THOMAS W. THRASH, JR., District Judge.
This is an action for breach of contract and fraud arising out of the termination of the Plaintiff's employment. It is before the Court on the Defendant's Motion to Dismiss the Plaintiff's Amended Complaint [Doc. 9]. For the reasons set forth below, the Defendant's Motion to Dismiss the Plaintiff's Amended Complaint [Doc. 9] is GRANTED.
The Plaintiff began working for the Defendant Verizon Business Network Services, Inc. as a Senior Global Account Manager in 2006. On December 9, 2010, the Defendant notified the Plaintiff that his employment with Verizon would be terminated as of January 7, 2011. (Am. Compl. ¶ 15.) The Defendant sent the Plaintiff a Separation Agreement. (Am. Compl. ¶ 16.) The purpose of this agreement was to comprehensively spell out the rights and obligations of the various parties relating to the Plaintiff's employment and his termination. (Am. Compl. Ex. A at 9.) The Separation Agreement informed the Plaintiff that he ought to consult an attorney prior to signing it. (Am. Compl. Ex. A at 5.)
There are three primary sections to the Separation Agreement. First, the Separation Agreement includes provisions detailing what the Plaintiff is entitled to ("Entitlement Section"):
(Am. Compl. Ex. A at 4.) Second, the Separation Agreement includes a release whereby the Plaintiff forfeits all claims that he had against Verizon based on any event that occurred prior to the Plaintiff's signing of the Separation Agreement ("Claim Release"):
(Am. Compl. Ex. A at 5-6.) (emphasis added). Third, the Separation Agreement includes a comprehensive merger clause ("Merger Clause"):
(Am. Compl. Ex. A at 9.) In addition, the letter accompanying the Separation Agreement informed the Plaintiff that he had forty-five days from the date of receipt to sign the Separation Agreement and receive the severance payment. (Am. Compl. Ex. A at 2.)
Prior to signing the Separation Agreement, the Plaintiff consulted with his attorney. (Am. Compl. ¶ 17.) On January 3, 2011, the Plaintiff sent the Defendant a letter requesting a "detailed accounting on the compensation, including commission, it plans on paying Mr. Bulford." (Am. Compl. Ex. B.) The letter stated that "it is impossible to make an informed decision on whether the release should be signed prior to obtaining an accounting regarding how much Verizon believes they owe Mr. Bulford." (Am. Compl. Ex. B.) Specifically, the Plaintiff was interested in commission payments relating to two contracts he helped Verizon secure in November 2010. First, the Plaintiff claims that he helped Verizon secure a contract with Roberts
By letter dated January 14, 2011, the Defendant responded to the Plaintiff's inquiry ("January Letter"). (Am. Compl. ¶ 18, Ex. C.) The January Letter stated, in relevant part:
(Am. Compl. Ex. C.) Despite not receiving the accountings requested, the Plaintiff signed the Separation Agreement on January 21, 2011. (Am. Compl. ¶ 22.) Directly above the Plaintiff's signature on the Separation Agreement was the admission: "I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS RELEASE, FULLY UNDERSTAND WHAT THIS RELEASE MEANS, AND AM SIGNING THIS RELEASE KNOWINGLY AND VOLUNTARILY." (Am. Compl. Ex. A at 9.)
After the Separation Agreement was executed, the Plaintiff received the severance payment specified in the Separation Agreement. (Am. Compl. ¶ 29.) He also received two commission payments not called for by the Separation Agreement. (Am. Compl. ¶¶ 30-31.) Specifically, he received a commission payment of $22,700.22 on February 8, 2011, and a commission payment of $1,437.63 on March 3, 2011. (Am. Compl. ¶¶ 30-31.) No further payments were made.
The Plaintiff alleges that he is entitled to commissions amounting to at least $300,000, and that the Defendant's failure to pay this amount constitutes a breach of contract. (Am. Compl. ¶ 34.) The Plaintiff also alleges that he was fraudulently induced into signing the Separation Agreement by the representations found in the January Letter. (Am. Compl. ¶¶ 36-37.) In addition, the Plaintiff seeks punitive damages and attorney's fees.
