Bloom v. The Library Corporation et al

Filing 37

MEMORANDUM OPINION AND ORDER Granting 25 Motion Pursuant to Federal Rule of Civil Procedure 56(d) and Denying 21 Motion for Partial Summary Judgment. Signed by Chief Judge Gina M. Groh on 8/10/2015. (cmd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
JOSHUA BLOOM,
Plaintiff,
v.

CIVIL ACTION NO.: 3:15-CV-11
(GROH)

THE LIBRARY CORPORATION
and ANNETTE MURPHY,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 56(d)
AND DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT
Currently pending before the Court is Plaintiff Joshua Bloom’s Motion Pursuant to
Federal Rule of Civil Procedure 56(d) [ECF No. 25], filed on May 26, 2015. Also before the
Court is a Motion for Partial Summary Judgment [ECF No. 21], filed by Defendants Annette
Murphy and the Library Corporation (“TLC”) on April 30, 2015. Bloom moves the Court to
grant appropriate relief under Rule 56(d), which allows the Court to defer consideration of
or to deny a pending motion when a nonmovant shows that he cannot present facts
essential to justify its opposition. For the following reasons, the Court GRANTS Bloom’s
motion for relief and accordingly orders that the Defendants’ motion is DENIED.
I. Background
Bloom filed his original complaint against Murphy and TLC in the Circuit Court of
Berkeley County, West Virginia, on November 7, 2014. In that complaint, Bloom alleged
that he entered into an employment agreement with TLC in early 2007 and, in reliance

upon that agreement, he and his wife resigned from their jobs and moved from New York
to West Virginia, where they purchased a home. Bloom averred that he performed well in
his role as TLC’s chief technology officer and contributed to TLC’s success during his
approximately seven years with the company. The basis for the instant lawsuit is a dispute
concerning Bloom’s termination from his role at TLC. Bloom alleged that on November 8,
2013, Murphy–TLC’s co-founder, president, chief executive officer (“CEO”) and chairman
of the board–informed him that he was fired. Bloom alleged that he was fired without
cause. In his complaint, Bloom asserted that TLC and Murphy committed violations of the
West Virginia Wage Payment and Collection Act (“WPCA”), and were also liable for breach
of contract and intentional infliction of emotional distress.
The Defendants were not served with a copy of the original complaint.

On

November 26, 2014, Bloom filed an amended complaint, which reiterated the same
allegations made in the original complaint, but which included as an attachment an
unsigned employment agreement. Bloom avers that the attached agreement represents
the employment agreement he entered into with TLC in early 2007. The Defendants
contend that the unsigned document is not a binding agreement.
Murphy filed a notice of removal with this Court on February 10, 2015, pursuant to
28 U.S.C. § 1441. Murphy alleged that this Court possessed valid diversity of citizenship
jurisdiction under 28 U.S.C. § 1332, because Bloom, a citizen of Pennsylvania, and
Murphy, a citizen of a Florida, were not citizens of the same state, and because the amount
in controversy exceeded the sum of $75,000. See 28 U.S.C. § 1332(a). Murphy further
argued that, although her Co-Defendant, TLC, was then and is now a Maryland corporation
with a principal place of business in West Virginia, and is therefore considered to be a
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citizen of both Maryland and West Virginia, the forum defendant rule did not preclude
Murphy’s removal of this case because at the time of removal TLC had not been properly
joined and served as a defendant under § 1441(b)(2). Bloom contested Murphy’s removal
by way of a motion to remand filed on February 25, 2015. The Court denied the motion to
remand, finding that Murphy was a Florida citizen for purposes of diversity jurisdiction and
that the forum defendant rule did not preclude removal under § 1441(b)(2) as TLC had not
been properly joined and served at the time of removal.
Now before the Court are two motions concerning the relief Bloom is seeking under
the WPCA. See W. Va. Code § 21-5-4 to -18. The WPCA is “remedial legislation designed
to protect working people and assist them in the collection of compensation wrongly
withheld.” Citynet, LLC v. Toney, 772 S.E.2d 36, 49 (W. Va. 2015) (internal quotation
marks and citations omitted). In Count 1 of his amended complaint, Bloom alleged that
TLC–and Murphy, as TLC’s officer–violated the WPCA by failing to pay him the termination
benefit provided in the alleged employment agreement within an appropriate time period.1
BIoom alleged that his termination benefit constituted “accrued wages and/or fringe benefits
capable of calculation and payable directly to Plaintiff.” On April 30, 2015, the Defendants
moved for partial summary judgment, asking this Court to “find that severance payments
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Bloom alleged that section 21-5-4.b of the WPCA required TLC pay him in full within seventy-two
hours. The WPCA has been amended multiple times in the past several years. An amendment that took
effect on June 12, 2013, did away with the seventy-two hour requirement and implemented a requirement that
final wages be paid in full no later than either the next regular payday or within four business days, whichever
comes first. S.B. 355, 81st Leg., Reg. Sess. (W. Va. 2013). The most recent amendment to the WPCA, which
took effect on June 11, 2015, further modified the time period in which final wages must be paid and reduced
the liquidated damages penalty under the WPCA from three times the amount owed to two times the amount
owed. S.B. 12, 82nd Leg., Reg. Sess. (W. Va. 2015). The alleged employment agreement between Bloom
and TLC provides that an employee terminated without cause “shall receive a payment equal to one year of
base compensation . . . within 30 days following the date of termination of employment.” Relevant to the issue
now before the Court, the WPCA’s definitions of “wages” and “fringe benefits” have remained the same. See
W. Va. Code § 21-5-1(c), (l).

