MEMORANDUM

J. FREDERICK MOTZ, District Judge

Plaintiffs Keith McGovern, Thomas Parry, Andrea Taylor, and Cheri Tetrault ("Plaintiffs") bring this action against Defendant Deutsche Post Global Mail, Ltd. ("DPGM"), their former employer, for a declaratory judgment that certain portions of the restrictive covenants in Plaintiffs' employment contracts with DPGM are unenforceable under Maryland law. Their suit is founded on this court's previous ruling in Deutsche Post Global Mail, Ltd. v. Conrad, 292 F. Supp. 2d 748 (D. Md. 2003) (" Conrad"), in which I found the non-solicitation provisions of identical employment contracts between DPGM and two other former employees unenforceable. DPGM initially filed a motion to dismiss Plaintiffs' claims for failure to join a necessary and indispensable party — namely, American International Mailing, Inc. ("AIM"), the corporation formed by Plaintiffs to compete with DPGM. After I denied that motion in McGovern v. Deutsche Post Global Mail, Ltd., 2004 WL 912843 (D. Md. Apr. 29, 2004) (" McGovern I"), DPGM filed eleven counterclaims against Plaintiffs and a third party complaint against AIM. Pending before me are four motions: (1) DPGM's renewed motion to dismiss for failure to join AIM as a necessary and indispensable party; (2) Plaintiffs' motion for summary judgment as to their declaratory judgment claim; (3) Plaintiffs McGovern, Parry, and Taylor's motion to dismiss Count II of DPGM's counterclaims; and (4) Plaintiff Tetrault's motion to dismiss Count II of DPGM's counterclaims. For the reasons discussed below, DPGM's renewed motion to dismiss will be denied, Plaintiffs' motion for summary judgment will be granted, and Plaintiffs' motions to dismiss Count II of DPGM's counterclaims will be denied without prejudice.

I. FACTS PROCEDURAL HISTORY

DPGM is the largest international mail company in the United States, possessing over thirty percent of the U.S. market. In 2002, it generated approximately $200 million in revenues. DPGM is a wholly owned subsidiary of Deutsche Post World Net ("DPWN"), a large multinational corporation headquartered in Germany, which in 2002, had revenues in excess of $39 billion and employed over 376,000 people worldwide. Plaintiffs were originally sales managers for a company called International Postal Consultants, Inc. ("IPC"). As IPC employees, Plaintiffs each signed an employment agreement, which included a restrictive covenant. Section 5 of the agreements provided in pertinent part:

(a) Sales Representative covenants and agrees that during the term of his/her employment with the Company, and in the event of and for a period of two (2) years following the termination of his employment with the Company for any reason, he/she shall not, without the prior written consent of the Company, directly or indirectly:

(i) Disclose in any manner to any person, firm or corporation except in good faith and in the normal and ordinary course of business of the Company, any information concerning any matters affecting or relating to the business of the Company or a Related Corporation (a Related Corporation is any corporation wholly or partly owned by the Company or wholly or partly owning the Company), including, but not limiting the generality of the foregoing, the identity of any of its customers, the revenues obtained from the sale of products or the rendition of services, its manner of operation, plans, processes, products, technology, or other data without regard to whether any of the foregoing will be found or deemed to be confidential, material or important, the parties hereto stipulating that, as between them, the same are material, confidential and important, and have a substantial affect [sic] upon the conduct of the business of the Company and any Related Corporation, or

(ii) Engage in any activity which may affect adversely the interests of the Company or any Related Corporation and the businesses conducted by either of them, including, without limitation, directly or indirectly soliciting or diverting customers and/or employees of the Company or any Related Corporation or attempting to so solicit or divert such customers and/or employees, or

(iii) Engage in any capacity whatsoever (whether as stockholder, officer, director, employee, agent, consultant, advisory or investor) in any form of business entity seeking to engage or engaging in any activity which is then in competition with the company or any Related Corporation in such geographical or territorial markets as the Company or any Related Corporation then is doing or seeking to do business. It is intended that this prohibition of competitive activity be proscribed only in such geographical area in which the Company then is engaged. Sales Representative agrees that the term, scope, and geographic area of the covenants contained herein are reasonable and necessary; however, if any court of competent jurisdiction shall determine this covenant to be unenforceable as to either the term, scope, or geographic area imposed above, then this covenant nevertheless shall be enforceable by such court as to such shorter term, such lesser scope or within such lesser geographic area as may be determined by the court to be reasonable and enforceable. If such court shall refuse to enforce this covenant as to a particular geographic area, then, in such event, the parties hereto declare and agree that for a period of two (2) years from the date on which employment of Sales Representative terminates for any reason, Sales Representative shall be prohibited from soliciting all persons to whom the Company has sold products or rendered services during the three (3) year period immediately preceding the termination of the Sales Representative.

