Tyson v. BB&T Corporation
MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Robert E. Payne on 02/21/2017. (walk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
FEB 2 220l7
Cl.ERK. U.S. DISTRICT COURT
WILLIAM L. TYSON,
Civil Case No. 3:16-cv-814
MOTION TO DISMISS (ECF No. 7). For the reasons set forth below,
the motion will be denied.
In the Complaint
alleges a breach of contract in connection with two restricted
based on three separate but alternatively pled claims.
Mot.") challenges the legal sufficiency of Counts II and III of
the Complaint, and requests dismissal of both.
(Def. Mot. 1-2).
In evaluating the Defendant's Motion,
the Court accepts as true
facts in the light most favorable to Tyson. Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
As alleged in the Complaint,
employed by BB&T
Manager of Capital Markets from 1997 until 2016.
, S) .
Towards the end of his employement, Tyson and BB&T entered into
two "substantially identical" RSAs. 1 (Compl. , 6). The first RSA
was dated February 24,
BB&T common stock;
and awarded Tyson 981 shares of
the second RSA was dated February 24,
and awarded Tyson 3, 188
shares of BB&T common stock.
RSA provided that
stock award would vest
second RSA provided that its award would vest in three equal
on February 24 of 2016, 2017, and 2018. Id.
The RSAs purportedly provided that,
if Tyson were to quit
or resign from his position, the stock awards would continue to
vest pursuant to their original vesting schedule unless Tyson
BB&T attached the RSAs to its motion to dismiss; however, in
response to Tyson's conclusory objections based on authenticity,
BB&T conceded that the Court could rule "without any reference
to the RSA Agreements, because all of the pertinent provisions
of the RSA Agreements are included among the allegations in the
Complaint." (Def. Reply 5-6). The Court will therefore refrain
from deciding the issues of authenticity raised in the parties'
briefs, and limit its inquiry to the four corners of the
gained new employment with a
"competitor of BB&T or any of its
, 8) . The determination of whether any of
Tyson's subsequent employers constituted a
"competitor" was to
be made in the sole and unreviewable discretion of
Administrator, " defined as the BB&T Board of Directors,
so designated, the Board's Compensation Committee.
"involuntarily and without cause."
the RSAs provided that the stock awards would
without cause on or about December 20,
, 10). He
further alleges that he entered into a separation agreement with
employment would effectively terminate no later than February 5,
, 10) .
lump-sum severance payment, Tyson agreed to, among other things,
"release of all
related to his employment with BB&T
he was "assured" by BB&T Securities that his RSAs
would be vested in full without any restrictions.
(Compl. , 11).
At that time, he had received only the first one-third portion
of the stock award set out in the first RSA. Id.
initially provided "effective termination" date), BB&T presented
Tyson with an amended separation agreement,
employment to February 29,
which extended his
, 12). Then, on March
1, 2016, Tyson received an offer of employment by BB&T Scott &
Nevertheless, Tyson received the severance called for under the
purportedly voided agreement. Id.
Sometime after his
began with BB&T Scott and
Tyson became aware that "BB&T had reneged on its
termination," and had instead vested only the portions due under
the RSAs as if he had remained continuously employed by BB&T.
, 14) .
Effective May 1,
Tyson resigned from his
employment, and took a new position with Fifth Third Bank as a
Senior Managing Director.
notified Tyson that he had forfeited the outstanding portions of
by joining a
competitor of BB&T Securities.
Fifth Third Bank was a competitor was made by someone other than
the Board of Directors or Compensation Committee.
termination, the unvested shares promised in the RSAs were worth
in excess of
In terms of current
the value of
forfeited stock still exceeds $90,000.00. Id.
Based on the facts alleged in the Complaint, Tyson asserts
three alternative claims for relief. Count I seeks in excess of
for breach of
contract on the
terminated on February 5,
and that BB&T' s obligation was
unaffected by the severance agreements.
23). Count II
breached the RSAs when it wrongfully declared the forfeiture of
the outstanding stock awards in response to Tyson's employment
with Fifth Third Bank.
and in the
alternative to Counts I and II, Count III seeks both declaratory
and injunctive relief.