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are not wages” as defined by the WPCA and that Bloom is unable to recover under Count
1 of his amended complaint. Bloom responded in opposition to that motion on May 21,
2015. Bloom argues that his termination benefit was intended to be compensation for work
performed and constituted a “fringe benefit” and “wages” under the WPCA. Bloom further
argues that genuine issues of material fact exist concerning the terms of the parties
employment agreement, in large part because the Defendants contest the validity of the
unsigned agreement attached to Bloom’s amended complaint while other evidence in the
record contains references to a contract concerning Bloom’s employment with TLC. Bloom
contends that these issues create multiple genuine issues of material fact sufficient to
defeat summary judgment at this early stage in the proceedings. The Defendants replied
in support of their motion on May 29, 2015.
On May 26, 2015, while the motion for partial summary judgment was pending,
Bloom filed a motion for relief under Rule 56(d), in which he requests that this court either
deny or defer ruling on the motion for partial summary judgment. Attached to the motion
is a declaration executed by Bloom’s attorney, which articulates the specific reasons
discovery is necessary for Bloom to present facts essential to justify his opposition to
summary judgment. The Defendants filed a response to the motion for relief on June 9,
2015. The Defendants argue that their motion for partial summary judgment presents a
question of statutory interpretation, which requires no fact-finding and can therefore be
ruled upon prior to the close of discovery. In his reply brief, Bloom reiterates his argument
that discovery is necessary before the Court can address the issues raised by the
Defendants’ motion.

