Where defendants have challenged the validity of an 18-month post-employment noncompetition provision contained in a non-disclosure agreement, the defendants are not entitled to summary disposition even though the plaintiff has not yet produced a signed writing sufficient to establish authentication or adoption of the specific 18-month covenant.
“Defendants Brandi Stoddard and Nine Nineteen Trade LLC move for summary disposition under MCR 2.116(C)(8) and (C)(10), seeking a declaration that the 18-month post-employment noncompetition provision contained in Copper Hill Inc.’s Employee Non-Disclosure, Developments and Conflict-of-Interest Agreement (the ‘NDA’) is unenforceable and dismissal of Copper Hill’s claims to the extent they depend upon that provision. Copper Hill opposes the motion, asserting that Stoddard signed or otherwise assented to the NDA and that the surrounding writings and her conduct create at least a factual question concerning formation. At the Court’s request, the parties submitted supplemental briefing concerning whether the alleged 18-month covenant must be supported by a signed writing.
“MCR 2.116(C)(8) does not support dismissal. Copper Hill’s verified complaint alleges that Stoddard signed or otherwise assented in writing to the policies at issue. Whether Copper Hill can prove those allegations is an evidentiary question, not a pleading defect.
“The alleged covenant falls within MCL 566.132(1)(a) because, by its terms, it cannot be completely performed within one year of its making. Michigan law permits several writings to satisfy the statutory note-or-memorandum requirement, but where the signature appears on one writing and the alleged agreement appears in another, the writings must be sufficiently connected so that the signature can fairly be said to authenticate the unsigned writing. On the present record, Copper Hill has not yet produced a signed writing sufficient to establish Stoddard’s authentication or adoption of the specific 18-month covenant. That present evidentiary deficiency, however, does not end the inquiry because discovery on the disputed formation and document-identification issues remains at an early stage.
“Copper Hill has identified specific witnesses, communications, onboarding records, and document-handling issues on which further discovery presents a fair likelihood of developing evidence relevant to execution, authentication, loss, and identification of the alleged agreement. The Court therefore denies the motion under MCR 2.116(C)(10) without prejudice to renewal after sufficient discovery on those issues. The Court does not determine that Stoddard signed or assented to the NDA, that the statute of frauds has been satisfied, or that the alleged covenant is reasonable or enforceable. Nor does this ruling dispose of Copper Hill’s independent claims to the extent they do not depend upon enforcement of the alleged noncompetition covenant.”
Copper Hill Inc. v. Stoddard; MiLW No. 10-111198, 10 pages; Oakland Circuit Court; Valentine, J.