The opinion of the court was delivered by: Nora Barry Fischer United States District Judge
Plaintiff Simpler Consulting, Inc. ("Simpler") has been awarded summary judgment on liability at Count II in its Amended Complaint, as a result of breach of contract by the Defendant Thomas Wall ("Wall"or "Defendant").*fn1 Pending is a motion by Plaintiff requesting damages and injunctive relief for the breach of contract at Count II, and a motion to strike by Defendant. For the following reasons, Defendant's Motion to Strike  is GRANTED, and Plaintiff's Motion for Damages and Injunctive Relief at Count II [68 and 75] is DENIED. Plaintiff's motion for damages and attorney's fees under the Agreement is denied without prejudice, and Plaintiff's requests for injunctive relief are denied with prejudice.
Wall is a former employee of Simpler and upon the termination of his employment, the parties entered into a Settlement Agreement and General Release ("Agreement") which contained restrictive covenants preventing Wall from having contact with certain entities, hiring ex-Simpler employees, and from using Simpler materials in any manner. Simpler moved for summary judgment for breach of the Agreement alleging that it was entitled to damages for breach of contract against Wall, for numerous violations of the Agreement. (Docket No. 37.) The alleged violations included that of paragraphs 4 and 5 of the Agreement by Wall for copying, using or publishing Simpler Materials and for failing to return such materials. (Docket No. 37.) Further, it is alleged that Wall violated the Agreement by hiring a former Simpler employee, performing work for prohibited entities, and disclosing Simpler's confidential pricing structure to another entity during a bidding process in which both Simpler and Wall were competing to win a contract. (Docket No. 37.)
Summary judgment has been granted to Simpler at Count II, breach of contract. In the instant motion, Simpler claims that the award of summary judgment entitles it to injunctive relief, liquidated damages, and attorneys' fees under section 14.7 of the Agreement.
On February 24, 2006, Plaintiff filed an Amended Complaint asserting copyright infringement, breach of contract, civil conspiracy, conversion, unjust enrichment, and violation of the Lanham Act, 15 U.S.C. § 1125(a). (Docket No. 21.)
On October 12, 2006, Plaintiff filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law on Counts I, II, IV, and VI, i.e., copyright infringement, breach of contract, conversion and violations of the Lanham Act. (Docket No. 37.)
At oral argument on February 21, 2007, Judge Hardiman ruled from the bench that the Plaintiff was entitled to summary judgment at Count II, breach of contract. (Docket No. 62.)
Summary judgment in favor of the Plaintiff at Count II was entered in a March 1, 2007 Order by Judge Hardiman who held that "upon consideration of Plaintiff's motion for summary judgment (Doc. No. 37), the arguments of counsel made at the hearing on this matter on February 21, 2007, and all of the briefs and exhibits filed in support of and in opposition to the Motion, it is hereby Ordered that: (1.) Plaintiff's Motion as to Count II of the Complaint (breach of contract) against Defendant Wall is GRANTED." (Docket No. 66.) Additionally, Judge Hardiman ordered that the Plaintiff file a brief in support of damages and/or injunctive relief, and that Defendant file a response. (Docket No. 66.) Such order was stayed while the parties engaged in settlement negotiations. (Docket No. 69.)
Subsequently, Plaintiff filed a notice of additional breaches of contract and request for injunctive relief, alleging that Defendant had breached the Agreement by entering into a contract with the Joint Strike Fighter Program and had been a presenter at the Shingo Prize Conference in violation of the Agreement. (Docket No. 68.)
On April 6, 2007, the case was reassigned to the undersigned Judge. The parties continued to engage in settlement negotiations and mediation was suggested as an alternative by this Court. (Docket No. 72.)
The parties represented to the Court that neither settlement negotiations or mediation would be fruitful and the Court then ordered on June 13, 2007 that Plaintiff file a brief in support of ...