416 F.3d 671 (7th Cir. 2005), 04-1133, Dumas v. Infinity Broadcasting Corp.

Docket Nº:04-1133.
Citation:416 F.3d 671
Party Name:Cliff DUMAS, Plaintiff-Appellant, v. INFINITY BROADCASTING CORPORATION and WUSN-FM, Defendants-Appellees.
Case Date:August 01, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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416 F.3d 671 (7th Cir. 2005)

Cliff DUMAS, Plaintiff-Appellant,



No. 04-1133.

United States Court of Appeals, Seventh Circuit.

August 1, 2005.

Argued Sept. 15, 2004.

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Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 4713 – James F. Holderman, Judge.

Clair Dickinson (argued), Akron, OH, for Plaintiff-Appellant.

Alyssa M. Campbell (argued), Williams Montgomery & John, Chicago, IL, for Defendants-Appellees.

Before FLAUM, Chief Judge, and COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

On July 7, 2003, Cliff Dumas, a country music radio personality, filed a diversity action in the United States District Court for the District of New Mexico against Infinity Broadcasting Corporation ("Infinity") and its Chicago affiliate, WUSN-FM ("US-99"). In his complaint, Dumas alleged that he was entitled to monetary damages for breach of contract and promissory estoppel arising out of an unfulfilled employment agreement with US-99. Shortly after the complaint was filed, the case was transferred on Infinity's motion to the United States District Court for the Northern District of Illinois. Following discovery, the defendants moved for summary judgment pursuant to Fed.R.Civ.P. 56. The district court agreed and granted the defendants' motion, finding that Dumas' claim for breach of contract was barred by the Illinois statute of frauds and, as a result, his promissory estoppel claim was untenable. We affirm.

I. Background

Although country music is most often thought of in terms of geographical locales such as Nashville, Tennessee and Dallas, Texas, it seems that Canadians enjoy entertainers such as Anne Murray, Patsy Cline and Johnny Cash just as much as their American counterparts. Living proof of this phenomenon is Cliff Dumas, a country music radio broadcaster with an excess of 24 years of experience, most of it in places such as Calgary and Toronto in Canada. Throughout his career, Dumas has hosted a number of successful radio programs, an example of which is the syndicated "Canadian Country Countdown," which was broadcast throughout Canada. Indeed, in 1990 Dumas was honored by the Country Music Association and presented with the "Medium Market Broadcast Personality of the Year," the first time such an award was given to a radio host outside the United States.

Beginning in 2000, Dumas attempted to leverage his accomplishments in Canadian radio and began soliciting employment in the United States market. At some point, toward the end of April of that year, he was contacted by Scott Aurand (a.k.a. Justin Case), the program director of a country music radio station in Chicago, US-99. Aurand expressed an interest in flying Dumas and his wife to meet with himself and other US-99 executives regarding possible employment opportunities. Dumas accepted Aurand's offer, and while in Chicago spoke with Aurand and the US-99's general

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manager, Steve Ennen, concerning a possible opening for Dumas as host of the US-99 morning show. At this point it became evident that although Dumas was negotiating directly with Aurand, it was Ennen and others in management positions at the station and Infinity that would have the final decision-making authority as to his hiring. Upon his return to Canada, Dumas was informed by Aurand via e-mail that based on his salary and bonus requests, as well as job expectations, Ennen "would not present [the proposal] to corporate", meaning the deal was effectively dead.1 With the two parties far apart from a compromise on monetary and other issues2 concerning the employment opportunity, negotiations broke down without Infinity ever making an official job offer and Dumas began pursuing other opportunities.

Shortly thereafter, Dumas was contacted by Citadel Communications Corporation, another broadcasting company, about hosting a morning show on a station they owned in Albuquerque, New Mexico. An interview was arranged and a few days later Dumas accepted the position, officially taking over the morning program at KRST and moving his family to New Mexico at the end of May 2000.

Approximately a year and a half passed without any further negotiation or contact between Dumas and the management of US-99. This changed in December of 2001, however, when Dumas and Aurand began communicating once again. Initially, the conversations between the two were friendly interactions about how each party was faring as well as about a small debt that Dumas owed Aurand during his Chicago visit in 2000. However, beginning in February of 2002, the two men once again began discussing the possibility of Dumas hosting a radio program at US-99.

