on agreement “was t o allow Jer

ry Keizer

to compete wi th Unit ed only in Newaygo Count y.” (J .A. 1815.) In contr ast, the ot her th ree princ ipals of GVI, Richard, Rus sell an d Terry Grasman, corroborated Ke izer’s interpr etation of ¶ 7.2 – namel y, tha t t he prov isi on was in tended to perm it Grant Rent-Allto operate as it al ways had been. Larry Gra sman ’s testimo ny do es no t create a genui ne i ssu e of ma ter ial fac t on the meaning of ¶ 7.2, in l ight of th e overwhel ming parol evidence w hich supp orts Keizer’s int erpretation. Specifi call y, both GVI and United were
aware of Keizer’s involvement wi th Grant-All, and United was on noti ce that Gra nt-All was a com petitor

. Despite this knowledge, Unit ed and GVI did not dr aft

¶ 7. 2 wit

h la nguag e th at e xpli cit ly precl udes Kei zer f rom sell ing i n the Target

Area. dependingon the speci fic la nguage of the ag reemen t. 5 Thus, the stock option agreement does not create a disputed

issue of fact about the meaning of ¶ 7.2. Moreover, eve n as sum ing that the st ock option agreement somehow obligated K eizer notto compete with United i n t he Target Area, as discusse d above, the other

evidence shows that ¶ 7.2 of the employment agreemen t cre ates no such obligation. Accordingly , the employment

agree ment dicta

tes Keiz e r’s non-competition obligat ions, not the ea

rlier-s igned st

ock option

agree ment. See CMI Int’l, Inc. v. Intermet Int’l Corp., 649 N.W.2d808, 812 (Mich. Ct. App. 2002) (“When two agreements cover the

same subject matter and include inconsistent terms, the later agreement

sup ersedes the earlier ag reement.”) (citation omitted).

D. Defendant

Keizer’s and Grant-All’s Alleged Breach of Keizer’s Employment Agr eement

United argues that Keizer has violated the non-competition provision, even accepting the district court’s interpretation of ¶ 7.2. United cites to eviden ce that Keizer has been doing bu sine ss wi th Mu ld er ’s an d G ra nd Eq ui pm en t C om pa ny, competitors located in the Target Area. Appellant ’s Br. at 13. Inthe Target Area, Keizer ha s sold equ ipmen t at aucti ons, placed two or three pieces of used equipment on a vacant lot 22 United Re ntals v. Ke izer, et a l. No. 02-1580

wit h a “for sa

le” sig n, attend ed a tra de show, a

dvertise d his business, solicited customers through mass mailings and placed a few pieces of equipment for sale or r ental at Mulder’ s. Id. at 13-14. This evidence, however, shows only t hat Keiz er has done some business (i.e., selling or renting equipm ent) i n the Target Area, not that he has ope rated a business located in the Target Area.

Ina dditi on, United has not articulated a basis for holding Grant Rent- All l iable for bre achin g a contract to which it was nota s ig na to ry, name ly, Keizer’ s employ ment ag reemen t. S i nce Grant Re

nt-All wa s not a par

ty to the agr eement,

s ummary judgmen t on the br

each of contract claim w a s proper for Grant Rent-All on this independent ground.

E. Defendant

Mulder’s Alleged Violati on of the Michigan Uniform Trade Secrets Act.

United has not pressed its contract- an d sta tutorily-based breach of confidentiality cla

ims against Keizer

and Grant-A ll. Ac co rd in gl y, United

has waiv ed any

challen ge to the district court’s dismissal o f Count I I (Mi c higanUniform Trade Secrets Act) with respect to Keizer and Grant Rent-All and the portion of