DPGM acquired IPC in July 2000 through a stock purchase. Soon thereafter, DPGM assumed full control of IPC's operations and Plaintiffs became DPGM employees, although no formal hiring process took place. DPGM had employment contracts with its own employees that also contained non-compete provisions (albeit different from those in the IPC agreements), but it did not require Plaintiffs to sign these contracts once they became DPGM employees. DPGM also did not seek Plaintiffs' consent to assign the IPC agreements to it. In contrast, DPGM required employees from some other companies that it acquired — namely, Yellowstone, Quick Mail, and Sky Mail — to sign the DPGM agreement.

In November 2003, I decided Conrad. In Conrad, the defendants, Conrad and Gemmill, were identically situated as the Plaintiffs here — they were former IPC employees who had signed the same employment agreements with IPC and later became DPGM employees following the stock purchase. Conrad and Gemmill became dissatisfied with their employment at DPGM, and in February 2002, while still DPGM employees, they formed their own international mail business called Postal Logistics International ("PLI"). They did not, however, operate PLI until March 2002, after resigning from their jobs at DPGM. In April 2003, DPGM sued Conrad, Gemmill, and PLI. After asserting many claims in its complaint, DPGM ultimately chose to pursue only one claim against Conrad and Gemmill — violation of the non-solicitation provisions of the restrictive covenants in their employment agreements. On cross-motions for summary judgment, I held that the non-solicitation provisions, which prohibited Conrad and Gemmill from soliciting any of DPGM's customers for a period of two years, were overly broad, restricted more activity than necessary to protect DPGM's interests, and could not, under Maryland law, be "blue-penciled" to become enforceable. Conrad, 292 F. Supp. 2d at 755-56, 757-58.

Plaintiffs, like Conrad and Gemmill, were also unhappy with the changes that accompanied DPGM's purchase of IPC. In June 2003, they formed their own international mailing corporation, AIM. AIM did not conduct any business until January 8, 2004, when Plaintiffs resigned their employment with DPGM and began operations on behalf of AIM, directly competing with DPGM for international mail business. In fact, Plaintiffs notified DPGM on the day of their resignations that they were forming their own competing business.

Just prior to resigning from DPGM, Plaintiffs filed this declaratory judgment action on January 3, 2004, seeking a declaration that the restrictive covenants in their employment agreements were unenforceable. Then, on January 20, 2004, DPGM filed a verified petition and motion for injunctive relief in the Circuit Court of St. Louis County, Missouri against Plaintiff Tetrault, a Missouri citizen, and AIM. DPGM brought claims against Tetrault and AIM of misappropriation of trade secrets and confidential and proprietary information, tortious interference with existing and prospective contractual and business relationships, accounting, and unfair competition. It also alleged counts against Tetrault for breach of her employment contract and breach of fiduciary duty. After a hearing in the Missouri court regarding DPGM's motions, on February 5, 2004, that court applied non-mutual collateral estoppel to the issue of the non-compete provisions of the employment agreements, finding them unenforceable based on my decision in Conrad. See Deutsche Post Global Mail, Ltd. v. Tetrault, Cause No. 04CC-245, Division No. 13 (Cir.Ct. St. Louis Co. Feb. 5, 2004). The court did, however, grant a preliminary injunction only with respect to the use and dissemination of any confidential information or trade secrets gained from Tetrault's employment with DPGM. Trial on DPGM's claims against Tetrault and AIM was set to begin on June 14, 2004.

In the meantime, on January 30, 2004, DPGM filed a motion to dismiss the declaratory judgment action brought by Plaintiffs in this court for failure to join AIM as a plaintiff. Because the declaratory judgment action is premised on diversity, DPGM argued that joinder of AIM would be impossible because it is not diverse from DPGM. DPGM claimed that AIM was both a necessary and indispensable party under Fed.R.Civ.P. 19, and that accordingly, the case must be dismissed because it cannot proceed in AIM's absence. On April 28, 2004, in McGovern I, I decided that AIM was neither a necessary nor an indispensable party under Rule 19.

