CUNNINGHAM v. AMERICAN EXPRESS COMPANY

Filing 21

ORDER granting in part 11 Motion to Dismiss. Counts I, II, and IV are DISMISSED. Plaintiff's claim in Count III remains. Signed by JUDGE RICHARD SMOAK on 11/17/2014. (jcw)

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
JULIA CUNNINGHAM,
Plaintiff,
v.

CASE NO. 5:14-cv-212-RS-GRJ

AMERICAN EXPRESS COMPANY,
Defendant.
_________________________________/
ORDER
Before me are Defendant American Express Company’s Motion to Dismiss
Amended Complaint (Doc. 11), and Plaintiff’s Memorandum in Opposition (Doc.
20). The relief requested in Defendant American Express Company’s Motion to
Dismiss Amended Complaint (Doc. 11) is GRANTED in part.
STANDARD OF REVIEW
To overcome a motion to dismiss, a plaintiff must allege sufficient facts to
state a claim for relief that is plausible on its face. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). Granting a motion to dismiss is appropriate if it is
clear that no relief could be granted under any set of facts that could be proven
consistent with the allegations of the complaint. Hishon v. King & Spalding, 467
U.S. 69, 104 S. Ct. 2229, 2232 (1984).

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The Supreme Court has clarified the specificity of pleading required to
survive a motion to dismiss:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is entitled to
relief.” Specific facts are not necessary; the statement need only
“‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)).
Erickson v. Pardus, 551 U.S. 89, 93 (2007). A complaint thus “does not need
detailed factual allegations.” Bell Atlantic Corp., 550 U.S. at 555.
On the other hand, a conclusory recitation of the elements of a cause of
action is insufficient. A complaint must include more than “labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atlantic Corp., 550 U.S. at 555. A complaint must include “allegations
plausibly suggesting (not merely consistent with)” the plaintiff’s entitlement to
relief. Id. at 557.
In analyzing the sufficiency of the complaint, a District Court must limit
their consideration “to the well-pleaded factual allegations, documents central to or
referenced in the complaint, and matters judicially noticed.” La Grasta v. First
Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). Documents central to the
plaintiff’s claim must be undisputed in order for a District Court to consider the
document for motion to dismiss purposes. Horsley v. Feldt, 304 F.3d 1125, 1134

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(11th Cir. 2002). The Eleventh Circuit has held that in this context, undisputed
“means that the authenticity of the document is not challenged.” Id.
BACKGROUND
While considering a motion to dismiss, I must construe all allegations in the
complaint as true and in the light most favorable to the plaintiff. Shands Teaching
Hosp. and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1310 (11th Cir.
2000) (citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir.
1999)).
In Plaintiff’s Amended Complaint, Plaintiff alleges that from April 1998 to
February 2013, Plaintiff worked for Defendant. Doc. 10. At the time of her
termination, she held the position of Director of Business Development. Id.
According to Plaintiff, she began employment with General Electric, but General
Electric was subsequently acquired by American Express. Id. When American
Express took over General Electric, Plaintiff lost certain benefits, such as her
pension and retirement plan, but she elected to continue working for Defendant
because of the greater commissions built into Defendant’s incentive plan. Id.
Initially, according to Plaintiff, she had a prosperous sales territory, but
Defendant began to take several successful business entities away from her,
including several extremely successful hospitals, and almost all businesses that
were already existing American Express accounts. Id. The majority of companies