Count I which claims Ke izer and G rant Rent

All breached the confide

ntiality provisions of the employ ment ag reemen t. Inste ad, Unite d takes is sue with the distric t court ’s sua sponte

entry of summary

judgment in favor o f Muld er’s o n United’s claim under the Michigan Uniform Trade Secrets Act. (“MUTSA”). Alth ough we agree with our dissenting colleague t

hat the district court should have afforded United te n day s’ advan

ce notic e and an

opportuni

ty to respond, Yashon v. Gregory, 737 F.2d 547, 552 (6th Cir. 1984), we believe that the court’s violation of Rule 56 was non-pre judicial. Kistner v. Califano, 579 F.2 d 1004 , 1006 (6th Cir. 1978) (hold ing th at non compl iance w ith R ule 56 's ten-day notice requirement does not depr iv e the court of the

a ut hority to grant summary

judgment when “there has been

no prejud ice to the

opposing party by t he court ’s failur

e to comply with this provision of the rule”). O n appeal, UnitedNo. 02-1580 United Re ntals v. Ke izer, et a l. 23

has proffered

whatever evidence and rela ted argument it can

m uster in opposition to summar y ju dgment on th e MUTS A claim agains t Mulder’ s. United has n ot ar gued that it was denied criti cal di scove ry, thereb y hamperi ng its a bility to opposesummary judgme

nt. Thus, the propriety of summary judgment for Mulder’s is now ripe for a full and fair review. Since we apply the sa

me de novo standar

d of revi ew that a districtcourt applies in the sum ma ry judgmen t context, it

is

a better use of judicial resources for this Court to settle the issue now rather than remanding and havi ng to en tertain another appeal in the future.

Insupport of

its MUTSA c laim ag ainst Muld er ’s, United cites to th e tes timony of former e mployee Chad Alverson, who went to work for Mulder’ s

. Appellant ’s Br. at 15. According

to Alverson’s testimony, he brou gh t a copy of a customer list to Mulder’s, and

Mulder’s owner, Art Mulder,

saw the list but told Alversonthat Mulder’s “didn’t need it.” (J.A. 447-48.) Alverson stated tha t he bro ught the list back home and “it probably g otthrown out.” (J.A. 448.) Mulder testified that for “[a]bout three minutes” he perused a list that he “assum[ed]” had been dropped at his store by Keizer. (J.A. 524-25.) He then “set it back down” and “then it was gone.” (J .A. 526-28.) Mulder testified that it would have bee n wrong to use the list and thatthe list is not in the possession of anyone f

rom Mulder’s.

The MUTSA gives a court the power to enjoin an actual or threatened

misappropriation of a t rade se cret, such as an unauthorized

disclosure or use of a

trade se cret. Mich. Comp. Laws Ann. §§ 445.1902, 445.1903. A “misappro priati on” means either:
(i) Acquisition of a trade secret of a no ther by a pe

rson
w ho knows or has reason to know that the trad e secre t was acq uired by improper means. 24 United Re ntals v. Ke izer, et a l. No. 02-1580

(ii) Disclosure or use of a trade secre tof another without express or impli ed con sent by a person who did 1 or

more o f the f

ollo wing: (A) Used improper means to acquire knowledge of the trade se cret. (B) At the time

of the dis closure

or use , knew or had reason to know that

his or her knowledge of the trade secret was derived from or

through a person who had utilized improper means to acquire it, acquire d un der circumstances giving

rise to a d

uty to maintai

nit s secrecy or limit its use, or derived from o r through a person who owed a duty to the pe rsonto maintain its secrecy or limit it use. (C) Be fo re a material change of his or her position, knewor had reas on to know that it was a trade secret and that k nowle dge of it had been acquired by accident or mistake.

Id. § 445.1902(b).

There is no evidence that Mulder’s has misappropriated or is likely to misapp ropri ate Unite d’s custo mer list. F irst, Al ver son’s acquisition of the list and delivery to Mulder’ s cannot be imputed to Mulder’s. There is no evidence that Mulder’s solicited this conduc t orcondone d it once t he list appeared at the sto re. Alverson brought the list to Mulder’s complete ly

on his own accord w ithou t the knowledge of anyone else at Mu

lder’s. The record

shows that Alverson was merely a salesman at Mulde r’s, n ot an officer, director or high-level manager

whose conduct pote

ntially could bind the

co mp an y. Cf. CMI Int’l, 649 N

. W.2d at 813 (“to make a claim of threa tened mis app ropriati on, ... the p arty must establish more than

the existence

of generalized

trade se crets and a competitor’s employment of the part y’s former employee who has kno wl edge of trade secre ts”) (citation omitted). Thus, Mulder’s never “acqui[r ed]” the li st becau se
no one with any mea

ningful authority a

t Mulder’s either knew

or shoul d have known that t he lis t had b een acq uired throu ghNo. 02-1580 United Re ntals v. Ke izer, et a l. 25