Subsequently, on May 12, 2004, DPGM filed an answer to Plaintiffs' complaint, as well as eleven counterclaims against Plaintiffs: (1) breach of contract; (2) breach of fiduciary duty; (3) misappropriation of trade secrets and confidential and proprietary information; (4) tortious interference with existing and prospective contractual and business relationships; (5) civil conspiracy; (6) unfair competition; (7) unjust enrichment; (8) breach of duty of loyalty; (9) accounting; (10) replevin; and (11) conversion. DPGM alleges that Plaintiffs embarked on a scheme to divert millions of dollars in business from DPGM by using its proprietary and confidential information and soliciting and obtaining business from its customers. It also claims Plaintiffs were telling customers that DPGM had merely changed its name to AIM, were interfering with DPGM's pick-up of customer mail, and were misrepresenting to DPGM customers that DPGM no longer provided certain services. DPGM also filed a third party complaint against AIM, asserting six claims; these included five of the same counts as asserted against Plaintiffs (Counts III, IV, VI, VII, and IX), and one new count for intentional interference with contract.

One week later, DPGM filed a renewed motion to dismiss the action for failure to join AIM as a necessary and indispensable party. The same day, Plaintiffs filed their motion for summary judgment as to their declaratory judgment claim. Then, in early June, McGovern, Parry, and Taylor filed a motion to dismiss Count II of DPGM's counterclaims — a claim for breach of fiduciary duty. Tetrault filed a separate motion to dismiss all of DPGM's counterclaims, but later withdrew that motion with respect to all counts except for Count II. The arguments with respect to the two motions to dismiss DPGM's Count II are identical.

II. DPGM'S RENEWED MOTION TO DISMISS A.

Fed.R.Civ.P. 19 provides for the joinder of persons needed for just adjudication and sets out a two-part inquiry. First, under Rule 19(a), the court must determine whether a person is necessary to the proceeding because of his relationship to the matter under consideration. Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 440 (4th Cir. 1999). A person is necessary to the action if: (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject matter of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. Fed.R.Civ.P. 19(a). If the person is deemed necessary and is subject to service of process, he shall be joined as a party so long as joinder will not deprive the court of subject matter over the action. Id.

If, however, the person cannot be joined because his joinder destroys diversity, the court must determine whether the action can continue in his absence, or whether the person is indispensable pursuant to Rule 19(b) and the action must be dismissed. Owens-Illinois, 186 F.3d at 440. Rule 19(b) directs the court to determine "whether in equity and good conscience" the action should proceed among the parties before it. The factors the court must consider to make this determination are: (1) to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; and (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. Fed.R.Civ.P. 19(b). Rule 19(b) does not instruct the court as to how much weight each of the four factors must be given; the court must make this determination based on the facts of the particular case and in light of the "equity and good conscience" test. Associated Dry Goods Corp. v. Towers Fin. Corp., 920 F.2d 1121, 1124 (2d Cir. 1990) (citing 7 Charles Alan Wright et al., Federal Practice and Procedure § 1608 (3d ed. 2001)).

The Rule 19 inquiry is a practical one and rests in the sound discretion of the trial court. Heinrich v. Goodyear Tire Rubber Co., 532 F. Supp. 1348, 1359 (D. Md. 1982). However, dismissal of a case for nonjoinder is a drastic remedy and should be employed sparingly. Nat'l Union Fire Ins. Co. of Pittsburgh, Pennsylvania v. Rite Aid of South Carolina Inc., 210 F.3d 246, 250 (4th Cir. 2000). Generally dismissal is only ordered when the resulting defect cannot be remedied and prejudice or inefficiency will certainly result from continuing with the action without the absent defendant. Owens-Illinois, 186 F.3d at 441.

In McGovern I, DPGM argued that it intended to bring various claims against Plaintiffs and AIM for which relief could not be granted unless AIM was joined. I noted that courts must not base the Rule 19 inquiry on claims that a party plans to bring, but rather on the pleadings as they stand at the time of the proposed joinder. 2004 WL 912843, at * 4 (citing Associated Dry Goods Corp., 920 F.2d at 1123-24; La Chemise Lacoste v. General Mills, Inc., 53 F.R.D. 596, 601 (D. Del. 1971), aff'd, 487 F.2d 312, 314 (3d Cir. 1973)). Latching on to this language, DPGM has now asserted claims against Plaintiffs and AIM. These claims do not, however, render AIM a necessary or indispensable party.