A complaint should be dismissed under Rule 12(b)(6) only where it appears that the facts alleged fail to state a "plausible" claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Fed.R.Civ.P. 12(b)(6). A complaint may survive a motion to dismiss for failure to state a claim, however, even if it is "improbable" that a plaintiff would be able to prove those facts; even if the possibility
"[T]he analysis of a 12(b)(6) motion is limited primarily to the face of the complaint and attachments thereto." Brooks v. Blue Cross & Blue Shield, 116 F.3d 1364, 1368 (11th Cir.1997). A contract attached as an exhibit to a pleading may be considered part of that pleading. Homart Development Co. v. Sigman, 868 F.2d 1556, 1562 (11th Cir.1989) ("Since the contract is part of the pleadings, it follows that the court's judgment was made on the pleadings."). Even for documents not attached to the pleading, "where the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff's claim, then the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal, and the defendant's attaching such documents to the motion to dismiss will not require conversion of the motion into a motion for summary judgment." Brooks, 116 F.3d at 1369. Here, the Plaintiff attached the full text of the Separation Agreement and the January Letter to his complaint. The Court will consider both in evaluating the motion to dismiss.
The analysis begins with what the Plaintiff is not seeking. The Plaintiff is not seeking rescission of the Separation Agreement.
Under Georgia law, "[w]here a purchaser affirms a contract that contains a merger or disclaimer provision, he is estopped from asserting reliance on a representation
Here, since the Plaintiff "did not properly elect rescission as a remedy," he is "bound by the terms" of the Separation Agreement. See id. This includes its merger clause, stating in relevant part:
(Am. Compl. Ex. A at 9.) The Plaintiff's fraud claim only relates to statements made in the January Letter.
As a matter of law, the Separation Agreement precludes the breach of contract claim for two reasons. First, the merger clause extinguishes any claim for commissions based on a promise or agreement that predates the Separation Agreement. "The rational basis for merger clauses is that where parties enter into a final contract all prior negotiations, understandings, and agreements on the same subject are merged into the final contract, and are accordingly extinguished." First Data POS, Inc. v. Willis, 273 Ga. 792, 795, 546 S.E.2d 781 (2001). "Under the merger rule, `[a]n existing contract is superseded and discharged whenever the parties subsequently enter upon a valid and inconsistent agreement completely covering the subject-matter embraced by the original contract.'"
Second, even if there was an enforceable agreement for commissions that is not extinguished by the merger clause, any claim based on it is forfeited by the Claim Release provisions in the Separation Agreement. The Plaintiff never challenges that his contract claim falls under the broad terms of the Claim Release. Thus, the continued validity of the Claim Release "leads to the ineluctable conclusion that the claims raised by" the Plaintiff "are barred by the release[]." Kobatake v. E.I. Dupont de Nemours & Co., 162 F.3d 619, 627 (11th Cir.1998).
The Plaintiff advances two theories in order to salvage his contract claim. Each one will be discussed. The Plaintiff suggests that the January Letter can be read as part of the Separation Agreement itself. (Pl.'s Br. in Opp'n to Def.'s Mot. to Dismiss, at 4-7.) Neither this proposition, nor the arguments in support, assumes the existence of a comprehensive merger clause. According to O.C.G.A. § 13-2-2(1), "[p]arol evidence is inadmissible to add to, take from, or vary a written contract.... if only a part of a contract is reduced to writing (such as a note given in pursuance of a contract) and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible." "The purpose of merger clauses is to preclude any unilateral modifications of a written contract through evidence of pre-existing terms that were not incorporated into the written contract." Rome Healthcare LLC v. Peach Healthcare System, Inc., 264 Ga.App. 265, 271, 590 S.E.2d 235 (2003). "Where parties have reduced to writing a complete and certain agreement, the court will, in the absence of fraud, mistake, or accident, conclusively presume that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to ... a written contract." Id. at 271-72, 590 S.E.2d 235. Here, the merger clause states that the Separation Agreement is the entire agreement regarding the Plaintiff's employment and termination.
