Sarkar v. Petroleum Co. of Trinidad

• Decision Date: 23 June 2016
• Docket Number: CIVIL ACTION NO. H-15-2372
• Parties: SANJOY SARKAR, Plaintiff, v. PETROLEUM COMPANY OF TRINIDAD & TOBAGO LIMITED and HRC & ASSOCIATES MANAGEMENT CONSULTANTS, Defendants.
• Court: U.S. District Court — Southern District of Texas

SANJOY SARKAR, Plaintiff, v. PETROLEUM COMPANY OF TRINIDAD & TOBAGO LIMITED and HRC& ASSOCIATES MANAGEMENT CONSULTANTS, Defendants.

CIVIL ACTION NO. H-15-2372

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

June 23, 2016

MEMORANDUM OPINION AND ORDER

PlaintiffSanjoy Sarkar("Sarkar" or "Plaintiff") brought this action against defendantsPetroleum Company of Trinidad & Tobago Limited("Petrotrin") and HRC Associates Limited("HRC")(together, "Defendants") on August 17, 2015.¹Pending before the court are DefendantPetroleum Company of Trinidad and Tobago Limited's Motion to Dismiss Sanjoy Sarkar's Amended Complaint and Supporting Memorandum of Law ("Petrotrin's Motion to Dismiss")(Docket EntryNo. 13) and DefendantHRC Associates Limited's Motion to Dismiss Sanjoy Sarkar's Amended Complaint and Supporting Memorandum of Law ("HRC's Motion to Dismiss")(Docket EntryNo. 14).²

I.Background

Sarkar is an experienced executive working in the oil and gas industry and a United States citizen.³Sarkar alleges the following facts.Petrotrin is a limited liability company incorporated under the laws of the Republic of Trinidad and Tobago ("T & T") with its principal place of business in Pointe-a-Pierre, T & T.⁴The T & T government owns and operates Petrotrin under the direction of the T & T Ministries of Finance and Energy.⁵Petrotrin produces, refines, and sells petroleum products in the United States, Latin America, and other portions of the Caribbean, and "engages in hiring and recruiting employees, hiring of service providers, entry into joint ventures and securing financing from the United States . . . . "⁶ HRC is a recruiting and consultant firm based in T & T.⁷ Petrotrin uses HRC as an agent to headhunt and recruit employees from the United States and other locations around the world.⁸"HRC, as an agent on behalf of Petrotrin, actively seeks Americans for employment with its principalPetrotrin including by visiting prospects in the United States, interviewing prospects, and negotiating employment packages while in the US."⁹Khalid Hassanali was President and Keith Ramnath was Vice President of Petrotrin at the time of the events leading to this action.¹⁰Hollick Rajkumar was and remains the managing director of HRC.¹¹

Around October of 2014 HRC contacted Sarkar, and Sarkar interviewed for an executive level position with Petrotrin.¹²HRC originally contacted him for the CFO position at Petrotrin.¹³HRC contacted him again, and Sarkar applied for and was offered the position of Vice President, Marketing, Trading and Business Development ("Vice President Marketing").¹⁴Petrotrin sent a draft contract to Sarkar on December 10, 2014, while he was in the United States.¹⁵Both Defendants were aware that Sarkar was a U.S.citizen living in the U.S. at the time.¹⁶Sarkar and Petrotrin engaged in negotiations via phone and email, and Sarkar signed the Contract of Service (the "Contract") in the United States on December 12, 2014.¹⁷Sarkar's wife witnessed his signature.¹⁸

The Contract commenced on January 19, 2015, and was for a four-year term, unless terminated earlier pursuant to the Contract terms.¹⁹The Contract stated that upon termination by Petrotrin for any reason except "termination for cause" as defined in Clause 21 of the Contract, Petrotrin would owe Plaintiff fifty percent of the remaining value of the monthly remuneration (basic salary, traveling allowance, gratuity, medical allowance, and housing allowance) due to the end of the contractual term (the "Termination Payment").²⁰Unless it was terminated for cause, the Contract wouldonly terminate upon payment of the Termination Payment.²¹Sarkar's compensation is stated in terms of both T & T and U.S. dollars throughout the Contract.²²As part of his compensation package, Petrotrin offered to pay for Sarkar's flights back to the United States.²³

The first numbered paragraph of the Contract states that "[y]our employment is contingent on you obtaining a Work Permit."²⁴After the Contract was executed, Sarkar submitted supporting documentation for his work permit application and the list of references "while in the United States."²⁵HRC's managing director, Hollick Rajkumar, told Sarkar verbally that the work permit process was a "mere formality" for prospective employees of Petrotrin.²⁶There were delays in processing the application, but during this time Mr. Huff, a United States citizen residing in Texas and the person Petrotrin hired for the CFO position, met with Sarkar in Texas.²⁷Petrotrin also arranged two trips to T & T for Sarkar, including a trip with his family.²⁸