6 Even if Mulder wa s awa re that the li st had come f rom Alv erson

or Keizer, he would have had no reason to thi nk t hat they had acquired the listthrough improper means. To the contrary, Alverson and Keize r acquired the listthrough proper means pres umably becaus e United gave them the listwhen they were employed at United. The fac t t hat Alver son and/or Keizer

perhaps sh ould have r eturne d the l ist aft er the y lef

t Unit ed does not alter the f

act that t heir acquisit ion of the li st was proper. improper means. In fact, Ar

thur Mulder testified

that he was not sure how the list ended up at his store. 6

Second, there is no genu ine i ssue of material fact that Mulder’s disclosed or used the customer list. Mulder testified that he glanced at the list for three min utes, determined that it would be wrong to use the list, set it down and never saw the list again. As far

as anyone

knows, the list that appeared at Mulder’s existed for a

day and then d

isappea red. Be cause there is no evidence of a past discl osure or use of the list or any likelihood of a future use or disclosur e , summary judgment for Mulder’s on the MUTSA claim was proper.

F. Clai ms for Intentiona l Interfer ence with Bus iness Relations , Intentional Interference with Keize r ’s Employment Agreem ent and Civil Conspiracy

Anessential element of a claim for tortious interfere nce with contract , tortious interference with business relation s an d civilconspiracy

is thatth e alleged tortious conduct be wrongf ul. See T

repel v. Pontiac Osteopathic Hosp., 354 N.W. 2d 341, 347 (Mich. Ct. App. 1984) (tort of intentional interferencewith contract or with business relations requires

a showing of “illegal, unethica l orfraudul ent condu

ct in addition t o intention

al interf erence ”); Feaheny

v. Caldwel

l, 437 N.W.2d 358 , 365 (Mich. Ct. App. 1989 ) (tort of civil conspiracy

requires concerted action “to ac compl is h a crimina l or unlawful purpose, or to accomplish a lawful purpose by c rimin al or

unlawful means”). As discussed above, there is no genuine i ssue of material fact that Keizer and Grant Rent-All breached the non-compete or 26 United Re ntals v. Ke izer, et a l. No. 02-1580

confide ntiality provision s of his employ ment ag reemen t, nor is there a genuine issue of material f act that Mulder’s violated the Michigan Uniform Trade Secrets Ac t. Accordingly , there is no underlying

contractual violation or violation of Michigan common law or statutory law on which to premise these torts. Summary judgme nt was therefore proper.

G. Defendant

Keize r’s Alle ged Br each of a Fiduciary Duty of Loyalty

United argues that

becau se the district court’s grant of summary judgmen t on the br

each of contract cl aim was impr oper, it follows that dismissal of its claim for breach of the fiduc iary

duty of loy alty also was improper. Appellant’s Br. at 46-47. United has proffered no other arg ument on the merits of this cla

im. As disc

uss ed above, the district court properl y granted summary

judgment on the breach

of contract claim. Accordingly , the breach o f fid uciary duty claim als o was properly

dismissed.

III. CONCLUSION

For all the foregoing rea s ons, the district court’s order granti ng summa

ry judgmen t to Defe ndants is AFFIRMED

.No. 02-1580 United Re ntals v. Ke izer, et a l. 27

_____________________________________________ CONCURRING IN PART, DISSENTING IN P ART

_____________________________________________ WILL IAM STAFFORD, District Judge, concurring in part and dissenting

in part. While I agree that summary judgment

was properl

y e ntered i n favor o f Keizer

and Gra nt Rent-A ll, Iwr it e s ep ar at el y t o address the district court’s entry of summary judgment in favor of Mulder’s. Mulder’s did not file a m ot io n f

or su mm ar y j udgment , nor was notice ever given to United that it should introduce evidenc e to support its claims against Mulder’s.