B.

The first way a person can be deemed necessary to an action is if in the person's absence complete relief cannot be accorded among those already parties. Fed.R.Civ.P. 19(a)(1). To begin, DPGM appears to have misconstrued my holding to mean that if it asserted claims against AIM, those claims could be considered in the Rule 19 inquiry. This is simply counter-intuitive and circular. On the one hand, by asserting the claims, DPGM attempts to join AIM while at the same time arguing that AIM cannot be joined. More importantly, DPGM's understanding distorts the concept of "complete relief." Clearly AIM's presence would be necessary to afford complete relief to DPGM on its claims against AIM, but deciding the joinder issue on this basis would be an improper application of Rule 19. Complete relief under Rule 19 refers to relief as between the persons already parties, not as between an existing party and the absent person whose joinder is sought. Heinrich, 532 F. Supp. at 1359. Thus, any claims DPGM has against AIM must not be considered in the Rule 19 inquiry because AIM is the party to be joined — it is not already a party to the case.

Considering only Plaintiffs' declaratory judgment claim and DPGM's counterclaims, AIM is still not necessary to afford the parties complete relief. The reasons that complete relief can be afforded to Plaintiffs on their claim are outlined in McGovern I. 2004 WL 912843, at *4. Even though DPGM has now asserted eleven counterclaims against Plaintiffs, it can still be afforded complete relief without AIM. If DPGM prevails, Plaintiffs will be liable to DPGM, will have to return any of DPGM's confidential information that they used improperly, and will have to account for the profits they made based on their misconduct. The fact that AIM is not a party to the action will not make a victory by DPGM ineffectual, for as mentioned in McGovern I, there is no evidence that AIM consists of any employees other than Plaintiffs. If Plaintiffs cannot use DPGM's information, no one will be left at AIM who can use this information either; and if Plaintiffs must account for their profits, they are essentially accounting for the profits of AIM. Unlike other cases, such as Torrington Co. v. Yost, 139 F.R.D. 91, 93 (D.S.C. 1991), this is not a situation where Plaintiffs took DPGM's information to an entirely independent third party employer that could continue to use it even if Plaintiffs were enjoined.

The second possible way AIM could be deemed necessary is if it claims an interest relating to the subject matter of the action and is so situated that the disposition of the action in its absence may as a practical matter impair or impede its ability to protect that interest. Fed.R.Civ.P. 19(a)(2)(i). For the same reasons AIM was not necessary under this provision in McGovern I, it is not necessary now, despite the additional counterclaims asserted by DPGM. That is to say, if a party to an action is able to adequately represent an absent person's interests, then the absent person's interests are not impaired by its absence from the suit. Nat'l Union Fire, 210 F.3d at 250-51. As stated supra, the Rule 19 inquiry is a practical one, not a theoretical one. Heinrich, 532 F. Supp. at 1359. In this case, the interests of the Plaintiffs and AIM are completely aligned because Plaintiffs are the officers, directors, and sole employees of AIM. Accordingly, AIM's absence does not affect its ability to protect its interests with respect to DPGM's counterclaims because Plaintiffs will protect AIM's interests.

The final way in which a person may be necessary under Rule 19 is if any of the persons already parties would be subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations if the absent person is not joined. Fed.R.Civ.P. 19(a)(2)(ii). DPGM has already brought suit against Tetrault and AIM in Missouri. As I explained in McGovern I, the Missouri court has already deferred to the ruling I made in Conrad regarding the enforceability of the employment agreements in that case, and there is no reason to believe the court would act any differently with respect to Plaintiffs' claim about their employment contracts. With respect to DPGM's claims, it is conceivable that DPGM or Tetrault could be subject to double or inconsistent obligations because they are litigating similar claims in the Missouri action and in this action. However, AIM's absence from this case has nothing to do with these possible consequences — the risk of multiple or inconsistent obligations was incurred by DPGM when it brought claims against Tetrault and Plaintiffs in two different actions. More importantly, Rule 19 is intended to protect parties from double, multiple, or inconsistent obligations caused by the claimed interest of the absent person. Fed.R.Civ.P. 19(a)(2)(ii). AIM, the absent person in this case, is not likely to bring a separate action against DPGM because on the one hand, its interests are being protected by Plaintiffs, and on the other hand, not being a party to the employment agreements, it has no basis for a suit against DPGM. Thus, the real risk Rule 19 hopes to avoid is simply not present in this case.

