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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : GLYNN INTERACTIVE, INC. : v. : Civil Action No. DKC 2003-0449 : ITELEHEALTH, INC. : MEMORANDUM OPINION Presently pending and ready for resolution in this breach of contract and tort case are the motions (1) by Defendant iTelehealth, Inc. for partial summary judgment and (2) by

Plaintiff Glynn Interactive, Inc. to seal the exhibits in its opposition to Defendant's partial summary judgment motion. The

issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the

reasons that follow, the court will grant in part the motion for partial summary judgment and will deny the motion to seal. I. Background A. Factual Background The following are facts either uncontroverted or viewed in the light most favorable to Plaintiff Glynn Interactive, Inc. On May 7, 2002, Plaintiff and Defendant iTelehealth, Inc.

entered into a Prime/Subcontractor Teaming Agreement (Teaming Agreement) to submit a proposal in response to a grant

solicitation issued by the National Institutes of Mental Health (NIMH). Under the Teaming Agreement, Defendant was designated

as the prime contractor responsible for preparing and submitting the proposal to NIMH, while Plaintiff was designated as the subcontractor to assist Defendant in the work. Defendant submitted the proposal for the grant to NIMH, which subsequently accepted the proposal. Defendant entered During October attempted to

into a contract with NIMH on September 26, 2002. and November 2002, Plaintiff and Defendant

negotiate a subcontract in order to perform the web design work under the NIMH contract awarded to Defendant, but these efforts failed. On November 17, 2002, Defendant notified Plaintiff by

certified mail to cease all performance of work in connection with the NIMH contract. subcontract, Defendant Following the failure to execute a then hired another web designer to

replace Plaintiff. B. Procedural Background On January 15, 2003, Plaintiff filed a complaint in the Circuit Court for Montgomery County, alleging: (1) breach of contract, copyright secrets. (2) unjust enrichment, and (5) (3) account stated, of (4)

infringement,

misappropriation

trade

Defendant subsequently removed the case to this court.

On July 24, 2003, Defendant moved for partial summary judgment, 2

pursuant to Fed.R.Civ.P. 56(b), on all claims except unjust enrichment. II. Standard of Review It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly

exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate.

Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4 th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1987). The moving

party bears the burden of showing that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Catawba Indian

Tribe of South Carolina v. State of S.C., 978 F.2d 1334, 1339 (4th Cir. 1992), cert. denied, 507 U.S. 972 (1993). When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the

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party opposing the motion.

See U.S. v. Diebold, 369 U.S. 654,

655 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). A party who bears the burden of proof on a

particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an

essential element . . . necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323. Thus, on those

issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. See Anderson, 477 U.S. at 256; Celotex Corp., 477 U.S. at 324. However, "[a] mere scintilla of evidence in support of the nonmovant's judgment." position will not defeat a motion for summary

Detrick v. Panalpina, Inc. , 108 F.3d 529, 536 (4th

Cir.), cert. denied sub nom., Gold v. Panalpina, Inc., 522 U.S. 810 (1997). There must be "sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." at 249-50 (citations omitted). III. Analysis A. Breach of Contract 4 Anderson, 477 U.S.

The Teaming Agreement appears to serve as the basis for this claim.1 Plaintiff claims that Defendant's decisions not to pay

it the purported amount due and to hire another subcontractor after negotiations stalled constitute a breach of contract. Defendant, on the other hand, contends that the Teaming

Agreement was merely a letter of intent to form a subcontract if and when Defendant received the NIMH grant. The language of the Teaming Agreement makes clear, in numerous provisions, that the document is not contractually binding beyond the proposal submission phase and contemplates future negotiations between the parties. For instance, the

Teaming Agreement states that Plaintiff and Defendant will enter into a subcontract "subject to mutual agreement on prices and other terms and conditions." Paper 27, Ex. 4 at

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