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left to Plaintiff were those which had previously used and fired American Express.
Id. Plaintiff argues that these changes to her clients caused her to fail to meet
Defendant’s satisfactory performance standards. Id. Specifically, according to
Plaintiff, Defendant claimed that she only booked approximately 10% of a $40
million sales target and that she needed to meet her $40 million dollar account
status by January 31, 2013. Id. Therefore, Plaintiff was placed on an improvement
plan. Id.
While on the improvement plan, Plaintiff was in contract negotiations with
several potential business customers. Id. However, Defendant’s failure to have an
appropriate leadership structure in place for over eight months in 2012 caused a
significant delay in contract negotiations. Id. Plaintiff argues that even though she
did not complete the $200 million dollar contract with Royal Caribbean Cruise
Lines, she should receive credit for the contract under Defendant’s incentive plan,
and she is entitled to a commission of approximately $250,000.00 for the failed
contract. Id.
Additionally, Plaintiff argues that her 2011 contract with Crossmark (CHI
Holdings) was erroneously characterized as a re-bid rather than a new sale. Id.
Consequently, her commission was reduced from approximately $62,500.00 to
$10,000. Id. Additionally, re-bid contracts do not count towards the sales quota

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Defendant alleged Plaintiff had failed to meet. Id. Defendant has filed to pay
Plaintiff any commission for the CHI Holdings contract. Id.
Plaintiff also argues that Defendant erroneously characterized Plaintiff’s
HSN contract as an expansion rather than a new sale. Id. This mischaracterization
resulted in non-payment to Plaintiff in the amount of $12,500.00. Id. However, in
Plaintiff’s Amended Complaint, Plaintiff admits that HSN had an existing contract,
but had reduced their American Express cards to only one. Id. After Plaintiff
worked with HSN, it re-signed for over five-hundred cards again. Id. A signing is
considered an “Expansion if there is an existing relationship with the client . . . that
generated volume within the prior 12-month period.” Id.
Lastly, Plaintiff argues that she executed a contracted with Glazer’s prior to
her termination. Id. She earned a $12,500.00 commission with this contract. Id.
However, Defendant has failed to pay Plaintiff her earned commission. Id.
On September 26, 2014, Plaintiff filed her four-count Amended Complaint
alleging breach of contract, quantum meruit, promissory estoppels, and unjust
enrichment. Id.
ANALYSIS
In Defendant’s motion to dismiss, Defendant argues that Plaintiff has failed
to state a claim upon which relief can be granted because an employer’s unilateral
statement of policy does not rise to the level of an enforceable contract as a matter

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of law. Doc. 11. Additionally, according to Defendant, Plaintiff has failed to state a
claim for the three asserted equitable theories. Id. In response, Plaintiff argues she
has sufficiently pled facts to support each claim. Doc. 20.
As an initial matter, “Florida law has long recognized that statements in
employee handbooks, policy statements, or procedure manuals do not constitute
the terms of a contract of employment and thus do not give rise to enforceable
contract rights.” Turton v. Singer Asset Fin. Co., 120 So. 3d 635, 636 (Fla. Dist. Ct.
App. 2013). Nevertheless, an employee handbook may be an otherwise enforceable
contract if “a statement induces an employee to refrain from performing an action
separate from their normal contractual duties.” Id. Additionally, Florida law has
recognized that an employee policy is an employment contract if the policy
contains “specific language which expresses the parties' mutual agreement that the
manual constitutes a separate employment contract.” OneSource Facility Servs.,
Inc. v. Mosbach, 508 F. Supp. 2d 1115, 1123 (M.D. Fla. 2007).
As written, the allegations of Plaintiff’s Amended Complaint do not indicate
that there was express language in the Global Corporate Services Incentive Plan
which would make the document a separate employment agreement. See Walton v.
Health Care Dist. of Palm Beach Cnty., 862 So. 2d 852, 855-56 (Fla. Dist. Ct.
App. 2003). Additionally, Plaintiff has not alleged that Plaintiff and Defendant had
reached a mutual agreement to this effect. See id. Lastly, Plaintiff has failed to