The Plaintiff argues, however, that because the January Letter and the Separation Agreement were executed contemporaneously, they can be read as one contract. (Pl.'s Br. in Opp'n to Def.'s Mot. to Dismiss, at 5-7.) The Plaintiff cites O.C.G.A. 24-6-3(a): "[a]ll contemporaneous writings shall be admissible to
The Plaintiff also argues that the January Letter references the Separation Agreement and thus incorporates it. (Pl.'s Br. in Opp'n to Def.'s Mot. to Dismiss, at 5.) This is immaterial. The question is if the Separation Agreement references the January Letter. It does not. Finally, the Plaintiff argues that the January Letter evinces the true intent of the parties, and that this shapes how the Separation Agreement ought to be constructed. (Pl.'s Br. in Opp'n to Def.'s Mot. to Dismiss, at 4-5.) The Plaintiff is correct that when interpreting a contract under Georgia law, "[i]t is axiomatic that contracts must be construed to give effect to the parties' intentions." First Data POS, 273 Ga. at 794, 546 S.E.2d 781. However, "[w]henever the language of a contract is plain, unambiguous, and capable of only one reasonable interpretation, no construction is required or even permissible, and the contractual language used by the parties must be afforded its literal meaning." Id.; see also Boddy, 257 Ga. at 380, 359 S.E.2d 659 ("Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties."). The Plaintiff points to no ambiguous provision in the Separation Agreement that could plausibly be interpreted to include the contents of the January Letter.
The Plaintiff's second theory for why the Separation Agreement does not preclude his contract claim is that the Defendant waived the part of the Entitlement Section that states the Plaintiff is owed nothing outside of the severance benefits. (Pl.'s Br. in Opp'n to Def.'s Mot. to Dismiss, at 7-8.) Relying on O.C.G.A. § 13-4-4, the Plaintiff argues that this provision was waived when the Defendant made two partial commission payments subsequent to the execution of the Separation Agreement. O.C.G.A. § 13-4-4, which codifies the mutual departure doctrine, reads:
In addition, § 13-4-4 makes clear that "the effect of a quasi-new agreement resulting from a mutual departure from the terms of a contract is not to extinguish the original contract altogether but merely to suspend those terms departed from until `reasonable notice [is] given ... of [an] intention to rely on the exact terms of the agreement.'" Father & Son Moving & Storage Co. of Georgia v. Peachtree Airport Park Joint Venture, 229 Ga.App. 860, 495 S.E.2d 87 (1997) (citing American Iron & Co. v. Nat'l Cylinder Gas Co., 105 Ga.App. 458, 462, 125 S.E.2d 106 (1962)).
This does not help the Plaintiff. First, waiver of part of the Entitlement Section does not eliminate the effect of the merger clause. See Southwest Plaster & Drywall Co. v. RS Armstrong & Bros. Co., 166 Ga.App. 373, 374, 304 S.E.2d 500 (1983) ("A mutual departure from one contract term, however, does not affect the enforceability of the other contractual provisions."). Even with a waiver, the Separation Agreement would still make no mention of commission payments. As noted, a waiver does not re-write the contract. Thus, the comprehensive merger clause still extinguishes prior agreements suggesting that the Plaintiff is owed commission payments.
Second, the Plaintiff has not alleged that the Defendant waived the Claim Release. Whether the Plaintiff was owed commissions and whether the Plaintiff may seek a judicial remedy for commissions owed are two separate issues. The Plaintiff's claim for breach of contract should be dismissed. The Plaintiff's claims for punitive damages and attorney's fees are predicated on his claims for fraud and breach of contract. Having no independent basis, they must be dismissed for failure to state a claim.
For the reasons set forth above, the Defendant's Motion to Dismiss the Plaintiff's Amended Complaint [Doc. 9] is GRANTED.
SO ORDERED.