Dodge v. Mevion Medical Systems, Inc. et al

Filing 63

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER, denying 42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (as to Count 1 of the First Amended Complaint) filed by Tianning Yu, Mevion Medical Systems, Inc., James Meng, and denying 46 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (as to Counts 3 and 4 of Defendant Mevion Medical Systems, Inc's Counterclaims) filed by Christopher Dodge.(Lima, Christine)

Case 1:21-cv-10240-NMG Document 63 Filed 12/15/21 Page 1 of 11

United States District Court
District of Massachusetts
Christopher Dodge,
Plaintiff,
v.
Mevion Medical Systems, Inc.,
et al.,
Defendant.

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Civil Action No.
21-10240-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises from claims of plaintiff Christopher Dodge
(“Dodge” or “plaintiff”) against his former employer Mevion
Medical Systems, Inc. (“Mevion”), its president James Meng
(“Meng”) and its treasurer Tianning Yu (“Yu”) (collectively,
“defendants”).

The claims stem from defendants’ alleged failure

to recompense Dodge, who was partially paid on commission, for a
sale that was completed only after he was terminated.

In their

answer to the original complaint, defendants allege a variety of
counterclaims regarding Dodge’s compensation and his posttermination activity.
Both parties have filed “partial motions” to dismiss some
claims/counterclaims of their opponent and, in response to a
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“partial motion,” the Court is tempted to issue a partial
decision which would certainly save time and effort.

Upon

reflection, the Court deems it more prudent, however, to issue a
complete decision and suggests that, in the future, counsel file
complete motions, even if what they seek is partial relief.
I.

Background
As set forth in the complaint, Dodge was hired by Mevion in

August, 2016 as the company’s field vice president for business
development and customer finance.

Mevion is incorporated in

Delaware, with its principal place of business in Littleton,
Massachusetts.

The company is engaged in the research,

development and sale of proton therapy machines used to treat
cancerous tumors throughout the body.
Dodge’s initial employment agreement sets forth the terms
of his employment, including the structure of his compensation,
which included three components: (1) salary, (2) recoverable
draw and (3) commissions for the sale of Mevion products.
According to the 2016 agreement, Dodge was entitled to a
commission on a sale only after the following conditions were
met: (1) a binding agreement was fully executed between Mevion
and the customer without contingencies, (2) Mevion received a
copy of that agreement and (3) Mevion obtained a non-refundable
down payment of at least One Million Dollars from the customer.
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That agreement was replaced in March, 2019 with a new employment
agreement that had substantially the same terms, both concerning
the structure of Dodge’s compensation and the prerequisites for
receiving a commission.
The March, 2019 iteration of Dodge’s employment agreement
was, however, short-lived.

In July, 2019, it was once again

replaced, this time with notable changes.

The July, 2019

version altered Dodge’s compensation and limited the components
thereof to salary and eligibility for a discretionary bonus.
Dodge accepted that agreement but, according to the complaint,
only in reliance that Mevion would also offer him the
opportunity to earn commissions.

Mevion subsequently did so.

In March, 2020, Meng sent Dodge a draft sales commission plan
and, in May, 2020, Meng emailed Dodge, as well as other Mevion
staff, notice that the company was “going to work within the
guidelines of this commission program for 2020.”
That sales commission plan described terms different from
those contained in Dodge’s prior employment agreements.

In

relevant part, the commission plan did not set forth the prior
prerequisites but rather stated that “[c]ommission is paid based
on the milestone payment schedule with the customer”.

The plan

also specified that a terminated employee would continue to
receive commission payments so long as the employee had been
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terminated without cause.

The plan described the formula by

which the commission was to be calculated and distributed among
Mevion employees, providing that, “[i]f senior sales (SS) has
developed the account...the primary SS person gets 40% of the
total commission.”
Dodge alleges that, before his termination on November 18,
2020, he had effectively sold Mevion’s product to Atrium Health
(“Atrium”), a healthcare network based in Charlotte, North
Carolina.

In his complaint, Dodge asserts that Mevion employees

are prepared to testify that Dodge was substantially, if not
entirely, responsible for the sale to Atrium, which resulted in
an initial milestone payment of $4.5 million in December, 2020.
The sale, as described in the complaint, was the result Dodge’s
efforts over several years to develop a relationship with Atrium
executives.

Dodge, who was terminated without cause, claims

that he is entitled to receive a commission based upon that
initial payment and others.
Dodge’s complaint asserts four claims against defendants:
violation of the Massachusetts Wage Act (“MWA”), M.G.L. c. 149,
§ 148, against all defendants (Count I) and breach of contract
(Count II), breach of implied covenant of good faith and fair
dealing (Count III), and unjust enrichment (Count IV) against
Mevion.
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In their answer, defendants declare a variety of
affirmative defenses, as well as counterclaims.

They

counterclaim for breach of contract (Count I), unjust enrichment
(Count II), breach of restrictive covenant agreement (Count
III), breach of duty of loyalty (Count IV), misappropriation of
confidential information and trade secrets (Count V), violation
of the Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq. (Count
VI), and tortious interference with contractual relations and
prospective advantageous relations (Count VII).

Those

counterclaims emanate from Dodge’s activities after his
employment with Mevion ended.
Pending before the Court are cross motions to dismiss.
Defendants seek to dismiss plaintiff’s claim for violations of
the MWA (Count I) on the ground that the commission allegedly
owed is not wages and the statute invoked is thus inapplicable.
Plaintiff correspondingly seeks to dismiss defendants’
counterclaims for breach of a restrictive covenant (Count III)
and breach of duty of loyalty (Count IV) by asserting that the
July, 2019 agreement materially changed the terms of Dodge’s
employment such that the prior employment agreements, upon which
the subject obligations are based, were void at the time of his
termination.

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II.

Motion to Dismiss
A. Legal Standard
To survive a motion under Fed. R. Civ. P. 12(b)(6), the

subject pleading must contain sufficient factual matter to state
a claim for relief that is actionable as a matter of law and
“plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

A claim is facially plausible if, after accepting as

true all non-conclusory factual allegations, the court can draw
the reasonable inference that the defendant is liable for the
misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d
1, 12 (1st Cir. 2011).
When rendering that determination, a court may not look
beyond the facts alleged in the complaint, documents
incorporated by reference therein and facts susceptible to
judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011).

A court also may not disregard properly pled

factual allegations even if actual proof of those facts is
improbable. Ocasio-Hernandez, 640 F.3d at 12.

Rather, the

inquiry required focuses on the reasonableness of the inference
of liability that the plaintiff is asking the court to draw. Id.
at 13.

The assessment is holistic: “the complaint should be

read as a whole, not parsed piece by piece to determine whether
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each allegation, in isolation, is plausible”. Hernandez-Cuevas
v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013), quoting OcasioHernandez, 640 F.3d at 14.
B. Application
1.

Defendants’ Motion to Dismiss

The purpose of the MWA “is to protect employees and their
right to wages by requiring employers to pay employees their
wages in a timely fashion.” Parker v. EnerNOC, Inc., 484 Mass.
128, 132 (2020) (internal quotations and citations omitted).

To

advance that purpose, the statute applies to commissions “when
the amount of such commissions...has been definitely determined
and has become due and payable to such employee.” M.G.L. c. 149,
§ 148.

Defendants argue that because the commission that Dodge

seeks was not definitely determined and due and payable at the
time of his termination, it is not subject to the statutory
protection of the MWA.
That logic, although ostensibly based upon statutory
language, was soundly rejected by a recent decision of the
Massachusetts Supreme Judicial Court in Parker, 484 Mass. at
135.

In that case, the court made clear that neither the

statutory language nor precedent establishes:
a categorical rule that commissions that do not meet
those conditions are considered not to be wages under
the act; instead, the clause provides that the failure
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to pay commissions when they are definitely determined
and due and payable is one way to violate the act.
Id. at 135 (citing Weber v. Coast to Coast Med., Inc., 83 Mass.
App. Ct. 478, 482 (2013)).

Defendants’ attempt to limit the

scope of that reasoning to the circumstances at issue in Parker,
in which a jury found that the relevant employer terminated an
employee in violation of the anti-retaliation provisions of
Mass. Gen. L. c. 149, § 148A and, absent the retaliatory
discharge, the employee would have earned the commission without
doing anything more, is unconvincing.

Nothing in the language

of Parker suggests the narrow reading proposed and defendants’
argument is thus discounted.
Moreover, Dodge has asserted facts sufficient to allege
that the commission he is purportedly owed falls within the
Parker court’s broad definition of the term “wage” for purposes
of the MWA.

Noting that the Act does not define the term, the

Supreme Judicial Court has defined a wage as:
a pledge or payment of usually monetary renumeration
by an employer especially for labor or services
and determined that it could include post-termination
renumeration, such as commissions, in certain circumstances.
Parker, 484 Mass. at 135, n.11 (quoting Webster's Third New
International Dictionary 2568 (1993)).

Here, in contrast to the

circumstances in Parker, the commission allegedly owed to Dodge

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was not conditioned on continued employment.

Mevion’s 2020

sales commission plan unambiguously provided that:
If the employee has been terminated without cause by
Mevion, commission payout will continue as if this
employee were still employed.
Based upon that language, as well as the specification in
the commission plan that the Mevion employee who “developed the
account” is owed a commission and Dodge’s assertion that he
“developed” the Atrium account, plaintiff has pled facts
sufficient to contend that the commission he now seeks is a
“wage” under the MWA.

Dodge has set forth facts sufficient to

withstand defendants’ motion to dismiss.
Defendants’ second argument that Dodge failed to plead
facts sufficient to allege that Mevion terminated him for the
purpose of depriving him the relevant commission is inapposite
to the claims at issue.

None of the causes of action pled

necessitates an analysis of the intent with which Mevion
terminated Dodge and the prior reasoning of the Court does not
rely upon that assertion.
2.

The Court need go no further.

Plaintiff’s Motion to Dismiss

Plaintiff, in turn, seeks dismissal on two of defendants’
counterclaims.

Dodge contends that the claims, which are based

upon the non-compete and non-solicitation obligations of the

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August, 2016 employment agreement, are void because the July,
2019 agreement materially changed the terms of his employment.
The material change doctrine under Massachusetts law
provides that:
Each time an employee's employment relationship with
the employer changes materially such that they have
entered into a new employment relationship[,] a new
restrictive covenant must be signed.
Lycos v. Jackson, 2004 WL 2341335, at *3 (Mass. Super. Ct. Aug.
25, 2004); see Rent–A–PC v. March, 2013 WL 2394982, at *2 (D.
Mass.

May 28, 2013).

Changes such as a promotion to a new

position, an increase in salary or a conferral of additional
responsibilities can be evidence of a material change in the
employment relationship. Lycos, 2004 WL 2341335, at *3; see also
NuVasive, Inc. v. Day, 954 F.3d 439, 444 (1st Cir. 2020), and
cases cited.
The Court has found no case in which a similar question has
been resolved at the motion to dismiss stage, and plaintiff
cites none.
[T]he question of whether any changes in the
employment relationship would be sufficiently material
to require execution of a new agreement is not evident
from the pleadings, but rather would require factual
development through discovery.
MOCA Sys., Inc. v. Bernier, No. CIV.A. 13-10738-LTS, 2013 WL
6017295, at *4 (D. Mass. Nov. 12, 2013).

As such, the question

is unripe at the current stage of litigation because, in ruling
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on a motion to dismiss, “a court should not decide questions of
fact.” Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir.
1987); see Agero Admin. Serv. Corp. v. Campolo, 366 F. Supp. 3d
170, 174 (D. Mass. 2019) (“Assuming, arguendo, that the
enforceability of the non-compete provision hinges on whether
there was a material change in [defendant’s] employment terms,
significant fact issues remain that cannot be decided at this
stage.”).
ORDER
For the foregoing reasons, defendants’ motion to dismiss
(Docket No. 42) and plaintiff’s motion to dismiss (Docket No.
46) are DENIED.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated December 15, 2021

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