United States District Court, W.D. North Carolina, Charlotte Division
C. MULLEN, UNITED STATES DISTRICT JUDGE
MATTER is before the Court following Defendant's Motion
for Summary Judgment (Doc. No. 11), Plaintiffs Memorandum in
Opposition to Defendant's Motion for Summary Judgment
(Doc. No. 19), and Defendant's Reply Brief in Support of
Motion for Summary Judgment (Doc. No. 22).
Legal Document Services of Charlotte, LLC ('ALD")
hired Plaintiff Thomas Pagani on January 3, 2006 and entered
into the Employment Agreement. In December 2010, having
purchased the assets of ALD, Defendant Modus eDiscovery, Inc.
("Modus") (formerly known as "Ivize Services,
Inc." ("Ivize")) assumed responsibility for
Plaintiffs Employment Agreement.
terminated Pagani's employment on December 12, 2012. At
that time, Pagani was a Regional Discovery Executive at
1 of the Employment Agreement provides that "[t]he
Company shall employ [Plaintiff], and [Plaintiff] will
provide services to the Company, for a term commencing as of
the closing of the Acquisition . . . and continuing until
terminated pursuant to Section 9." Schmidt Decl. ¶
3, Exh. A at ¶1.
Paragraph 9 of his Employment Agreement, Modus could
terminate Plaintiffs employment with or without
"Cause." Schmidt DecL, 3, Ex. A at ¶ 9.
"Cause" is defined in the Employment Agreement
between Plaintiff and Defendant as "Tier 1 Cause, Tier 2
Cause, Tier 3 Cause and/or Tier 4 Cause." (Schmidt Decl.
¶ 3, Exh. A at ¶ 9(d)). If Modus terminated Pagani,
while possessing Tier 1 or Tier 2 Cause, Pagani would not be
entitled to any severance. Schmidt Decl. 1, Exh. A at ¶
9 (c). "Tier 2 Cause" is defined as:
(x)(a) the Net Sales from the Company's operations,
during the most recent six calendar months ended at least 20
days prior to the date as of which Tier 2 Cause is to be
determined, were less than $397, 475.50 ... or (b) the Net
Sales from the Company's operations, during the most
recent twelve calendar months ended at least 20 days prior to
the date as of which Tier 2 Cause is to be determined, were
less than $753, 315... and (y) the Company had losses
(determined in accordance with generally accepted accounting
principles) for such six calendar month period or twelve
calendar month period, as applicable.
Id.. Notably, Tier 2 Cause requires that the Net
Sales from the Charlotte operations be below certain amounts
in either a six-month ($397, 475.50) or 12-month ($753, 315)
period, and that the business in Charlotte had losses for the
same period. Id.. The Employment Agreement defines
the "Company" as Action Legal Document Services of
Charlotte, LLC. Id. at 1.
point of contention in this case is whether Pagani is
eligible for severance. This boils down to whether Pagani was
fired for Tier 2 Cause as defined in the Employment
Agreement. If he was, then Pagani would not be entitled to
severance. The Defense claims that Pagani was terminated for
Tier 2 Cause. Plaintiff claims that he is entitled to
severance payments and other damages resulting from
Defendants' alleged breach of contract because his
employment was terminated without "Cause."
this complaint was filed there was multiple defendants and
multiple claims. However, at this point, the only claim left
in this case is a claim for breach of contract against
Defendant Modus where Plaintiff claims contractual
entitlement under the Employment Agreement to 18 months of
severance payments from Modus. Defendant Modus has moved for
summary judgment on this claim. Plaintiff Pagani opposes
their motion. This matter is now ripe for disposition.
Standard of Review
court shall grant summary judgment 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). A dispute is genuine "if die
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc.,477 U.S. 242, 248 (1986). "The
mere existence of a scintilla of evidence" in support of
the non-movant's position is not sufficient to establish
a genuine dispute. Id. at 252. A materia] fact
affects the outcome of the suit under the applicable
substantive law. See Id. at 248. When determining
whether a dispute is genuine or a fact is material, courts
are required to view the facts and draw reasonable inferences
in the light most favorable to the party opposing the summary
judgment motion. Scott v. Harris,550 U.S. 372, 378
(2007). The Court "may not make credibility
determinations or weigh the evidence, " Reeves v.