Cashatt v. Merrimac Assocs., Inc.

• Decision Date: 17 February 2012
• Docket Number: Civil Action No. 2:09–CV–220–RWS.
• Citation: 853 F.Supp.2d 1244
• Parties: Rick CASHATT, Plaintiff, v. MERRIMAC ASSOCIATES, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

853 F.Supp.2d 1244

Rick CASHATT, Plaintiff,

v.MERRIMAC ASSOCIATES, INC., et al., Defendants.

Civil Action No. 2:09–CV–220–RWS.

United States District Court,

N.D. Georgia,

Gainesville Division.

Feb. 17, 2012.

Ezra B. Jones, III, Pendergast & Associates, P.C., Atlanta, GA, for Plaintiff.

Jeffrey A. Schwartz, Justin Robert Barnes, Jackson Lewis, LLP, Atlanta, GA, for Defendants.

ORDER

RICHARD W. STORY, District Judge.

This case comes before the Court on Defendants' Motion for Summary Judgment [41], Plaintiff's Motion to Withdraw Dkt. No. 43[45], and Plaintiff's Motion to Withdraw Dkt. No. 42–4[46]. After a review of the record, the Court enters the following order.

I. Factual Summary

Defendant Merrimac Associates, Inc. (“Merrimac”) provides “design, construction supervision, start-up[,] and project management services primarily in the power transmission and distribution, industrial, and energy (nuclear, fossil[,] and renewable) industries.” Def.'s SMF, Dkt. No. [41–2] at ¶ 1; Pl.'s Resp. SMF, Dkt. No. [42–7] at ¶ 1. Defendant EARTH is a company which is in the development stages and has developed a “method of refining biomass (such as wood, grass, and agricultural waste products) by using super compaction technology to remove water from the biomass in order to convert it to solid fuel that can either replace or supplement coal in a power plant.” Def.'s SMF, Dkt. No. [41–2] at ¶ 2; Pl.'s Resp. SMF, Dkt. No. [42–7] at ¶ 2. David Shaffer developed EARTH's technology and, at the time of Plaintiff's employment, served as the President and CEO of Merrimac. Def.'s SMF, Dkt. No. [41–2] at ¶ 1; Pl.'s Resp. SMF, Dkt. No. [42–7] at ¶ 1. As well, Oxantium Group financed EARTH along with Merrimac, and Bill Marsh—a general partner at Oxantium—served on EARTH's board following the investment. Def.'s SMF, Dkt. No. [41–2] at ¶¶ 7–8; Pl.'s Resp. SMF, Dkt. No. [42–7] at ¶ 7–8. Shaffer and Marsh were the only members of EARTH's board from its inception until July 2009. Def.'s SMF, Dkt. No. [41–2] at ¶ 9; Pl.'s Resp. SMF, Dkt. No. [42–7] at ¶ 9.

Plaintiff and Shaffer first met in 2004 or 2005 when Plaintiff represented a boiler manufacturing company. Def.'s SMF, Dkt. No. [41–2] at ¶ 13; Pl.'s Resp. SMF, Dkt. No. [42–7] at ¶ 13. In September 2008, Shaffer called the Plaintiff and told him about EARTH. Def.'s SMF, Dkt. No. [41–2] at ¶ 13; Pl.'s Resp. SMF, Dkt. No. [42–7] at ¶ 13. In December 2008, Plaintiff was hired by Merrimac. It is disputed whether Plaintiff was hired to serve as the “COO of EARTH” but, at bottom, Plaintiff and Shaffer at least referred to the Plaintiff as the COO in his correspondence with third parties. Def.'s SMF, Dkt. No. [41–2] at ¶ 15; Pl.'s Resp. SMF, Dkt. No. [42–7] at ¶ 15.

Plaintiff states that the parties agreed on the “material terms” of his agreement to be COO, namely that his compensation was agreed to be “$200,000, an equity position, which Dave owed me an answer on, on what we were talking about, and a bonus structure.” Id. at 158:4–6. When Plaintiff took the position, he understood that his compensation would be deferred until Oxantium's bridge financing was released which should have occurred in two to three months. Cashatt Dep., Dkt. No. [36] at 103:1–9. However, Shaffer maintains that Plaintiff would not be eligible to be paid anything until EARTH obtained its second round of financing. Pl.'s SMF, Dkt. No. [42–8] at ¶ 35; Def.'s Resp. SMF, Dkt. No. [47–1] at ¶ 35.