C.

Even if I were to find that AIM is necessary under Rule 19(a), it is not indispensable under Rule 19(b). As in McGovern I, the balance of the four factors of Rule 19(b), in the context of the "equity and good conscience" test, weigh against dismissal based on AIM's absence.

The first factor is to what extent a judgment rendered in the person's absence might be prejudicial to those already parties. Because Plaintiffs and AIM are, as a practical matter, interchangeable, DPGM would not be prejudiced if AIM is not joined. As explained supra, the effect of a judgment in DPGM's favor on its counterclaims would not be undermined because without Plaintiffs, AIM cannot independently benefit from any confidential information Plaintiffs may have obtained.

The second factor is to what extent, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided. In McGovern I, I held that I could limit my decision to the specific provisions of the employment agreements at issue in Conrad. 2004 WL 912843, at *6. This is no longer the case because DPGM has asserted claims about the use of confidential information and other alleged misconduct. However, addressing these issues with respect to Plaintiffs does not create any prejudice for DPGM for the reasons I have already described with respect to the aligned interests of Plaintiffs and AIM.

The same reasoning applies to the third Rule 19(b) factor — whether a judgment rendered in the person's absence would be adequate. Because AIM would be incapable of operating without Plaintiffs, a judgment in DPGM's favor on the counterclaims would adequately prevent any future violations by AIM. Moreover, DPGM still has the opportunity to completely ensure that AIM's operations are terminated because of the claims it has asserted against AIM in Missouri.

As to the final Rule 19(b) factor, as stated in McGovern I, even though all the parties could be joined in one action in Maryland state court, dismissing this action would not increase judicial efficiency. 2004 WL 912843, at *6. Since Plaintiffs filed an action in Maryland state court, there would still be another similar case pending in Missouri state court. Furthermore, Plaintiffs would be forced into a forum of DPGM's own choosing.

For these reasons, AIM is neither necessary nor indispensable under Rule 19, and DPGM's motion to dismiss this action due to its absence should accordingly be denied.

III. PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Plaintiffs, relying primarily on my decision in Conrad, move for summary judgment on their declaratory judgment claim that the non-solicitation and non-competition provisions of their employment agreements (Sections 5(a)(ii) and 5(a)(iii)) are unenforceable. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The materiality requirement means that only those factual disputes that might affect the outcome of the suit preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In order for there to be a "genuine" issue of material fact, the evidence must be such that a reasonable jury could return a verdict for the non-moving party. Id. DPGM defends against the motion by arguing that Conrad was incorrectly decided, but that even if it was not, this case is distinguishable from Conrad and there remain genuine disputes of material fact precluding summary judgment. I am not persuaded by either argument.

A.

Restrictive covenants are upheld in Maryland if the restraints are confined within limits that are no wider as to area and duration than are reasonably necessary for the protection of the business of the employer and do not impose undue hardship on the employee or disregard the interests of the public. Silver v. Goldberger, 231 Md. 1, 7, 188 A.2d 155, 158 (1963). See also Gill v. Computer Equip. Corp., 266 Md. 170, 180, 292 A.2d 54, 59 (1972); Ruhl v. F.A. Bartlett Tree Expert Co., 245 Md. 118, 123-24, 225 A.2d 288, 291 (1967); Macintosh v. Brunswick Corp., 241 Md. 24, 31, 215 A.2d 222, 225 (1965). Maryland law permits courts to "blue pencil," or excise language from restrictive covenants that is unnecessarily broad. See, e.g., Tawney v. Mut. Sys. of Maryland, Inc., 186 Md. 508, 521, 47 A.2d 372, 379 (1946); Fowler v. Printers II, Inc., 89 Md. App. 448, 465-66, 598 A.2d 794, 802 (1991). Such editing has traditionally been limited to removing the offending language without supplementing or rearranging the remaining language — the so-called "strict divisibility" rule. Fowler, 89 Md. App. at 465-66, 598 A.2d at 794.