Sarkar alleges that the contract commenced on January 19, 2015, and he was available to work from that date, communicating the same to Defendants.²⁹Sarkar followed up with Petrotrin for days before and after that date, requesting details on his and his family's move to T & T and an update on his work permit status.³⁰On January 7, 2015, Sarkar emailed Petrotrin to ask if he could commence working for Petrotrin in the U.S. and T & T while his work permit application was pending.³¹As an amendment to the Contract, Petrotrin's president agreed by email that Sarkar could begin working on a "consultant" basis.³²However, Petrotrin's vicepresident withdrew the amendment via email dated January 14, 2015, while the work permit was under consideration.³³

On January 3 0 Hassanali notified Sarkar in writing that the Ministry of National Security of T & T had not issued Sarkar a work permit "purportedly after its meeting on or about January 23, 2015, and accordingly this condition of the Contract could not be attained (and thus enforcement of the Contract was not possible),"³⁴ The letter stated "for the 'avoidance of doubt', that [Petrotrin] had unilaterally discharged the Contract and released the parties from their obligations thereunder."³⁵

After terminating the Contract, Petrotrin refused to pay the Termination Payment, contending that the failure to obtain a work permit resulted in an unenforceable Contract.³⁶Sarkar alleges that Petrotrin is required to pay him the Termination Payment in order to terminate the Contract, since none of the enumerated for-cause termination situations occurred.³⁷Sarkar also alleges that Defendants failed to follow the proper work permit application process because they did not advertise in local T & T newspapers or conduct a full public solicitation.³⁸In the recruiting agreementbetween HRC and Petrotrin, HRC was responsible for, among other things, placing advertisements in local newspapers.³⁹HRC's managing director admitted in an email that it failed to advertise Sarkar's position because it had mistakenly assumed that an earlier advertisement for the CFO position would be sufficient.⁴⁰Petrotrin asked HRC to send a letter addressing this issue, but it appears HRC failed to take corrective action.⁴¹Due to Defendants failure to follow "well-established protocol, the Ministry of National Security appears to have turned down Petrotrin's application for a work permit initially for [Sarkar]."⁴²

Later, HRC told Sarkar that Petrotrin's board had requested that Mr. Ramnath reapply for Sarkar's work permit, but Petrotrin changed its mind again and refused both to correct its initial application and to lodge a fresh application.⁴³Petrotrin also refused Sarkar's offer to work as a consultant or remotely from Houston while the work permit process was ongoing.⁴⁴Sarkar allegesthat the work-permit issue is a pretext "for not going forward with [Sarkar's] employment."⁴⁵

Sarkar filed his Original Complaint on August 17, 2015.⁴⁶At the initial scheduling conference Sarkar was given leave to amend, and the parties were directed to complete discovery on jurisdictional issues by March 4, 2016.⁴⁷Sarkar filed his Amended Complaint on March 11, 2016, asserting a claim for breach of contract against Petrotrin and claims for negligence and negligent misrepresentation against both Defendants.⁴⁸Defendants filed the two motions to dismiss on April 1, 2016.⁴⁹

II.Objections to Defendants' Declarations Filed

in Support of the Motions to Dismiss

Sarkar objects to three declarations filed in support of Defendants' motions: (1) Declaration of Radica Maraj Adharsingh in Support of DefendantsPetroleum Company of Trinidad and Tobago Limited and HRC Associates Limited's Motions to Dismiss("Adharsingh Declaration");⁵⁰(2) Declaration of Ronald Huff in Support of DefendantPetroleum Company of Trinidad and Tobago Limited's Motion to Dismiss("Huff Declaration");⁵¹ and (3) Declaration of Hollick Rajkumar in Support of DefendantHRC Associates Limited's Motion to Dismiss("Rajkumar Declaration").⁵²Sarkar moves to strike the declarations because they are not in compliance with 28 U.S.C. § 1746, or, alternatively, because portions of the declarations are otherwise inadmissible under the Federal Rules of Evidence.⁵³

A.Compliance With 28 U.S.C. § 1746

The originally submitted declarations state: "I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief."⁵⁴Defendants contend that this satisfies the "substantially in the following form" requirement of the statute.⁵⁵Nonetheless, Defendants have submitted declarations that quote 28 U.S.C. § 1746(1)'s language and are otherwise identical to the originally submitted declarations, mooting Sarkar's first objection.⁵⁶

B. Sarkar's Other Objections

Sarkar objects to portions of the declarations on the following grounds: lack of personal knowledge, conclusory statements, hearsay statements, and impermissible experttestimony.⁵⁷To the extent that the declarations contain statements based on "information and belief" that are inadmissible because they are not based on personal knowledge or because they contain hearsay, the court has not relied on those statements.⁵⁸

Other objections are to statements that are irrelevant to the bases of the court's decision.⁵⁹For example,...