(Compl. ,, 34-43). Specifically, it seeks
an order that the provisions of the RSAs restricting employment
are overbroad and unenforceable as against public policy,
granting specific performance of the RSAs-i.e, an order granting
Tyson 2,453 shares of unrestricted BB&T common stock. Id.
In response to these allegations, BB&T CORPORATION'S MOTION
II and III under Fed.
supporting memoranda (ECF No. 8)
seeks dismissal of Counts
("Def. Memo"), BB&T argues that
Tyson has failed to demonstrate an entitlement to the $100, 000
in damages alleged in Count II, and otherwise failed to satisfy
Tyson has filed a MEMORANDUM IN
and BB&T has filed a reply
("Def. Reply"). The motion is now ripe.
A motion to dismiss under to Fed. R. Civ. P. 12(b) (6) tests
the legal sufficiency of the complaint, assuming that the facts
alleged are true.
Francis v. Giacomelli, 588 F.3d 186, 192 (4th
Cir. 2009). To survive such a motion, the Complaint must provide
"only a short and plain statement of the claim showing that the
pleader is entitled to relief,
in order to give the defendant
the . . . claim
sso U.S. S44, SSS
which it rests." Bell Atl. Corp. v. Twombly,
the elements of a
cause of action will not do." Twombly, SSO U.S. at SSS. Instead,
a complaint must contain "sufficient factual matter, accepted as
such that it allows the "court to draw the reasonable
alleged." Ashcroft v.
Twombly, sso U.S. at S70).
recovery is not
required to avoid dismissal.
motion to dismiss under Rule 12 (b) (6)
"invites an inquiry into
potential defenses to the claims set forth therein." Brooks v.
City of Winston-Salem, N.C.,
8S F.3d 178,
(4th Cir. 1996).
Indeed, a "well-pleaded complaint may proceed even if it strikes
a savvy judge that actual proof of those facts is improbable,
and that a recovery is very remote and unlikely." Twombly,
U.S. at SS6 (internal quotation omitted).
Counts II and III of Tyson's Complaint on the grounds that those
counts fail to state a claim upon which relief can be granted.
For the reasons set forth below, BB&T's Motion will be denied.
Count II: Breach of Contract
Count II of the Complaint is pled in the alternative to
1 27) . In the event that the Court does not
find that Tyson was entitled to the full stock award due upon
his alleged involuntary termination, Tyson alleges that the RSAs
portion of the
stock award forfeit
with Fifth Third Bank.
11 29-31). Under North Carolina
Tyson has plausibly stated a
claim upon which relief
BB&T' s motion to dismiss will be denied as
to Count II of the Complaint.
BB&T argues that Count II fails to state a claim because,
even if the facts were true,
Tyson "would be entitled only to
have his Awards continue to vest"
schedule in the RSAs.
"seek [ ing]
(Def. Memo. 8-9). Because the next vesting
as provided by the vesting
[and so] musts be dismissed." Id. at 9.
the doctrine of anticipatory repudiation,
provides a cause of action for breach of contract when one party
to a contract unequivocally repudiates any further obligations
under the contract. 2 Pappas v. Crist, 223 N.C. 265, 268 (1943).
Accepting the facts alleged in the Complaint as true,
is clear that Tyson has pled a claim for anticipatory breach of
contract sufficient to withstand a motion to dismiss under Rule
"forfeited" any remaining rights in the unvested portions of the
and further alleges that such a declaration was
statements amount to anticipatory repudiation of the contracts.
See Edwards v.
Proctor, 173 N.C.
see also Pl.
Resp. at 5-7. Under North Carolina law, Tyson was thus entitled
to sue for breach,
notwithstanding the fact that the time for
performance is the only possible remedy available to Tyson if he
were to prevail on Count II. To the contrary, in North Carolina,
"[s] pecif ic performance is available to a party only if that
party has alleged and proven that he has performed his
under the contract and that his remedy at law is
inadequate." Cavenaugh v. Cavenaugh, 317 N.C. 652, 656-57(1986)
performance (i.e., vesting of the stock award) has yet to occur. 3
BB&T' s motion to dismiss will therefore be denied as to
Count III: Declaratory Judgment
Count III of the complaint is pled in the alternative to
Counts I and II.
34). It seeks a declaratory judgment
invalidating the provisions in the RSAs that trigger forfeiture
claim on the
provision in the Restricted Stock Award Agreements.a
alternative pleading, BB&T's motion will be denied.
The Federal Rules of Civil Procedure specifically provide
for alternative and even inconsistent pleading:
Alternative Statements of a Claim or Defense. A party
may set out two or more statements of a claim or
defense alternatively or hypothetically, either in a
single count or defense or in separate ones. If a
Rather than exposing a defect in Tyson's claim, BB&T's
arguments merely highlight the potential difficulty in assessing
damages for the alleged breach at trial. See Restatement (First)
of Contracts § 338 (1932) ("If trial is reached before the time
fixed for performance has arrived, it may be a little harder to
apply the rules of damages to the case, for the value of the
promised performance and the extent of future harm must be
reached by prediction.")
party makes alternative statements, the pleading
sufficient if any one of them is sufficient.
Inconsistent Claims or Defenses. A party may state as
many separate claims or defenses as it has, regardless
declaratory judgment in the alternative to his claims for breach
In doing so,
he has plausibly stated a claim upon
which relief could be granted.
argues that the fact that Count III has been plead "in
to Counts I
and II does not change the fact
that Plaintiff "is truly seeking only a remedy for alleged past
pleading. Although it is true that a declaratory judgment under
Count III would be inappropriate if Tyson were to prevail under
Count I, the Court does not analyze the sufficiency of Count III
assuming that the allegations supporting the alternative counts
independently under the well-settled definitions of the "case or
If Count III meets this requirement,
alternative to other, factually inconsistent claims. See Fed. R.
Civ. P. S(d).
definite and concrete,
touching the legal relations of parties
having adverse legal interests." Aetna Life Ins. Co. v. Haworth,
300 U.S . .227,
(1937). The controversy must be "real and
substantial, 11 "admitting of specific relief through a decree of
law would be upon a
see also White v.
913 F . .2d 165,
Nat 1 l
between parties having adverse
immediacy and realty to warrant the issuance of a declaratory
judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 31.2
U.S. 270, .273 (1941).
test to Count
clear that Tyson has sufficiently pled his claim for declaratory
justified by the letter of the "competition" provisions in the
Tyson seeks a declaratory judgment that those provisions
(Compl. 11 37-41). Declaratory judgment
occurred does not render it non-justiciable. See Medimmune, Inc.
v. Genentech, Inc., 549 U.S. 118 (2007).
question whether a
declaratory judgment action could lie in a
contract suit where one party continued to pay as required by
ruling that a
controversy did exist,
controversy requirement was "satisfied if petitioner had taken
the final step of refusing to make [the contractually-obligated]
contemplated by the
Supreme Court in Medimmune mirror those alleged in this case.
The dispute in this case centers around the interpretation
and application of several provisions in a contract between BB&T
in contrast to Medimmune,
final step" of repudiating the contract and declaring its intent
not to make any further payment to Tyson.
Id. at 127. Moreover,
BB&T has done so based on its belief that Tyson has violated the
anti-competition restrictions set forth in the RSAs. Under such
judgment declaring those same anti-competition
provisions invalid would conclusively resolve a live, immediate,
and substantial dispute between the parties. Moreover,
decree would by its terms resolve a present,
for declaratory judgment actions,
it is not otherwise rendered non-justiciable simply because it
has been plead in the alternative to Counts I
motion will therefore be denied.
For the reasons set forth above, BB&T CORPORATION'S MOTION
TO DISMISS (ECF No. 7) will be denied.
It is so ORDERED.
Robert E. Payne
Senior United States District Judge
Date: February~' 2017
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