Doucot v. Ids Scheer Inc.

• Decision Date: 10 August 2010
• Docket Number: Civil Action No. 09-11482-MBB
• Citation: 734 F.Supp.2d 172
• Parties: Charles M. DOUCOT, Plaintiff, v. IDS SCHEER, INC. and IDS Scheer Americas, Inc., Defendants.
• Court: U.S. District Court — District of Massachusetts

734 F.Supp.2d 172

Charles M. DOUCOT, Plaintiff,

v.IDS SCHEER, INC. and IDS Scheer Americas, Inc., Defendants.

Civil Action No. 09-11482-MBB.

United States District Court, D. Massachusetts.

Aug. 10, 2010.

Rachel E. Brodin, Goulston & Storrs, PC, Boston, MA, for Plaintiff.

Roger A. Lane, Courtney Worcester, Katherine B. Hollingsworth, Pepper Hamilton LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER RE: MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT (DOCKET ENTRY # 30); MOTION TO DISMISS PLAINTIFF CHARLES DOUCOT'S SECOND AMENDED COMPLAINT (PARTIAL MTD) (DOCKET ENTRY # 33)

BOWLER, United States Magistrate Judge.

Pending before this court are two motions to dismiss the second amended complaint (Docket Entry # # 30 & 33) filed by defendants IDS Scheer, Inc. ("IDS") and IDS Scheer Americas, Inc. ("IDS Americas") (collectively: "defendants"). Plaintiff Charles M. Doucot ("plaintiff") brings three claims for breach of contract, one claim for attorney's fees and one claim under Massachusetts General Laws chapter 149, section 148 ("MA Wage Act" or "section 148"). (Docket Entry # 28, Ex. A). Defendants move to dismiss various claims under Rule 12(b)(6), Fed.R.Civ.P. ("Rule 12(b)(6)"), for failure to state a claim upon which relief may be granted and Rule 12(b)(1), Fed.R.Civ.P. ("Rule 12(b)(1)"), for lack of subject matter jurisdiction. (Docket Entry # # 30 & 33).

PROCEDURAL BACKGROUND

Plaintiff filed the complaint on September 8, 2009. (Docket Entry # 1). The original claims included two counts for breach of contract and one count for attorney's fees. (Docket Entry # 1). Subsequently, on September 10, 2009, plaintiff filed the first amended complaint which added a count under the MA Wage Act. (Docket Entry # 6).

Defendants filed a motion to dismiss the first amended complaint on October 5, 2009. (Docket Entry # 13). On October 19, 2009, plaintiff filed an opposition to the motion to dismiss the first amended complaint. (Docket Entry # 19). On November 11, 2009, defendants filed a motion for leave to file a "Reply Brief in Support of Motion to Dismiss" with the proposed reply brief attached. (Docket Entry # 24). Plaintiff opposed that motion on November 19, 2009. (Docket Entry # 26).

On November 30, 2009, this court heard argument on the motion to dismiss the first amended complaint. This court took the motion (Docket Entry # 13) under advisement and also allowed plaintiff leave to file an amendment to the first amended complaint. On December 15, 2009, plaintifffiled a motion to amend the first amended complaint with the second amended complaint attached as exhibit A. (Docket Entry # 28). On December 29, 2009, defendants filed a motion to dismiss the second amended complaint. (Docket Entry # 30).¹ On January 11, 2010, plaintiff filed an opposition to the motion to dismiss the second amended complaint. (Docket Entry # 31).

In open court on April 1, 2010, this court allowed the motion to amend the first amended complaint (Docket Entry # 28) and allowed defendants leave to file the reply brief (Docket Entry # 24). Defendants agreed to withdraw the motion to dismiss the first amended complaint. (Docket Entry # 13). On April 15, 2010, defendants filed "a new motion to dismiss [addressing] all of the claims in the [second amended complaint]" ("partial motion to dismiss"). (Docket Entry # 33).² Also on April 15, 2010, defendants filed an answer to the second amended complaint. (Docket Entry # 37). On April 28, 2010, plaintiff filed an opposition to the partial motion to dismiss. (Docket Entry # 38).

FACTUAL BACKGROUND ³

Plaintiff is an individual residing in Rowley, Massachusetts. (Docket Entry # 28, Ex. A). Defendants, wholly owned subsidiaries of the German corporation IDS Scheer AG ("IDS AG"), have a principal place of business in Berwyn, Pennsylvania. (Docket Entry # 28, Ex. A).

On September 16, 2003, a certificate of amendment of IDS was filed with the Delaware Secretary of State's office changing IDS's name to "IDS Scheer Business Process Management, Inc." ("IDS BPM"). (Docket Entry # 15, Ex. A). Subsequently, IDS BPM merged with four other entities under the name of "IDS Scheer Americas, Inc.," as evidenced by a certificate filed with the State of Delaware on October 31, 2006. (Docket Entry # 15, Ex. B).

In October of 2006, "defendants contacted [plaintiff] to discuss his interest in the position of 'Senior Vice President and General Manager Product Business Americas.' " (Docket Entry # 28, Ex. A). The "parties" negotiated the terms of an executive employment agreement ("the Agreement") via telephone and electronic mail while plaintiff resided in Massachusetts. (Docket Entry # 28, Ex. A). On October 27, 2006, plaintiff executed the Agreement. (Docket Entry # 28, Ex. A). The Agreement was between plaintiff and "IDS Scheer, Inc." (Docket Entry # 28, Ex. 1). The Agreement has a heading that reads, "IDS SCHEER AMERICAS." (Docket Entry # 28, Ex. 1).