In Conrad, DPGM only wished to enforce Section 5(a)(ii) of the agreements, and only then to a limited extent. Thus, in that case, I struck Section 5(a)(iii) from the agreements in its entirety under the blue pencil rule. Here, DPGM has not argued that only certain portions of the agreements are enforceable. Nevertheless, Section 5(a)(iii) is so overly broad that even if DPGM wished to enforce it, it must be stricken. The provision restricts employees from engaging in any capacity whatsoever in any form of business entity engaging in any activity which is in competition with DPGM or any related corporation in such geographical or territorial markets as DPGM or any related corporation is doing business. As discussed supra, not only is DPGM the largest international mail company in the United States, but it is also owned by Deutsche Post World Net, a huge multinational corporation that has hundreds of different companies under its banner, with businesses including express, logistics, international mail, and finance industries. Barring Plaintiffs from engaging in any activity that competes with any of the businesses conducted by the DPWN companies would restrict far more activity than necessary to protect DPGM's interests.

Section 5(a)(ii) of the agreements restricts Plaintiffs from engaging in any activity which may affect adversely the interests of DPGM or any related corporation and the businesses conducted by either of them, including directly or indirectly soliciting or diverting customers and/or employees of DPGM or any related corporation or attempting to solicit or divert these customers or employees. In Conrad, DPGM only wished to enforce the portion of this provision that prohibited direct or indirect solicitation or diversion of DPGM customers. Although I did not address the remainder of the provision in Conrad, it would be unenforceable for the same reasons that Section 5(a)(iii) is enforceable.

With respect to the non-solicitation provisions only, DPGM has not persuaded me that my holding in Conrad was incorrect. It argues that Maryland courts routinely enforce restrictions barring solicitation of all of an employer's customers. See, e.g., Gill, 266 Md. at 180, 292 A.2d at 59; Tuttle v. Riggs-Warfield-Roloson, Inc., 251 Md. 45, 47, 246 A.2d 588, 589 (1968). However, as Plaintiffs point out, these cases do not say that Maryland courts must enforce all such restrictions. Courts must analyze restrictive covenants in the context of the specific facts of the case. Ruhl, 245 Md. at 123, 225 A.2d at 291. As I explained in Conrad, the facts in Gill and Tuttle are distinguishable because the customer bases in each of those cases were substantially smaller than in this case. See Conrad, 292 F. Supp. 2d at 755. Moreover, in more recent cases, Maryland courts have specifically criticized agreements that restrict former employees from dealing with all of an employer's clients. See PADCO Advisors, Inc. v. Omdahl, 179 F. Supp. 2d 600, 608 (D. Md. 2002); Holloway v. Faw, Casson Co., 78 Md. App. 205, 225, 552 A.2d 1311, 1321 (1989), rev'd in part on other grounds, 319 Md. 324, 572 A.2d 510 (1990).

Not only has DPGM failed to demonstrate that the employment agreements are enforceable, but it has also failed to show that the non-solicitation provision can be blue penciled by adding language that restricts the applicability of the provision to customers with whom Plaintiffs worked while employees of DPGM. While the Court of Special Appeals in Holloway employed a flexible approach to blue penciling that would allow slight modification of the terms of the contract, 78 Md. App. at 238, 552 A.2d at 1327-28, the Court of Appeals specifically refused to address whether this approach was part of Maryland law. Holloway, 319 Md. at 326-27, 572 A.2d at 511. Furthermore, in a later case, the Court of Special Appeals confirmed that the strict divisibility approach is "entirely in accord with Maryland law." Fowler, 89 Md. App. at 465-66, 598 A.2d at 802. DPGM appears convinced that if forced to address the issue, the Court of Appeals would adopt the Holloway flexible approach, as several other states and some legal scholars have done. However, it has no proof to support this assertion. While it is true that a federal court can consider treatises, opinions of lower courts, and well-reasoned dicta if a state's law is unclear or undeveloped, Wells v. Liddy, 186 F.3d 505, 527-28 (4th Cir. 1999), here, the law is both developed and clear. Maryland courts have consistently approved the strict divisibility approach, and when the Court of Appeals had the opportunity to endorse the flexible approach, it expressly refused to do so.

B.

DPGM further argues that even if Conrad was correct, Plaintiffs are still not entitled to summary judgment because of factual differences between the two cases and remaining factual disputes. Both of these arguments fail as well.

1.

First, DPGM claims that Plaintiffs are barred from relief under the clean hands doctrine. This doctrine prohibits the court from granting relief to anyone who has engaged in inequitable, bad faith conduct. Keystone Driller Co. v. Gen. Excavator Co., 290 U.S. 240, 244-45 (1933); Smith v. Cessna Aircraft Co., 124 F.R.D. 103, 105-106 (D. Md. 1989). DPGM argues that Plaintiffs' alleged wrongful conduct in passing off to DPGM customers that DPGM changed its name to AIM, interfering with DPGM's mail pick-ups, and sabotaging DPGM's customer relationships precludes judgment in their favor on the declaratory judgment count.