In a series of e-mails exchanged between Dumas and Aurand beginning on or about February 22, 2002, Dumas related his intention to leave his job at KRST (Albuquerque) and informed him that he had sold his house in order that he might be ready to move when "the right opportunity" presented itself. Aurand responded by telling Dumas that he should keep in touch.

Allegedly, over the next month-and-a-half, a number of phone calls ensued between the two, culminating in an April 8, 2002 e-mail in which Aurand asked Dumas to identify what salary range he would

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consider accepting for an opportunity to host the morning show at US-99, 3 with the choices ranging from $125,000 to $250,000. Dumas replied that "something in the 175 to 225 range seems right."

Aurand replied with an e-mail dated April 29, 2002 wherein he informed Dumas that "[i]t is important that we start talking 'real' opportunity . . . [t]here may be 'real' opportunity [at the station for you] . . . I'm going to need a regular influx of tape."4 In addition, the e-mail sets out numerous other talking points that need to be discussed, such as: (a) whether or not Dumas' personality and radio demeanor would fit in at the station; (b) who would join him, if anyone, on the air; (c) whether Dumas intended to stay with the station for an extended period of time; (d) whether Dumas could work effectively as a leader; and (e) whether Dumas and US-99 could compromise on the issue of salary.5 Dumas claims that, following this e-mail, he and Aurand had a number of subsequent telephone conversations regarding the philosophy (i.e., the age, gender and income bracket of the targeted audience) of the proposed morning show, the time frame of Dumas' potential employment as well as the financial terms of the potential agreement. Indeed, Dumas alleges that all the components of a contract were in place such as salary ($175,000 to start), start date (August 4, 2002) and contract length (5 years with an option for 5 more) and that the contract was orally consummated via telephone on May 20, 2002.

On May 20, Aurand informed Dumas via e-mail that, because the morning show at US-99 had dropped to 16th in the most recent ratings, the station was "moving forward with [their] plans to bring [him] in." Aurand outlined a formula for the morning show and informed Dumas in plain terms that his goal was to move the show up in the ratings. With the help of the right new morning host, Aurand believed he would be able to move the show from where it presently was in the ratings to the top 8 among all radio formats in the Chicago market.6

Despite Aurand's enthusiasm for Dumas in late May, the record reflects that Dumas was having a problem obtaining the necessary release before negotiating with any interested parties from KRST.7 Indeed,

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on June 4, 2002, Aurand advised Dumas in writing that: "We can't do anything without a release . . . [v]erbal does not count for our legal team . . . [b]est of luck securing the paper work." Dumas responded by writing that he was "just waiting for the . . . paper work" from management and informed Aurand that he had advised KRST that June 21, 2002 would be his last day at that station. Apparently Aurand was surprised at this turn of events and wrote back the next day stating: "You are leaving – as in done? Do you have the option of staying? You said you were just getting a waiver to look at opportunities. Hope you did not burn a bridge." Shortly thereafter Dumas did obtain a written release from his contract on June 6, 2002, which he in turn forwarded to Aurand, and tendered his resignation to KRST effective June 24, 2002. Dumas claims that shortly after receiving the June 4 e-mail he contacted Aurand on the telephone and was assured that once Infinity's lawyers received the written release document Dumas' employment would be assured, but admits that Aurand also told him that he should contact Eric Logan (Aurand's supervisor), who had recently been hired as the operations manager at US-99 and would have to "sign off" on the hiring of Dumas.

On June 13, 2002, Dumas took Aurand's advice and sent an e-mail to Logan introducing himself and stating that he looked "forward to talking . . . about what [he could] bring to the station and the company." In the same e-mail, Dumas informed Logan that he had been released from his contract "to pursue this opportunity," and reminded Logan of the "discussions [he and Aurand] had about taking over the morning show in August." The remainder of the e-mail to Logan contains a protracted recitation of Dumas' qualifications for the morning host position and closes with a reference to the fact that Aurand was aware of his merits as a performer including the tapes that he had previously forwarded to Aurand up to that "point in the negotiations." Although Logan was in transit at the time, he set up an appointment to talk with Dumas in the near future. The two eventually did talk and Dumas recalls being reassured that "everything was moving forward."


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