Muncher v. NCR Corp.

• Decision Date: 27 June 2017
• Docket Number: Case No.: 2:16-CV-782-VEH
• Parties: STEVEN A. MUNCHER, Plaintiff, v. NCR CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Alabama

STEVEN A. MUNCHER, Plaintiff, v. NCR CORPORATION, Defendant.

Case No.: 2:16-CV-782-VEH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

June 27, 2017

MEMORANDUM OPINION AND ORDER

This is a civil action filed by the Plaintiff, Steven A. Muncher, against the Defendant, NCR Corporation ("NCR"). The First Amended Complaint in this case was filed on August 19, 2016. (Doc. 23). As alleged in the First Amended Complaint:

[The] Plaintiff seeks to recover bonuses in the total amount of $210,681.00 which NCR has wrongfully withheld and refused to pay for the year 2015. [The] Plaintiff is entitled to these bonuses based upon the "2015 T&T Sales Compensation Program Additional Earnings Opportunity" (the "Additional Earnings Opportunity" or "AEO"). The AEO provided for significant bonuses in 2015 in addition to the existing bonus program known as the "Solution Compensation Plan" ("SCP") for sales representatives. At all times throughout 2015, [the] Plaintiff was a sales representative who was fully eligible for the additional bonuses under the AEO and [the] Plaintiff fully earned his AEO bonus.

(Doc. 23 at 4). Arising from these (and other) allegations, the First Amended Complaint sets out claims for breach of contract (Count One), fraudulent inducement (Count Two), suppression and concealment (Count Three), and "attorneys' fees" (Count Four).

The case comes before the Court on the Defendant's Partial Motion To Dismiss, filed pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure (doc. 27), and the Plaintiff's Motion To Amend the Complaint to add one additional Count for liability under the Alabama Sales Representative's Commission Act, ALA. CODE § 8-23-3, (the "ASRCA" or the "Act") (doc. 51).¹ Both motions are under submission. For the reasons stated herein, both motions will be DENIED.

I. APPLICABLE STANDARDS

A. Motion To Dismiss

A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See FED. R. CIV. P. 12(b)(6) ("[A] party may assert the following defenses by motion: (6) failure to state a claim upon which relief can be granted[.]"). The Federal Rules of Civil Procedure require only that the complaint provide "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting FED. R. CIV. P. 8(a)(2)),abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007); see also FED. R. CIV. P. 8(a) (setting forth general pleading requirements for a complaint including providing "a short and plain statement of the claim showing that the pleader is entitled to relief").

While a plaintiff must provide the grounds of his entitlement to relief, Rule 8 does not mandate the inclusion of "detailed factual allegations" within a complaint. Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S. Ct. at 103). However, at the same time, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.

"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. (emphasis added). "Under Twombly's construction ofRule 8 . . . [a plaintiff's] complaint [must] 'nudge[] [any] claims' . . . 'across the line from conceivable to plausible.' Ibid." Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51.

A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556, 127 S. Ct. at 1965).

Fraud claims must be pled more specifically pursuant to Federal Rule of Civil Procedure 9(b): "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." However, "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally." FED. R. CIV. P. 9(b). As the Eleventh Circuit has explained,

Rule 9(b) is satisfied if the complaint sets forth "(1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud."

Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (quoting Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir. 1997).

"[I]t is sufficient to plead the who, what, when, where, and how of the allegedly false statements and then allege generally that those statements were made with the requisite intent." Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 2008).

B. Motion To Amend

The Eleventh Circuit has stated:

A district court has discretion to deny leave to amend, but "leave shall be freely given when justice so requires." FED. R. CIV. P. 15(a). "In making this determination, a court should consider whether there has been undue delay in filing, bad faith or dilatory motives, prejudice to the opposing parties, and the futility of the amendment." Local 472 of United Ass'n of Journeymen & Apprentices of Plumbing & Pipefitting Indus. of U.S. & Canada v. Ga. Power Co., 684 F.2d 721, 724 (11th Cir. 1982) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)).

Scopellitti v. City of Tampa, No. 15-15394, 2017 WL 343518, at *4 (11th Cir. Jan. 24, 2017). "A proposed amendment may be denied for futility when the complaint as amended would still be properly dismissed." Coventry First, LLC v. McCarty, 605 F.3d 865, 870 (11th Cir. 2010) (internal quotations and citations omitted). When a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice." Evans v. Georgia Reg'l Hosp., 850 F.3d 1248, 1254 (11th Cir. 2017) (internal quotations and citations omitted).

II. ALLEGATIONS IN THE FIRST AMENDED COMPLAINT

The First Amended Complaint alleges:

16. Plaintiff Was A "Salesperson" Under His Employment Agreement: From December 10, 2012 until January 1, 2016, Plaintiff was employed by NCR pursuant to a written employment contract.

17. Specifically, on December 10, Plaintiff signed a document titled "Salesperson Employment Agreement." An unexecuted copy of that Agreement is attached hereto and incorporated herein as Exhibit A.² (NCR retained the executed copy.)

18. The Salesperson Employment Agreement explicitly detailed Plaintiff's "duties and responsibilities" as a salesperson at paragraph 2 as follows: "Employee shall perform services and solicit orders for products, systems, and services as may from time to time be assigned to Employee individually or to his employment classification generally."

19. The Salesperson Employment Agreement also provided for "assigned accounts or territory" at paragraph 3.

20. At paragraph 4, "performance expectations", the Salesperson Employment Agreement specifically provided that Plaintiff would be assigned an "annual sales objective", the attainment of which constitutes the "minimum standard of acceptable performance".

21. The Salesperson Employment Agreement assigns no management duties to Plaintiff and nowhere designates or describes him as a "sales manager".

22. The Salesperson Employment Agreement was never modified or amended so as to change or eliminate Plaintiff's role and position as a sales representative.

23. Contemporaneously with the Salesperson Employment Agreement, NCR also provided Plaintiff with a letter dated December 4, 2012 (the "December 4th Letter"), which described his position, his base salary and his "Solution Compensation Plan (SCP)". A true and correct copy of that unexecuted letter is attached as Exhibit B.³ (NCR retained the executed copy.)

24. The SCP provided for a bonus (the "SCP Bonus") to motivate sales and service employees as follows:

Incentive Plan -- SCP:

In addition to your annual salary, you will be eligible to participate in NCR's Solution Compensation Plan (SCP), subject to the terms of the Plan. The SCP is designed to motivate solution sales and service employees to achieve levels of enhanced performance in support of NCR's solution strategy. Incentive components under this plan are represented as a percentage of total target cash.

December 4th Letter (emphasis supplied).

25. The formula for determining this first level SCP bonus is as follows:

Your base to incentive split in 2012 will be 70/30%, and your total target cash for 2012 will be $225,000 on an annual basis. This equates to an annual base salary of $ 157,500.00 as stated above, and an annual target incentive of $67,500.00.

Id. This same salary and bonus structure remained in effect throughout Plaintiff's employment with

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