The clean hands doctrine was designed to safeguard the judicial process, not to protect the parties. Smith, 124 F.R.D. at 106; see also Keystone Driller, 290 U.S. at 244 ("[A complainant] must come into court with clean hands. He must be frank and fair with the court, nothing about the case under consideration should be guarded, but everything that tends to a full and fair determination of the matters in controversy should be placed before the court") (citing Story's Equity Jurisprudence (14th Ed.) § 98). Furthermore, a court can only deny relief to a plaintiff with unclean hands if there is a close nexus between the plaintiff's unethical conduct and the transactions on which he seeks relief. Uwimana v. Republic of Rwanda, 274 F.3d 806, 810 (4th Cir. 2001) (citing Keystone Driller, 290 U.S. at 245 (the conduct by the party with unclean hands must have an "immediate and necessary relation" to the equity that the party seeks)).

In this case, none of Plaintiffs' alleged misconduct has yet been proven. Even if it is true, however, it would not bar summary judgment for Plaintiffs because a close nexus does not exist between the misconduct and the issue of the contracts' enforceability. All of DPGM's complaints about Plaintiffs relate to conduct engaged in after they breached the contracts and left their positions at DPGM. The allegations do not focus on Plaintiffs' ability to solicit DPGM's customers, which is the sole issue in Plaintiffs' claim, but on bad faith conduct surrounding those solicitations, such as passing off AIM as DPGM and misleading customers about DPGM. Indeed, these allegations are the basis of some of DPGM's counterclaims against Plaintiffs. Such conduct is separate from the enforceability of the contracts — indeed, the conduct could occur and Plaintiffs could potentially be held accountable for it even if the contracts never existed. As such, the behavior on which the unclean hands argument is based bears no "immediate and necessary relation" to the enforceability of the contracts. See, e.g., Smith, 124 F.R.D. at 107-08 (unethical behavior related to issue of damages, not liability, and thus did not bar plaintiff from recovery as to liability). Furthermore, this is not the type of inequity against which the doctrine was intended to protect, where the plaintiff's unethical behavior has worked a fraud on the court and undermined the judicial process. Cf. id. at 107 (plaintiff who filed suit seeking compensation for income lost while recuperating from accident was barred from recovering damages because he provided false tax information regarding the lost income).

2.

Finally, DPGM claims that summary judgment is inappropriate in this case because discovery has not yet occurred. It asserts that there are genuine disputes of material fact with respect to some questions, and also that further discovery is necessary to determine whether disputes exist with respect to other issues. To this end, DPGM has filed an affidavit under Rule 56(f) requesting more discovery.

The alleged disputes of material fact (or potential disputes, pending discovery) noted by DPGM relate to the following issues: (1) the formation, operation, and finances of AIM, including the date AIM commenced operations; (2) whether Plaintiffs ratified the employment contracts; (3) when, if ever, Taylor was told about the obligations in her employment agreement; (4) whether Plaintiffs returned all of DPGM's property upon resignation; (5) DPGM's market share in each of Plaintiffs' respective territories; and (5) the extent to which Plaintiffs' working conditions as sales representatives changed once DPGM purchased IPC. Even if these were all genuine disputes, none of them is material to the issue of the enforceability of Plaintiffs' employment contracts. The parties do not dispute the terms of the agreements or DPGM's general market share and geographical scope within the United States. Moreover, while Plaintiffs initially claimed in their complaint that they did not ratify the employment agreements, they appear to have dropped that claim and argue that, even assuming they did ratify the contracts, the restrictive covenants are still unenforceable. None of the disputes or possible disputes set forth by DPGM would change the outcome of Plaintiffs' suit, and accordingly, they do not warrant denial of summary judgment.

IV. PLAINTIFFS' MOTION TO DISMISS DPGM'S COUNT II

In Hartlove v. Maryland Sch. for the Blind, 11 Md. App. 310, 681 A.2d 584 (1996), the Maryland Court of Special Appeals recognized the independent tort of breach of fiduciary duty for the first time. Subsequently, the Court of Appeals addressed the issue in Kann v. Kann, 344 Md. 689, 690 A.2d 509 (1997). There, the court held that "there is no universal or omnibus tort for the redress of breach of fiduciary duty by any and all fiduciaries." Id. at 713, 690 A.2d at 521. The court went on, however, to explain:

This does not mean that there is no claim or cause of action available for breach of fiduciary duty. Our holding means that identifying a breach of fiduciary duty will be the beginning of the analysis, and not its conclusion. Counsel are required to identify the particular fiduciary relationship involved, identify how it was breached, consider the remedies available, and select those remedies appropriate to the client's problem.