“The clearly

established rule

in this circuit is that a district court must afford the p arty agains t whom sua sponte summary judgmen t is to be ente red ten day s notice and an adequa te opportu

n ity to respond.” Yashon v. Gre gory , 737 F.2d 547, 552 ( 6th Cir. 198 4). “We ha ve underscored t

his requirement

of ‘unequivocal notice’ on numerous occasions. Helwig v. Vencor, Inc.
, 251 F.3d 540, 552 (6th Cir.2001) ( en banc ) (citi ng Salehpour v. Univ. of Tenn.
, 159 F.3d 199, 204 (6th Cir.199 8) ; Brig

gs v. Ohio E

lect ions C omm'n , 61 F.3d 48 7, 493 (6th Cir .1995); Yashon v. Gre gory , 737 F.2d

547
, 552 ( 6t h C ir .1 98 4) ). “N on co mp li an ce wi th th e [ te n d ays notice] pro v ision...deprives the court of authority to grant summary judgmen t, unless the opposing

party has waiv ed this require ment, or there

has been no preju d ice to the opposing party by th e court’s failure to comply with this provision of the rule.” Kistner v. Califano , 579 F.2d 1004, 1006

(6th Cir. 1978) (citations omitted).

Onappeal, United states: “[I]f this Court reverses the District Court’s r uling on s

ummary judgmen t as to Count

I [breach of co ntract ag ainst

Keize r], it follows that this Court should also rev erse the

District C ourt’s rulings

as to Counts IV [t or ti ou s i nt er fe re nc e w it h K ei ze r’ s e mp lo ym ent /noncompete covena nt] and V [conspiracy to

breach the restrictive

covena nts contained in Keizer’s employ ment con tr act] as to 28 United Re ntals v. Ke izer, et a l. No. 02-1580

Mulder’s.” Final Br. of Appellant at 47. United m akes no other argument with regard to Counts I V and V. Becau s e United appears to conce de that Cou nts I V and Co unt V agains tMulder’s cannot survive the g rant of summary judgment to Keizer in Count I, I

agree that we

can affirm the districtcourt as

to t hose two c ounts. Giv en our de cision to affirm the di st ric t co urt ’s d eci si on a s t o C oun t I, it would be futileto remand

Co unt s IV and V for further proceeding s as to Mulder’s.

The same is not true of Coun t II , ho wev er. In Co unt II, United a lleges

that the d

efenda nts, inclu

ding Muld

er’s, violated the Michigan Trade Secrets Act by misappropriating United’s trade secrets. United argue s that the district court’s

sua sponte

entry of summary

judgment

in favor of Mulder’s

on Count II should be

vacated regardless of the

decisionas to the ot her cou nt s. I a gre e. U nl ik e Co unt s IV and V, thi s claim agains tMulder’s stands on i ts own and does not fail si

mply because the claims against Keizer and/or G rant Rent-All fail

. The majority claims that “United has pr offere d what ever evidence and

related argume nt it can mu ster in

opposition

to summary judgment on

the MUTSA

claim against Mulder’s.” Infra p. 22. United, however, cannot offer evidenceon appeal that was not part o f the re cord bef ore the t rial cou rt; and wh ile Irecog nize that U

nited has not a rg ued that it was denied critical discovery, I cannot assume that United would not have introduced additional evidence before the trial court had it been given appropriate notice. Becau se United should have been given notice of, and an opportunity to respond to, the dist rict court’s sua sponte

consideration of summar y judgment on the trade secrets claim against Mulder’ s, and because I ca nnot conclu de from this record that the district court’s failure to provide appropriate notice was nonprejudic ial, I wou

ld vacat e th e d istrict court’s entry of summary judgment in favor of Mulder’s as to Count II and would re mand for further procee dings as

to that cla

im.