Sarkar v. Petroleum Co. of Trinidad

Decision Date23 June 2016
Docket NumberCIVIL ACTION NO. H-15-2372
PartiesSANJOY SARKAR, Plaintiff, v. PETROLEUM COMPANY OF TRINIDAD & TOBAGO LIMITED and HRC & ASSOCIATES MANAGEMENT CONSULTANTS, Defendants.
CourtU.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

Plaintiff Sanjoy Sarkar ("Sarkar" or "Plaintiff") brought this action against defendants Petroleum Company of Trinidad & Tobago Limited ("Petrotrin") and HRC Associates Limited ("HRC") (together, "Defendants") on August 17, 2015.1 Pending before the court are Defendant Petroleum 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 Entry No. 13) and Defendant HRC Associates Limited's Motion to Dismiss Sanjoy Sarkar's Amended Complaint and Supporting Memorandum of Law ("HRC's Motion to Dismiss") (Docket Entry No. 14).2

Page 2

I. Background

Sarkar is an experienced executive working in the oil and gas industry and a United States citizen.3 Sarkar 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.4 The T & T government owns and operates Petrotrin under the direction of the T & T Ministries of Finance and Energy.5 Petrotrin 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 principal

Page 3

Petrotrin including by visiting prospects in the United States, interviewing prospects, and negotiating employment packages while in the US."9 Khalid Hassanali was President and Keith Ramnath was Vice President of Petrotrin at the time of the events leading to this action.10 Hollick 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.12 HRC originally contacted him for the CFO position at Petrotrin.13 HRC contacted him again, and Sarkar applied for and was offered the position of Vice President, Marketing, Trading and Business Development ("Vice President Marketing").14 Petrotrin sent a draft contract to Sarkar on December 10, 2014, while he was in the United States.15 Both Defendants were aware that Sarkar was a U.S.

Page 4

citizen living in the U.S. at the time.16 Sarkar 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, 2014.17 Sarkar'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.19 The 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").20 Unless it was terminated for cause, the Contract would

Page 5

only terminate upon payment of the Termination Payment.21 Sarkar's compensation is stated in terms of both T & T and U.S. dollars throughout the Contract.22 As 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."24 After the Contract was executed, Sarkar submitted supporting documentation for his work permit application and the list of references "while in the United States."25 HRC's managing director, Hollick Rajkumar, told Sarkar verbally that the work permit process was a "mere formality" for prospective employees of Petrotrin.26

Page 6

There 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.27 Petrotrin 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.29 Sarkar 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.30 On 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.31 As an amendment to the Contract, Petrotrin's president agreed by email that Sarkar could begin working on a "consultant" basis.32 However, Petrotrin's vice

Page 7

president 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.36 Sarkar 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.37 Sarkar 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.38 In the recruiting agreement

Page 8

between HRC and Petrotrin, HRC was responsible for, among other things, placing advertisements in local newspapers.39 HRC'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.40 Petrotrin asked HRC to send a letter addressing this issue, but it appears HRC failed to take corrective action.41 Due 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.43 Petrotrin also refused Sarkar's offer to work as a consultant or remotely from Houston while the work permit process was ongoing.44 Sarkar alleges

Page 9

that the work-permit issue is a pretext "for not going forward with [Sarkar's] employment."45

Sarkar filed his Original Complaint on August 17, 2015.46 At the initial scheduling conference Sarkar was given leave to amend, and the parties were directed to complete discovery on jurisdictional issues by March 4, 2016.47 Sarkar 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.48 Defendants 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 Defendants Petroleum Company of Trinidad and Tobago Limited and HRC Associates Limited's Motions to Dismiss

Page 10

("Adharsingh Declaration");50 (2) Declaration of Ronald Huff in Support of Defendant Petroleum Company of Trinidad and Tobago Limited's Motion to Dismiss ("Huff Declaration");51 and (3) Declaration of Hollick Rajkumar in Support of Defendant HRC Associates Limited's Motion to Dismiss ("Rajkumar Declaration").52 Sarkar 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

Page 11

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."54 Defendants contend that this satisfies the "substantially in the following form" requirement of the statute.55 Nonetheless, 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 expert

Page 12

testimony.57 To 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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT