Kincaid v. Wells Fargo Sec., L.L.C.

870 F.Supp.2d 1252

James L. KINCAID, Jr., Plaintiff,

v.WELLS FARGO SECURITIES, L.L.C., et al., Defendant.

Case No. 10–CV–808–JHP–TLW.

United States District Court, N.D. Oklahoma.

April 26, 2012.

James David Jorgenson, Laurence Lindsay Pinkerton, Pinkerton & Finn, PC, Tulsa, OK, for Plaintiff.

Leslie L. Lynch, Gable Gotwals, Oklahoma City, OK, Michelle Brannon Brookshire, Littler Mendelson PC, Dallas, TX, Paul J. Kennedy, Littler Mendelson, PC, Washington, DC, for Defendants.

OPINION AND ORDER

JAMES H. PAYNE, District Judge.

Before the Court are Plaintiff's Motion for Partial Summary Judgment ¹ and Brief in Support,² Defendant' Opposition To Plaintiff's Motion for Partial Summary Judgment,³ and Plaintiff's Reply Brief in Support of His Motion for Partial Summary Judgment.⁴ For the reasons set forth below, Plaintiff's Motion for Partial Summary Judgment is DENIED.

BACKGROUND

A. Undisputed Factual Background⁵

The instant case arises from an employment contract between the Plaintiff Kincaid and Wachovia Capital, a subsidiary of Wachovia Corporation, executed by Plaintiff on July 14, 2008.⁶ This contract, entitled “Offer Summary,” was executed in connection with Wachovia Investment Holdings, L.L.C.'s acquisition of Resolute Holdings' interest in Odyssey Energy and included an Addendum negotiated by the parties.⁷ At the time of this acquisition, Plaintiff was a principal of resolute Holdings.⁸ On December 31, 2008 Defendant Wells Fargo Securities, a subsidiary of Wells Fargo Bank, N.A., (Wells Fargo) acquired Wachovia Corporation and assumed Wachovia Capital's liability under the Offer Summary.⁹

At issue in this summary judgment motion is a provision of the Offer Summary that Plaintiff contends entitles him to a Special Award under the Wachovia Special Award Plan (the Plan) in the amount of $2,225,000.¹⁰ This award was officially conferred by letter on January 31, 2009, subject to a three-year cliff vesting schedule.¹¹ According to the vesting schedule, the total amount of the award would have been payable on March 31, 2012, after three years of continued employment, absent Plaintiff's termination “for cause.” ¹² Defendant Wells Fargo acknowledges that the Wachovia Special Award Plan was in effect at the time of Plaintiff's termination.¹³

On or about October 15, 2010, Defendant Wells Fargo terminated Plaintiff without providing written reasons for the basis of the termination.¹⁴ Instead, representatives for Defendant Wells Fargo orally referred to a “workplace professionalism policy.” ¹⁵ Defendant Wells Fargo has alleged, through its discovery responses that the contractual grounds for Plaintiff's termination were “for cause” based on “misconduct” pursuant to paragraph 6, subparagraphs (iii) and (iv) of Plaintiff's Offer Summary. ¹⁶ These allegations of misconduct, based on the interviews of six Wells Fargo employees, consisted of “(1) requiring female employees to hold Plaintiff's hands while he led them into office meetings, (2) rubbing female employees' shoulders, (3) regularly calling employees “stupid” or “idiot,” (4) making sexual innuendoes or other inappropriate comments about female employees, (5) slapping food out of a female employee's hands, (and (6) accusing a female employee of having sex with a customer to get a better price).” ¹⁷

Upon dismissal, Plaintiff reviewed his Offer Summary, and believing he was due the Special Award, demanded payment of the award through counsel.¹⁸ Counsel for Defendant Wells Fargo responded with a letter dated November 9, 2010.¹⁹ In this letter Counsel for Defendant Wells Fargo stated (1) that Plaintiff was terminated “for cause” and was therefore not entitled to any of the payments referenced in the Offer Summary, (2) that the entitlement to payment of the Special Award is determined by the Special Award Plan, (3) that the “Termination for Cause” definition in the Special Award Plan does not offer an opportunity to cure as does the Offer Summary, and that Plaintiff can appeal his termination through “the Company's” (i.e. Wells Fargo's) Termination Appeal Process.²⁰

