United States District Court, M.D. North Carolina
BOBBY J. CHOPLIN, Plaintiff,
INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant.
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Elizabeth Peake United States Magistrate Judge
matter is before the Court on Defendant's Motion for
Judgment on the Pleadings [Doc. #13]. In this case, Plaintiff
Bobby Choplin alleges that he was a sales representative for
Defendant International Business Machines Corporation
(“IBM”) from 2012 until 2016 and that Defendant
IBM improperly failed to pay him the commissions due on a
deal he closed for Defendant worth over $6, 649, 000.00.
Defendant removed this case from North Carolina state court
based on diversity of citizenship pursuant to 28 U.S.C.
§ 1332(a), and subsequently filed the present Motion for
Judgment on the Pleadings pursuant to Federal Rule of Civil
Procedure 12(c). Plaintiff has filed a Response in opposition
to the Motion, and Defendant has filed a Reply brief. The
Motion is therefore ready for ruling. For the reasons set out
below, the Court recommends that Defendant's Motion be
granted as to Plaintiff's Fourth Claim for Relief
alleging Unfair and Deceptive Trade Practices under N.C. Gen.
Stat. § 75-1.1. However, as to the remaining claims, the
Court concludes that the contentions require consideration of
matters outside the pleadings, and therefore should instead
be considered on dispositive motions after discovery, which
is set to close on October 16, 2017.
FACTS, CLAIMS, AND PROCEDURAL HISTORY
Bobby Choplin alleges that in July 2015 he closed a sales
deal on behalf of Defendant IBM with BB&T Bank worth over
$6, 649, 000.00. (Complaint [Doc. #5] ¶ 44.) He claims
that his commission on this deal was over $800, 000.00.
(Id. ¶ 45.) Plaintiff further claims that he
worked on this deal from January 2015 through July 2015,
while traveling all over the state to “beat out
significant competition” from other companies.
(Id. ¶ 46.) Plaintiff says that he did this
based upon “IBM's representations that his
commission earnings would not be capped or limited in any
way.” (Id. ¶ 47.) He claims that he was
the only IBM sales representative entitled to commissions for
this entire sale. (Id. ¶ 48.)
further alleges that after the sale closed and his
commissions for the sales period were calculated, Defendant
IBM refused to pay him the commission he earned. According to
Plaintiff, this was the first sales period for which
Defendant IBM did not honor the formula for calculating his
commissions. He says that Defendant IBM lowered the amount of
commission he received by: (1) lowering the total amount of
sales credit he received for the BB&T deal from $6, 649,
000.00 to $3, 879, 938.00; and (2) capping the commission
payment it was willing to make to Plaintiff to $348, 847.00.
(Id. ¶ 53-56.) Plaintiff says that he disputed
the commission calculation with Defendant but that Defendant
refused to reconsider its decisions. He states that he has
since learned that Defendant has a pattern and practice of
misleading its sales representatives to entice them to work
extraordinarily hard to make sales and then refusing to pay
commissions after the deal is closed. (Id. ¶
support of his contentions, Plaintiff relies upon alleged
statements made by Defendant's representatives at sales
meetings, as well as a statement allegedly made by
Plaintiff's manager. Plaintiff alleges that in January
2013, Defendant IBM held a “Sales Kick-Off
Meeting” in Atlanta, Georgia. (Id. ¶ 24.)
Plaintiff alleges that during this conference, Mark Dorsey,
Vice-President of Software Sales, spoke and gave
“specific representations that each sales
representative's earning potential was unlimited because
IBM does not limit or cap commissions.” (Id.
¶ 28.) According to Plaintiff, Mr. Dorsey also told
sales representatives that they had “unlimited
potential to earn commissions at IBM.” (Id.
¶ 29.) Plaintiff also alleges that Defendant had a sales
representative, Lori Sockowitz, give a presentation at this
meeting about the sales representatives' ability to earn
unlimited commissions. (Id. ¶ 33.)
also relies upon a February 2015 “InterConnect
Conference & 2015 Sales Kick-Off Meeting” in Las
Vegas, Nevada. Plaintiff claims that at this conference,
Janet Butler, Vice President of WorldWide Sales, and Ronnie
Rohr, sales representative, both gave presentations and said
that “sales representatives have the ability to make as
much money as they want to.” (Id. ¶ 37.)
Plaintiff says that Ms. Butler “presented Ms. Rohr as
evidence of a sales representative who was able to make
significant, unlimited commissions.” (Id.
further alleges that during his job interviews, Bruce Kopkin
and other managers of Defendant told him that he “could
make as much money as he wanted to.” (Id.
says that based upon all of these representations, he
believed that his commissions would never be capped or
limited by Defendant. (Id. ¶ 41.)
Plaintiff also alleges that his manager confirmed that
Plaintiff should be credited with the entire revenue of $6,
649, 000.00 for the BB&T deal. (Id. ¶ 55.)
light of these allegations, Plaintiff raises claims of: (1)
violation of the North Carolina Wage and Hour Act for unpaid
wages; (2) unjust enrichment; (3) fraud; (4) unfair and
deceptive trade practices; and (5) negligent
misrepresentation. Plaintiff also seeks punitive damages.
IBM opposes Plaintiff's claims based in large part on the
language of its incentive plans, which it claims governed the
payment of Plaintiff's commission. Defendant contends
that these plans do not constitute an enforceable contract
requiring Defendant to pay any specific amount of
commissions. Defendant has attached to its Answer copies of
what it contends are the two incentive plans applicable to
the year 2015.
Federal Rule of Civil Procedure 12(c) provides that
“[a]fter the pleadings are closed-but early enough not
to delay trial-a party may move for judgment on the
pleadings.” The standard for granting judgment on the
pleadings under Federal Rule of Civil Procedure 12(c) is the
same as for granting a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). Burbach Broad. Co. v.
Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir.
2002). Under Rule 12(b)(6), a plaintiff fails to state a
claim upon which relief may be granted when the complaint
does not “contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible
on its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
deciding a Rule 12(c) motion, the court assumes the facts
alleged in the Complaint are true and draws all reasonable
inferences in the non-moving party's favor.
Mendenhall v. Hanesbrands, Inc., 856 F.Supp.2d 717,
723 (M.D. N.C. 2012). Unlike on a Rule 12(b)(6) motion
however, the court may consider the Answer as well as the
Complaint, and the factual allegations in the Answer are
taken as true to the extent they have not been denied or do
not conflict with the Complaint. Id. at 724.
However, “Defendant cannot rely on allegations of fact
contained only in the Answer, including affirmative defenses,
which contradict the ...