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allege any facts that would support a finding that the document induced her to
refrain from performing an action separate from her normal contractual duties. See
Turton 120 So. 3d at 636. Plaintiff has only alleged that the document was a legally
binding contract – a conclusion without any supportable allegations. See Bell
Atlantic Corp., 550 U.S. at 555. Accordingly, absent any allegations that the
contents of the document were subject of negotiation and consideration, Plaintiff
has failed to state a claim upon which relief may be granted for Count I of her
Amended Complaint.
In Count II of the Amended Complaint, Plaintiff alleges an action against
Defendant for quantum meruit. To establish a prima facie case under quantum
meruit, Plaintiff was required to show: “(1) the plaintiff conferred a benefit on the
defendant, (2) the defendant had knowledge of the benefit, (3) the defendant
accepted or retained the benefit conferred, and (4) the circumstances indicate that it
would be inequitable for the defendant to retain the benefit without paying fair
value for it.” Dyer v. Wal-Mart Stores, Inc., 535 F. App'x 839, 842 (11th Cir.
2013). Plaintiff alleges that she “completely or substantially performed under her
agreement with Defendant. . . Defendant assented to these services . . . and
received the benefits of these services performed . . . .” Doc. 10. Because Plaintiff
alleges, in the same count, that an express agreement existed, she performed under
the agreement, and Defendant failed to pay for these agreed upon services, her

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claim for quantum meruit must fail. See e.g., Poe v. Levy's Estate, 411 So. 2d 253,
256 (Fla. Dist. Ct. App. 1982).
Next, Defendant argues that Plaintiff has failed to plead the elements of
promissory estoppels in support of her third claim. Doc. 11. Generally,
“promissory estoppel is the principle that a promise made without consideration
may nonetheless be enforced to prevent injustice if the promisor should have
reasonably expected the promisee to rely on the promise and if the promisee did
actually rely on the promise to his or her detriment.” DK Arena, Inc. v. EB
Acquisitions I, LLC, 112 So. 3d 85, 93 (Fla. 2013). Under Florida law, to establish
a prima facie case of promissory estoppels, a plaintiff must allege that there was a
(1) promise which the promisor should reasonably expect to induce action or
forbearance on the part of the promise and (2) which does induce such action or
forbearance, and (3) that injustice can only be avoided by enforcement of the
promise. Id.
Plaintiff has alleged that there was a promise to pay her in accordance with
the employee document, that due to the nature of the services provided to
Defendant by Plaintiff, Defendant reasonably should have expected the promise it
made to Plaintiff to induce reliance in the form of action or forbearance, and that
there was reliance and forbearance on the part of the Plaintiff. Doc. 10.
Specifically, when Defendant acquired Plaintiff’s previous employer, despite

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losing her employee benefits, Plaintiff did not seek or accept employment
elsewhere. Id. Accordingly, Plaintiff has sufficiently alleged sufficient facts to
support a claim of promissory estoppels.
Lastly, like a claim for quantum meruit, to state a claim for unjust
enrichment under Florida law, “a plaintiff must allege (1) the plaintiff conferred a
benefit on the defendant, (2) the defendant had knowledge of the benefit, (3) the
defendant accepted or retained the benefit conferred, and (4) the circumstances
indicate that it would be inequitable for the defendant to retain the benefit without
paying fair value for it.” Dyer, 535 F. App'x at 842. Because Plaintiff alleges, in
the same count, that an express agreement existed, she performed under the
agreement, and Defendant failed to pay for these agreed upon services, her claim
for unjust enrichment must fail. See e.g., Poe v. Levy's Estate, 411 So. 2d 253, 256
(Fla. Dist. Ct. App. 1982). Moreover, Plaintiff alleges that she conferred those
services during the course of her employment as required of her during her
employment. Doc. 10. Plaintiff has failed to allege any facts that would support
that she was not paid for her employment, only that Defendant failed to pay her the
additional commission under its unilateral incentive structure.
CONCLUSION

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The relief requested in Defendant American Express Company’s Motion to
Dismiss Amended Complaint (Doc. 11) is GRANTED in part. Counts I, II, and
IV are DISMISSED. Plaintiff’s claim in Count III remains.

ORDERED on November 17, 2014.
/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE