ZINMAN v. VANTAGE LEARNING, LLC et al
MEMORANDUM OPINION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 1/30/2017. 1/30/2017 ENTERED AND COPIES E-MAILED.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
VANTAGE LEARNING, LLC, VANTAGE
LEARNING (USA), LLC, MCCANN
ASSOCIATES, INC., BRIAN GIBNEY
AND PETER MURPHY,
After Matthew Zinman was fired from his position as a Sales Representative following a period
of medical leave, he brought claims under the Family and Medical Leave Act of 1993 (“FMLA”), 29
U.S.C. § 2601 et seq., and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.A. § 12101
et seq. His employer, Defendant McCann Associates, Inc. (“McCann”), counterclaimed for fraud,
breach of contract, and unjust enrichment. McCann alleges that Zinman was terminated because he
made false statements and omitted material information in connection with his employment application,
misrepresented his disability, and breached his employment contract by moonlighting for his own
business. Zinman has now moved to dismiss McCann’s Counterclaims and to strike certain allegations
in the pleadings.
In May 2014, Zinman applied to be a Regional Sales Representative for McCann. He was hired
for the position and started work a short while later. The resumé he submitted to McCann did not
identify his immediately prior employer which, unbeknownst to McCann, had filed suit against Zinman
for breach of contract, conversion, and fraud.
According to McCann, during the entire period of Zinman’s employment, he focused his
attention on soliciting funds for and promoting his own business. Additionally, on McCann’s time and
McCann’s dime, he attended court hearings related to both the matter filed against him by his former
employer and to proceedings related to his filing for bankruptcy.
After Zinman had been with McCann for a year and some months, he informed his employer that
he was bipolar and suffered from manic depression. According to McCann, Zinman requested and was
granted a leave of absence as unaccrued vacation time and, later, an unpaid leave of absence in order to
manage his disability. He then submitted a request for unemployment benefits. Despite his purported
disability, while on leave, Zinman engaged in work related to his own business: he made a video, posted
a slide presentation online, solicited donations, and sold “Internship eToolkit” licenses – all for his own
company. McCann fired him in June 2016.
For the purposes of this motion, the facts McCann alleges in its counterclaims will be accepted
as true and viewed in the light most favorable to McCann as the non-moving party. Rocks v. City of
Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989) (citations omitted). To survive a motion to dismiss, each
of the counterclaims must contain sufficient factual allegations, accepted as true, to state a claim for
relief that is “plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In light of Twombly, ‘it is no longer sufficient to allege
mere elements of a cause of action; instead a complaint must allege facts suggestive of [the proscribed
conduct].’” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 177 (3d Cir. 2010)
(quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).
Zinman posits that McCann’s counterclaims must be dismissed on jurisdictional grounds
pursuant to Federal Rule of Civil Procedure 12(b)(1). Each of the counterclaims are state law claims
and, accordingly, are subject to the Court’s supplemental jurisdiction only if they arise out of the same
transaction or occurrence that forms the basis of the original claim. Great Lakes Rubber Corp. v.
Herbert Cooper Co., 286 F.2d 631 (3d Cir. 1961). A counterclaim that arises out of the transaction or
occurrence that is the subject matter of an opposing party’s claim is a compulsory counterclaim within
the meaning of Fed. R. Civ. P. 13(a). Any counterclaim that is not compulsory is a permissive
counterclaim. Fed. R. Civ. P. 13(b). Plaintiff’s argument is that this Court lacks subject matter
jurisdiction because the counterclaims are all state law claims and are all permissive rather than
A review of McCann’s allegations, considered as true for the purposes of this motion, leads to
the conclusion that the counterclaims are compulsory in that they arise out of the same transaction or
occurrence that is the subject matter of Zinman’s claims. Fed. R. Civ. P. 13(a); Mortensen v. First Fed.
Sav. and Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). “[A] counterclaim is compulsory if it bears a
‘logical relationship’ to an opposing party’s claim. The phrase ‘logical relationship’ is given meaning
by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related
to the opposing party’s claim where separate trials on each of their respective claims would involve a
substantial duplication of effort and time by the parties and the courts. Where multiple claims involve
many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the
same basic controversy between the parties, fairness and considerations of convenience and of economy
require that the counterclaimant be permitted to maintain his cause of action.” Great Lakes Rubber
Corp. v. Herbert Cooper Co., 286 F.2d 631, 643 (3d Cir. 1961) (internal citations omitted).
Zinman’s FMLA and ADA claims are premised on his employer’s alleged failure to
accommodate his disability, the requirement that he take a block of unpaid leave, and his termination.
McCann contends that Zinman’s conduct during his recruitment and employment created its causes of
action against him. Specifically, the fraud, breach of contract, and unjust enrichment counterclaims are
premised on allegations that Zinman omitted material information from his employment application,
misrepresented his disability, performed deficiently in his role, engaged in unauthorized secondary
employment, staged a “sick-out” so he could pursue his own business venture, and was ultimately
terminated for poor performance. McCann asserts that this alleged misconduct both served as the basis
for Zinman’s termination and constituted fraud, breach of contract, and unjust enrichment. Since the
misconduct McCann alleges as the basis for its counterclaims is both factually and legally intertwined
with Zinman’s claims, the counterclaims bear a logical relationship with the facts and issues set forth in
the Complaint and are compulsory counterclaims over which the Court has jurisdiction. Moreover, the
claims and counterclaims involve the same parties, overlapping witnesses, the same time period, factual
background, factual issues, and documents and other evidence. To require that these claims be litigated
separately – the claims in federal court and counterclaims in state court – would result in substantial
duplication of effort and time by the parties and the courts.
A. Breach of Contract
Zinman seeks dismissal of McCann’s breach of contract counterclaim for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). To maintain its breach of contract counterclaim,
McCann must have alleged: (1) the existence of a contract; (2) breach of duty under that contract; and
(3) resulting damages. Lackner v. Glosser, 892 A.2d 21, 30 (Pa. Super. 2006).
McCann has sufficiently alleged the existence of a written employment contract, as well as its
terms. Specifically, it alleges that the contract consisted of the offer letter, employment agreement
signed by Zinman, and employee handbook – each of which is attached to its counterclaims. The
breach, McCann alleges, flows from Zinman’s violation of a section of the handbook that prohibits
secondary employment. In Pennsylvania, employers can create legally binding contracts with at-will
employees via an employment handbook. Martin v. Capital Cities Media, Inc., 354 Pa. Super. 199, 221
(1986) (“Importantly, we do not mean to say that an employer cannot create a legally binding “contract”
with his employees via an employment handbook.”). See also Braun v. Wal-Mart Stores, Inc., 24 A.3d
875, 939-43 (Pa. Super. 2011) (holding that the intention of the parties is the ultimate guide to whether
an employer and employee intended to modify the employee’s at-will status, and finding the employee
handbook to constitute a unilateral contract); Caucci v. Prison Health Servs., Inc.,153 F.Supp.2d 605,
611 (E.D. Pa. 2001) (holding that provisions in an employee handbook can constitute a unilateral offer
of employment which an at-will employee accepts by continuing performance).
McCann has also sufficiently alleged a breach of that contract: a violation of the “Secondary
Employment” section of the employee handbook which mandates that “[n]o employee shall accept or
engage in any activity, business, or employment, either during or after working hours that would conflict
with the Company’s interests.”
Finally, McCann has adequately pled damages in the form of loss of salary paid to Zinman, as
well as travel and other work related reimbursements.
Accordingly, McCann’s breach of contract counterclaim shall not be dismissed.
B. Unjust Enrichment
Zinman also moves to dismiss McCann’s unjust enrichment counterclaim for failure to state a
claim under Rule 12(b)(6). The elements of an unjust enrichment claim are: (1) benefits conferred on
defendant by plaintiff; (2) appreciation of such benefits by defendant; and (3) acceptance and retention
of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit
without payment of value. Durst v. Milroy Gen. Contracting, Inc., 52 A.3d 357, 360 (Pa. Super. 2012)
(citing Schenck v. K.E. David, Ltd., 666 A.2d 327, 328 (Pa. Super. 1995)).
A cause of action for unjust enrichment is a claim whereby one party seeks restitution for
benefits conferred on and retained by a party “who offered no compensation in circumstances where
compensation was reasonably expected.” White v. Conestoga Title Ins. Co., 53 A.3d 720, 723 n.6 (Pa.
2012); see also Roethlein v. Portnoff Law Assocs., Ltd., 81 A.3d 816, 825 n.8 (Pa. 2013) (“Unjust
enrichment is the retention of a benefit conferred by another, without offering compensation, in
circumstances where compensation is reasonably expected, for which the beneficiary must make
restitution.”) (citing American and Foreign Ins. Co. v. Jerry’s Sport Ctr., Inc., 2 A.3d 526, 532 n.7 (Pa.
“The touchstone of a meritorious claim [for unjust enrichment] is ‘the transfer of a benefit
without adequate legal ground’ rather than ‘unjust enrichment in any . . . broad sense.’” Enslin v. The
Coca-Cola Company, 136 F.Supp.3d 654, 676 (E.D. Pa. 2015) (citation omitted). “Unjustified
enrichment is enrichment that lacks an adequate legal basis; it results from a transaction that the law
treats as ineffective to work a conclusive alteration in ownership rights. Broadly speaking, an
ineffective transaction for these purposes is one that is nonconsensual.” Restatement (Third) of
Restitution and Unjust Enrichment § 1 cmt. b. McCann alleges that Zinman was unjustly enriched by
accepting $110,207.85 in wages and $15,691.31 in expenses without fulfilling his good-faith obligations
to earn his salary and expenses. It does not allege that it transferred Zinman’s salary and expenses
without adequate legal basis. Rather, it asserts that it paid Zinman pursuant to an employment
agreement and that both parties consented to the transactions at the time of payment. These allegations
do not sufficiently state a claim for unjust enrichment.
Zinman seeks dismissal of McCann’s fraud counterclaim on the basis that McCann has not
pleaded fraud with particularity. This theory is unavailing. Federal Rule of Civil Procedure 9(b)
requires a party to “state the circumstances of the alleged fraud with sufficient particularity to place the
defendant on notice of the precise misconduct with which [it is] charged.” Federico v. Home Depot, 507
F.3d 188, 200 (3d Cir. 2007) (quoting Lum v. Bank of Am., 361 F.3d 217, 223-24 (3d Cir. 2004)). “To
satisfy this standard, the plaintiff must plead or allege the date, time and place of the alleged fraud or
otherwise inject precision or some measure of substantiation into a fraud allegation.” Id. at 200.
Here, McCann refers to four specific emails in which Zinman sought and was granted disability
leave, a letter Zinman submitted from his physician describing the nature of his disability, and two
specific instances of Zinman working for his own entity during his disability leave in February 2016.
McCann pleads that these misrepresentations were made knowingly, with the intent that McCann rely on
them, and that McCann did justifiably rely on them to its detriment.1 These allegations are sufficient to
put Zinman on notice of the precise misconduct with which he is charged and to inject some measure of
substantiation into the fraud claim, and, thus, they are sufficient to withstand a motion to dismiss.
D. Zinman’s Motion to Strike Scandalous Allegations
Turning finally to Zinman’s Motion to Strike Scandalous Allegations, Zinman first argues that
McCann’s entire Answer should be stricken from the docket because it contains scandalous and spurious
allegations unrelated to any legal claims or defenses in the case. Specifically, Zinman objects to
McCann including information about his work history – particularly the details of litigation between
Zinman and his prior employer – and asserts that these allegations have no bearing on the instant claims
A court “may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Although a court “‘possesses considerable
discretion in disposing of a motion to strike under Rule 12(f),’ such motions are ‘not favored and usually
will be denied unless the allegations have no possible relation to the controversy and may cause
prejudice to one of the parties, or if the allegations confuse the issues in the case.’” Adams v. Cnty. of
Erie, Pa., 2009 WL 4016636 at *1 (W.D. Pa. Nov. 19, 2009) (internal quotations omitted). Striking
some or all of a pleading is therefore considered “‘a drastic remedy to be resorted to only when required
for the purposes of justice’ and should be used ‘sparingly.’” DeLaCruz v. Piccari Press, 521 F.Supp.2d
424, 428 (E.D. Pa. 2007). To prevail on a motion to strike, the moving party must demonstrate that “the
allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or
Zinman contends that the damages claim in Count I should be stricken for failure to itemize damages “as required by Fed.
R. Civ. P. 9(b).” However, Zinman has pointed to no authority indicating that Rule 9(b) requires damages in a fraud claim to
[that] the allegations confuse the issues.” Id. (citations omitted). Zinman has not met that burden. The
essence of McCann’s counterclaims is that Zinman engaged in a scheme to stage a “sick-out” under the
guise of disability, thereby enabling him to pursue his own personal business activities. If McCann can
establish that Zinman intentionally misrepresented his prior work history when he applied for
employment with McCann, this may provide evidence of such a scheme.
Zinman objects next to McCann attaching documents containing his email address, contact
information, resume, and full employment history as exhibits accessible to the public. McCann has
attached twenty exhibits – Exhibits A to T – to its Answer. Specifically, Exhibit A contains two
documents: first, a letter formally offering Zinman employment at McCann (“Offer Letter”); second, a
document entitled “Employment Agreement,” signed by Zinman (“Employment Agreement”). Exhibit
B is the Vantage Employee Handbook, revised in December 2015 (“Employee Handbook”). Exhibit C
is the 2014 McCann Sales Team Compensation Plan (“Compensation Plan”). Exhibit D is Zinman’s
resume, which includes his professional experience and his home address, telephone number, and
personal email address. Exhibit E is a complaint against Zinman filed by his former employer in 2012.
Exhibits F, G, H, I, J, K, L, N, O, P, Q, S, and T contain emails sent by Zinman to himself and others
while employed by McCann, and contain his personal email address and former work email address.
Exhibit M is a written agreement between a consultant and The Internship Institute (“TII”), which is
alleged by McCann to be Zinman’s own business entity. Exhibit R is a document related to TII, alleged
by McCann to be a logo Zinman created while employed by McCann.
“A copy of a written instrument that is an exhibit to a pleading is part of the pleading for all
purposes.” Fed. R. Civ. P. 10(c). “Exhibits solely containing evidentiary matter, such as depositions, are
not considered ‘written instruments’ under Rule 10(c) and are typically excluded from consideration of
the pleadings.” J.B. Hunt Transport, Inc. v. Liverpool Trucking Co., Inc., 2013 WL 3208586, at *3
(M.D. Pa. 2013); see also Rose v. Bartle, 871 F.2d 331, 340 n.3 (3d Cir. 1989) (“[T]he types of exhibits
incorporated within the pleadings by Rule 10(c) consist largely of documentary evidence, specifically,
contracts, notes, and other ‘writing[s] on which [a party’s] action or defense is based’ . . . . ‘[L]engthy
exhibits containing . . . evidentiary matter should not be attached to the pleadings.’”).
The Offer Letter (Exhibit A), Employment Agreement (Exhibit A), Employee Handbook
(Exhibit B), and Compensation Plan (Exhibit C) are clearly evidence on which McCann’s counterclaims
are based and are appropriately incorporated in the pleadings by Rule 10(c). Exhibits D to T, however,
contain evidentiary matter and their inclusion at the initial pleading stage procedurally “blur[s] the
distinction between summary judgment and dismissal for failure to state a claim upon which relief could
be granted.” Rose, 871 F.2d at 340 n.3. Accordingly, Zinman’s Motion to Strike will be granted with
respect to Exhibits D to T, but denied with respect to Exhibits A to C.
An appropriate Order follows.
Dated: January 30, 2017
BY THE COURT:
/S/WENDY BEETLESTONE, J.
WENDY BEETLESTONE, J.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?