Section four of the Agreement sets out five forms of compensation to plaintiff: "(1) Base Salary, (2) Bonus Compensation, (3) Fringe Benefits, (4) Reimbursement of Expenses, and (5) Sign-on Bonus." (Docket Entry # 28, Ex. A & Ex. 1). At the time of plaintiff's termination, he had an "annual salary of $315,000." (Docket Entry # 28, Ex. A & Ex. 1). The "Bonus Compensation ... as more particularly described in Exhibit B" consisted of a "Plan Bonus" and a "Retention Plan 2010" bonus. (Docket Entry # 28, Ex. 1). According to the Agreement, "All bonuses ... shall be withheld and paid in accordance with the Company's normal payroll practice for its similarly situated employees." (Docket Entry # 28, Ex. 1).

The Agreement contained an employment term "commencing on 01st December 2006, subject to the provision of Section 7." (Docket Entry # 28, Ex. 1). Section seven on "Early Termination" addressed "Termination Without Cause" in subsection (d). (Docket Entry # 28, Ex. A & Ex. 1). "The Company" had the right to "terminate the Executive's employment under [the] Agreement at any time for any reason or no reason by giving the Executive fourteen (14) days prior written notice of such termination." (Docket Entry # 28, Ex. 1, § 7(d)). In the event of a termination without cause, subsection 7(d) dictated that:

(i) the Executive shall be entitled to receive all earned but unpaid ( as of the effective date of such termination) Base Salary, pro-rated bonuses under Section 4(b), fringe benefits under Section 4(c) and business expense reimbursements under Section 4(d); and

(ii) the Company shall continue to compensate the Executive under Sections 4(a) and 4(c) (subject to the terms of any benefit or compensation plan then in force and applicable to the Executive) for six (6) months following such termination.

(Docket Entry # 28, Ex. 1, § 7(d)) (emphasis added).

As stated in the complaint, on May 18, 2009, "newly appointed Chief Executive Officer of IDS Scheer, Inc.," Joerg Heisterman, and "Regional Human Resources Director of IDS Scheer, Inc., Amy Goldberg" ("Goldberg"), informed plaintiff of his termination "ostensibly because Defendants were eliminating his position." (Docket Entry # 28, Ex. A). Plaintiff's employment terminated on June 1, 2009. (Docket Entry # 28, Ex. A).

In accordance with subsection 7(d)(ii), plaintiff's severance period ran from June 1, 2009 to December 1, 2009. (Docket Entry # 28, Ex. A). According to plaintiff, under the terms of "the vacation program generally available to officers of the Company," plaintiff was "entitled to two and a half weeks of vacation" during the six month severance period. (Docket Entry # 28, Ex. A). Defendants have not "provide[d] any pay-out to [plaintiff] for his vacation days during his six-month severance period." (Docket Entry # 28, Ex. A). The amount of "a pay-out of his vacationdays based on his annual salary of $315,000 [would be] $15,144.23." (Docket Entry # 28, Ex. A).

When the complaint was filed, defendants had not provided plaintiff with a calculation or payment of any amount under the "Bonus Plan." (Docket Entry # 28, Ex. A). According to plaintiff, the "amount exceeds $200,000." (Docket Entry # 28, Ex. A). "As of the date of [his] termination, [he] had earned ... at least $21,000 (prorated for the portion of the year that [he] was employed) under the 2009 Plan Bonus." (Docket Entry # 20).⁴

Additionally, defendants "have not paid him for achieving one of the milestones listed in the Retention Plan 2010 bonus scheme." (Docket Entry # 28, Ex. A). Under the Agreement "the Company" would pay plaintiff "an additional and maximum bonus of $500,000 ... provided that IDS Scheer AG meets the [listed] performance goals in 2010." (Docket Entry # 28, Ex. 1, § 4(b) & Ex. B). In no uncertain terms, exhibit B to the Agreement, states that plaintiff begins to earn that bonus "when more than 70% of the goal has been met." (Docket Entry # 28, Ex. 1, Ex. B). One of the goals is to "Grow [IDS AG] corporate revenue Euro 350k in 2010 over 2006 revenue" and is allocated 30% of the maximum $500,000 bonus. (Docket Entry # 28, Ex. 1, Ex. B). According to plaintiff, "Defendants achieved this goal in 2007 by increasing IDS Scheer, Inc.'s revenue by 39.5 million in 2007." (Docket Entry # 28, Ex. A).

Another of the goals, which is allocated 30% of the total Retention Plan 2010 bonus, is to "achieve 14% EBITA for overall corporation in 2010." (Docket Entry # 28, Ex. A). The last goal, allocated 40% of the bonus, requires IDS "Americas to be 45% of worldwide product revenues (new license, ARIS consulting and software-maintenance revenue) by 2010." (Docket Entry # 28, Ex. A & Ex. 1, § 4(b) & Ex. B).

Goldberg avers that, "If annual bonuses are based upon the performance of IDS or a division or affiliate thereof, those bonuses are traditionally paid to employees by the end of the first quarter following the close of the prior calendar year." (Docket Entry # 14). Furthermore, Goldberg assured, "If, after the close of calendar year 2009, it is determined that Mr....