United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM AND RECOMMENDATION
S. Cayer United States Magistrate Judge.
MATTER is before the Court on “Defendants'
Rule 12(b)(6) Motion to Dismiss and Alternative Motion to
Transfer Division, ” Doc. 10, as well as the
parties' briefs and exhibits. Docs. 11, 12, 16 and 24.
matter was referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) on November 7, 2018,
and this Motion is now ripe for the Court's
fully considered the arguments, the record, and the
applicable authority, the undersigned respectfully recommends
that the Motion be denied as discussed below.
FACTUAL AND PROCEDURAL BACKGROUND
case involves an Employment Confidentiality, Non-Solicitation
and Non-Compete Agreement between Plaintiff and Defendants.
Accepting the allegations of the Complaint as true, Plaintiff
Celentano was hired as CEO by Claris Vision LLC, a private
equity owned business consisting of four ophthalmology
surgical practices in New England. Defendant Eli Global LLC
wholly owns ECL Group LLC. ECL Group LLC owns several eye
care practices. In late 2017, as a result of a merger,
Defendants employed Plaintiff. He and Defendants entered into
an Employment Agreement attached as Exhibit A to
Plaintiff's Complaint. Doc. 1. The parties to the
Agreement are Plaintiff, Eli Global LLC, and its subsidiary
ECL Group LLC. The Agreement designates the
“Employer” as “ECL and other
entities” Id. at ¶A. The Agreement states
that “Executive [Plaintiff] will be employed by
Employer as President, Provider Management Division...”
Id. at ¶1.2.
signed the Agreement on or about December 20, 2017 and
returned it to Defendants. Plaintiff alleges that
“Defendants are believed to have signed the Agreement
but did not return a signed copy to him….”
Id. at ¶4. Following his employment by
Defendants, Plaintiff was based in Chicago and reported to
Mike Gallup. Up until his termination, Defendants observed
all terms of the Agreement.
Agreement allows Plaintiff to be terminated
“immediately upon written notice by Employer to
[Plaintiff] specifying Cause” or “upon at least
thirty (30) days written notice to [Plaintiff] without
Cause.” Id. at ¶2.1. If
“Employer” terminates Plaintiff without Cause, it
must pay him, among other benefits, his annual salary (as it
stood immediately prior to termination) for twelve months
plus his annual bonus for the year in which his employment
was terminated. Id. at ¶2.4(c). The Agreement
is construed under North Carolina law. The Agreement also
contains a Jurisdiction clause that states “parties
hereto irrevocably and unconditionally submit to the
exclusive jurisdiction of any State or Federal court sitting
in North Carolina, over any suit, action or proceeding
arising out of or relating to this Agreement.”
Id. at ¶5.12.
was fired on March 1, 2018. He alleges that he committed none
of the acts defined as Cause for termination and is thus
entitled to payment under the Agreement. On March 29, 2019,
Plaintiff filed his Complaint alleging breach of contract and
violation of the North Carolina Wage and Hour Act.
filed this Motion to Dismiss arguing that they never employed
Plaintiff and did not sign or otherwise assent to the
Agreement. Alternatively, they argue that the case should be
transferred to the Charlotte Division because neither
Defendant resides within the Asheville Division.
STANDARD OF REVIEW
reviewing a Rule 12(b)(6) motion, “the court should
accept as true all well-pleaded allegations and should view
the complaint in a light most favorable to the
plaintiff.” Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). The plaintiff's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“[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.” Id. at 563. A
complaint attacked by a Rule 12(b)(6) motion to dismiss will
survive if it contains enough facts to “state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility 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, the Supreme Court articulated a two-step
process for determining whether a complaint meets this
plausibility standard. First, the court identifies
allegations that, because they are no more than conclusions,
are not entitled to the assumption of truth. Id.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555) (allegation that government officials adopted
challenged policy “because of” its adverse
effects on protected group was conclusory and not assumed to
be true). Although the pleading requirements stated in
“Rule 8 [of the Federal Rules of Civil Procedure]
mark a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era ... it
does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.” Id. at
to the extent there are well-pleaded factual allegations, the
court should assume their truth and then determine whether
they plausibly give rise to an entitlement to relief.
Id. at 679. “Determining whether a complaint
contains sufficient facts to state a plausible claim for
relief “will ... be a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. “Where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged-but it ...