B. Relevant Procedural Background

On November 23, 2010, Plaintiff filed the instant suit in Tulsa County District Court.²¹ Plaintiff's initial Petition alleged two counts of breach of contract, one for specific performance and one for damages. ²² Defendants removed this case to the Northern District of Oklahoma pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, alleging complete diversity and an amount in controversy well in excess of the $75,000 jurisdictional minimum.²³

On December 22, 2010, Defendants filed a Motion to Dismiss Plaintiff's Petition.²⁴ On January 5, 2011, Plaintiff filed his First Amended Complaint, and on January 21, 2011 the parties entered a joint stipulation to withdraw Defendants' Motion to Dismiss.²⁵ Upon entry of the joint stipulation the Court found Defendant's Motion to Dismiss moot.²⁶ On November 7, 2011, Plaintiff filed his Second Amended Complaint, adding a claim of constructive fraud to his existing breach of contract claim.²⁷ Plaintiff filed the instant Motion for Partial Summary Judgment eight days later.²⁸ The Motion is fully briefed and at issue.

DISCUSSION

A. Summary Judgment Standard

Although a bit convoluted, Plaintiff's instant Motion for Partial Summary Judgment ultimately asks this Court to find that Wells Fargo's decision to terminate Plaintiff was not “for cause” as defined by Plaintiff's Offer Summary, therefore Defendant breached Plaintiff's employment contract by failing to pay him the Special Award under the Plan.²⁹ Plaintiff further alleges that Defendants breached the employment contract by failing to afford him the contractual process required to deny him an award under the Plan.³⁰ Plaintiff similarly asks the Court to grant him summary judgment on those grounds.

Federal Rule of Civil Procedure 56(c) provides the standard courts must use when determining whether summary judgment is proper. According to the rule, summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” ³¹ “On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” ³² If the provisions of a contract are unambiguous, the meaning of that contract is a matter of law for the court.³³ Therefore, barring any genuine issues of fact, this Court can determine the parties' rights and obligations under the contract as a matter of law.

B. Applicability of the Terms of the Offer Summary

Plaintiff seeks summary judgment for breach of contract, alleging he was not terminated “for cause” under the terms of the Offer Summary, therefore Defendants' breached their contract by failing to pay him the Special Award. In addition to their arguments that Plaintiff was terminated “for cause” pursuant to the terms of the Offer Summary and therefore not entitled to any of the benefits provided by that contract, Defendants also contend that the Special Award Plan provides a distinct definition of “for cause” and that this language militates against summary judgment.³⁴ Due to these arguments, before reaching the ultimate issue of whether or not Plaintiff is entitled to summary judgement regarding Defendants' alleged breach, the Court must first determine whether the terms of the Offer Summary or the terms of the Plan control with regard to the definitions “for cause.”

As the Offer Summary itself is apparently a creature of Oklahoma law, this Court, sitting in diversity, must apply Oklahoma law as announced by the highest court of the state.³⁵ In the absence of any authoritative pronouncement by that court, federal courts, sitting in diversity, must predict how Oklahoma's highest court would rule, following “any intermediate state court decision unless other authority convinces [this Court] that the state supreme court would decide otherwise.” ³⁶

In concluding that the differing “for cause” definitions in his Offer Summary entitle him to summary judgment, Plaintiff largely disregards the terms and conditions of the Plan.³⁷ Plaintiff contends that the Special Award Plan constitutes a contract relating to the same matters as the Offer Summary and should therefore be read together with the Offer Summary. ³⁸ Plaintiff contends that in reading the two documents as one contract, the Court must defer to the terms of the Offer Summary actually “written” (i.e. negotiated) by the parties, rather than the pre-“printed” terms of the Special Award Plan.³⁹ In support of this proposition, Plaintiff cites Oklahoma State title 15, § 167:

Where a contract is partly written and partly printed, or where part of it is written or printed under the special directions of the parties, and with a special view to their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and particular contract in question the written parts control the printed parts, and the parts which are purely original control those which are copied from a form. And if the two are absolutely repugnant, the latter must be so far disregarded.⁴⁰

If the Court accepts Plaintiff's legal assertions, it would necessarily need to apply both the “for cause” definition of the Offer Summary, rather than those of the Plan in ruling on Plaintiff's Motion. However, unlike the contract scenarios contemplated in § 158 and § 167, this is not a case in which multiple instruments were contemporaneously executed by the parties. The Special Award in dispute was included as part of Plaintiff's compensation under his Offer Summary.⁴¹ The specific terms of the Offer Summary read:

In January 2009 we are pleased to inform you that you will receive a special award under the Wachovia Special Award Plan in the amount of $2,225,000 effective on...