While working for the Defendants, Plaintiff conducted an audit and made various sales presentations in Georgia. Dep. Marsh, Dkt. No. [39–1] at 81:9–16; Cashatt Dep., Dkt. No. [36] at 88:18–89:10. He also conducted other sales calls via e-mail and telephone as the company, as a start-up, wished to avoid excessive travel expenses. Cashatt Dep., Dkt. No. [36] at 88:18–89:10.

Plaintiff states that in May 2009 the EARTH Board of Directors was going to vote on making him CEO. Def.'s SMF, Dkt. No. [41–2] at ¶ 17; Pl.'s Resp. SMF, Dkt. No. [42–7] at ¶ 17. Shaffer maintains he never offered the Plaintiff that position. Def.'s SMF, Dkt. No. [41–2] at ¶ 16; Pl.'s Resp. SMF, Dkt. No. [42–7] at ¶ 16. Regardless, by June 30, 2009, no agreement was struck and the Defendants terminated the Plaintiff. Pl.'s SMF, Dkt. No. [42–8] at ¶ 83; Def.'s Resp. SMF, Dkt. No. [47–1] at ¶ 83. Plaintiff then filed this lawsuit.

II. Preliminary Matters

As a preliminary matter, Plaintiff's motions to withdraw documents which were not properly redacted pursuant to Standing Order 04–02 [45, 46] are GRANTED, nunc pro tunc.

III. Motion for Summary JudgmentA. Legal Standard

Federal Rule of Civil Procedure 56 requires that summary judgment be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party bears ‘the initial responsibility of informing the ... court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ ” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.2004) ( quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations omitted)). Where the moving party makes such a showing, the burden shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The applicable substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. A fact is not material if a dispute over that fact will not affect the outcome of the suit under the governing law. Id. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249–50, 106 S.Ct. 2505.

In resolving a motion for summary judgment, the court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.2002). But, the court is bound only to draw those inferences which are reasonable. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997) ( quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (internal citations omitted); see also Matsushita, 475 U.S. at 586, 106 S.Ct. 1348 (once the moving party has met its burden, the nonmoving party “must do more than simply show there is some metaphysical doubt as to the material facts”).

B. Judicial Estoppel

As a preliminary matter, Defendant argues that all of Plaintiff's claims should be dismissed pursuant to judicial estoppel as Plaintiff failed to amend his Chapter 13 bankruptcy petition to alert the Court that he became employed with the Defendants. The doctrine of judicial estoppel precludes a plaintiff from asserting a claim in a judicial proceeding that contradicts the position taken under oath in a bankruptcy proceeding. Parker v. Wendy's Int'l, Inc., 365 F.3d 1268, 1271 (11th Cir.2004). The Eleventh Circuit has adopted a two-prong test for determining the application of judicial estoppel. First, the prior inconsistent position must be asserted under oath. Burnes v. Pemco Aeroplex, 291 F.3d 1282, 1285–88 (11th Cir.2002). Next, the court considers whether the inconsistent statements amount to a manipulation of the judicial system. See id. at 1287–88. As Burnes demonstrates, where a party fails to list a potential employment claim on her bankruptcy disclosure forms and later brings that claim in court, the first factor is met and the issue becomes one of intent. See id. (finding first factor met under circumstances). Intent may be inferred from the record, particularly where a party knew about her undisclosed claims and had a motive to conceal them from the bankruptcy court. Id. at 1287.

Defendants argue that this case is “virtually identical” to Robinson v. Tyson Foods, Inc., 595 F.3d 1269 (11th Cir.2010). In Robinson, the debtor filed the relevant bankruptcy in May 2002. In September 2005, the debtor quit her job with the defendant due to harassment, racial abuse, and intimidation, and in October 2006, filed suit on those allegations. In May 2007, one of the debtor's creditors moved for a dismissal of her plan due to non-payment. But prior to the hearing, the debtor brought her payments current and the motion was withdrawn. The debtor satisfied her plan in July 2007. Two months later, during her deposition in the discrimination suit, the defendant learned that the debtor had never amended her petition to reflect the discrimination suit or a worker's compensation claim which she filed after her husband died on the job. The defendants then moved to assert judicial estoppel against the debtor in the discrimination suit because she had committed a fraud on the court.

The Eleventh Circuit upheld the district court's finding that the defendants were entitled to summary judgment. The Circuit stated that by “failing to update her bankruptcy schedule to reflect her pending claim, Robinson represented that she had no legal claims to the bankruptcy court while simultaneously pursuing her legal claim against [the defendant] in the district court.” Id. at 1275 (emphasis added). As well, the Court found a judicial mockery because had the debtor settled her suit within the nine-month window between filing the discrimination suit and discharge, she would...