I am persuaded that a careful reading of Kann and its progeny leads to the conclusion that breach of fiduciary duty can give rise to a cause of action — that is, it can be a component of a cause of action — but it cannot be a cause of action standing alone. See Swedish Civil Aviation Admin., 190 F. Supp. 2d at 801. Indeed, the Court of Appeals implied that this was the proper understanding of Kann in Int'l Brotherhood of Teamsters v. Willis Corroon Corp. of Maryland, 369 Md. 724, 727 n. 1, 802 A.2d 1050, 1052 (2002), when it stated in a footnote, "In Kann. we pointed out that, although the breach of fiduciary duty may give rise to one or more causes of action, in tort or in contract, Maryland does not recognize a separate tort action for breach of fiduciary duty" (emphasis added). Even in the cases where it appeared that courts were recognizing the tort of breach of fiduciary duty, the breach of the particular fiduciary duty at issue actually constituted a separate, cognizable cause of action. See, e.g., BEP, Inc., 174 F. Supp. 2d at 406-07 (breach of duty of loyalty of employee to employer); Ins. Co. of North America v. Miller, 362 Md. 361, 378-80, 765 A.2d 587, 596-97 (2001) (breach of duty of loyalty of agent to principal).

In this case, DPGM asserts a separate claim against Plaintiffs for breach of duty of loyalty in Count VIII. The allegations relevant to Count VIII are identical to those describing Count II for breach of fiduciary duty. In both counts, DPGM claims that "Plaintiffs embarked on an unlawful scheme, both during their employment at DPGM and subsequent to their resignations, to divert millions of dollars in business from DPGM, after DPGM had given them access to its most highly sensitive Confidential information, and to wilfully misuse this highly sensitive business information." (DPGM's Counterclaim ¶¶ 39, 77.) Aside from small changes in wording, the remaining paragraphs of each count also parallel each other — specifically, Paragraphs 40-45 under Count II include the exact same allegations as Paragraphs 78-82 under Count VIII.

In sum, because the basis for DPGM's count for breach of fiduciary duty is the same as the basis for its count for breach of duty of loyalty, the breach of fiduciary duty count must be dismissed. That is, under Kann, there is no independent tort for breach of fiduciary duty, but such a breach may give rise to a cause of action if a particular duty is identified and there is an available remedy for the breach. 344 Md. at 713, 690 A.2d at 521. In this case, DPGM's allegations under the duty of loyalty count satisfy these requirements. Maryland law recognizes a cause of action for breach of the fiduciary duty of loyalty of an employee to his employer under certain circumstances. See Quality Sys., Inc. v. Warman, 132 F. Supp. 2d 349, 354 (D. Md. 2001). Under Kann, Count II cannot stand on its own, but the conduct forming the basis of Count II can be and is in fact addressed in Count VIII, the duty of loyalty count. See Swedish Civil Aviation Admin., 190 F. Supp. 2d at 801; Kerby, 992 F. Supp. at 803.

Nevertheless, I will not grant Plaintiffs' motion at this time. DPGM argues in a footnote that Plaintiffs cannot show without discovery that Maryland law applies to this count. Although DPGM has not identified other states whose laws might apply, it is conceivable that after discovery, DPGM will be able to state a claim for breach of fiduciary duty under another state's law with respect to at least some of the conduct alleged. In light of that fact and because the scope of discovery on DPGM's breach of duty of loyalty claim presumably will parallel the scope of discovery on any breach of fiduciary duty claim, I will deny Plaintiffs' motion without prejudice to the arguments presented in the motion being renewed by a motion for summary judgment after the completion of discovery.

A separate order is being entered therewith.

ORDER

1. DPGM's renewed motion to dismiss for failure to join AIM is denied;

2. Plaintiffs' motion for summary judgment on their declaratory judgment claim is granted;

3. Plaintiffs McGovern, Parry, and Taylor's motion to dismiss Count II of DPGM's Counterclaim is denied; and

4. Plaintiff Tetrault's motion to dismiss Count II of DPGM's Counterclaim is denied.