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II. Applicable Law
Summary judgment is appropriate under Federal Rule of Civil Procedure 56 when
there is no genuine issue as to any material fact and the moving party is entitled to
judgment in its favor as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict
for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, the Court must conduct “the threshold inquiry of determining whether there is the
need for a trial–whether, in other words, there are any genuine factual issues that properly
can be resolved only by a finder of fact because they may reasonably be resolved in favor
of either party.” Id. at 250.
The party opposing summary judgment “must do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). That is, once the movant has met its burden to
show an absence of material fact, the party opposing summary judgment must then come
forward with affidavits or other evidence demonstrating there is indeed a genuine issue for
trial. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 323-35; Anderson, 477 U.S. at 248. “If the
evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249 (citations omitted).
Generally, a court should only grant summary judgment “after adequate time for
discovery.” See Celotex, 477 U.S. at 322. “Summary judgment before discovery forces
the non-moving party into a fencing match without a sword or mask.” McCray v. Md. Dep’t
of Transp., 741 F.3d 480, 483 (4th Cir. 2014). An exception to this principle applies when
a motion presents “purely legal questions” which can be resolved “at any time without any
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factual determinations, and thus may be decided prior to the conclusion of discovery.”
Negri v. Nationwide Mut. Ins. Co., Civil Action No. 5:11-CV-3, 2011 WL 5041214, at *5
(N.D.W. Va. Oct. 24, 2011). Under Federal Rule of Civil Procedure 56(d), a nonmovant
faced with contesting a motion for summary judgment may seek relief when certain facts
are unavailable to him. Rule 56(d) provides as follows:
If a nonmovant shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
The declaration or affidavit provided by the nonmovant in support of a Rule 56(d) motion
must specify the reasons necessitating additional discovery or otherwise notify the district
court as to which specific facts are yet to be discovered. See McCray, 741 F.3d at 484.
A motion for summary judgment should be denied when “the nonmoving party has
not had the opportunity to discover information that is essential to his opposition.” Harrods
Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Anderson,
477 U.S. at 250 n.5). Allowing sufficient time for discovery is “considered especially
important when the relevant facts are exclusively in the control of the opposing party.” Id.
at 246-47 (quoting 10B Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal
Practice and Procedure § 2741 (3d ed. 1998)). Under these principles, a nonmovant’s
request to conduct discovery under Rule 56 is “broadly favored and should be liberally
granted.” Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264,
281 (4th Cir. 2013) (quoting Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)).
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III. Discussion
As an initial matter, the Court must touch upon the legal argument raised in the
Defendants’ motion for partial summary judgment, as it is intertwined with Bloom’s motion
under Rule 56(d). The Defendants move this Court to “hold that severance payments are
not wages” under the WPCA. In support, the Defendants rely heavily on a 2010 decision
issued by the Circuit Court of Berkeley County, West Virginia, which reached that
conclusion. See Lehman v. United Bank, Inc., No. 09-CV-616, 2010 WL 8947775 (W. Va.
Cir. Ct. 2010) (“[S]everance pay does not meet the definition of wages under West Virginia
law, and need not be paid within 72 hours of termination.”).

At this stage of the

proceedings in the instant case, however, it would be inappropriate to issue such a ruling,
and the Court makes no finding concerning the conclusions of the Lehman court. Under
these circumstances, were the Court to grant the Defendants’ motion without considering
any of the facts of this case, the result would be akin to an advisory opinion. The
Defendants seek an order affirming that severance benefits in general are not wages under
the WPCA. But as to the specific claim raised in Bloom’s amended complaint, the record
at present provides no clarity as to what, if any, benefits Bloom was entitled to under the
parties’ employment agreement. This is problematic, as the specific provisions concerning
fringe benefits contained in an applicable employment policy determine what benefits are
included in the WPCA’s definition of “wages.” Meadows v. Wal-Mart Stores, Inc., 530
S.E.2d 676, 680 (W. Va. 1999).
Although the unsigned employment agreement discusses termination benefits and
fringe benefits in separate sections, Bloom’s amended complaint alleges that his
termination benefit constituted “an accrued fringe benefit” and he has produced an affidavit
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in which he attested that it was his understanding the termination benefit was compensation
for his employment that had already vested at the time of his termination. The Supreme
Court of Appeals of West Virginia holds that the terms of the WPCA must be construed
liberally, in accordance with the remedial nature of the legislation, to best give effect to its
purpose of protecting West Virginia employees. See Citynet, 772 S.E.2d at 49. The
WPCA’s definition of “wages” includes certain fringe benefits. Under section 21-5-1(c) of
the WPCA, “the term ‘wages’ shall . . . include then accrued fringe benefits capable of
calculation and payable directly to an employee: Provided, That nothing herein contained
shall require fringe benefits to be calculated contrary to any agreement between an
employer and his or her employees which does not contradict the provisions of this article.”
Fringe benefits are defined as being “any benefit provided an employee or group of
employees by an employer, or which is required by law, and includes regular vacation,
graduated vacation, floating vacation, holidays, sick leave, personal leave, production
incentive bonuses, sickness and accident benefits and benefits relating to medical and
pension coverage.” W. Va. Code § 21-5-1(l). The Supreme Court of Appeals of West
Virginia has explicitly stated that the use of the word “includes” as applied to the abovereferenced examples of fringe benefits indicates that the list found in section 21-5-1(l) was
not intended to be exclusive. Citynet, 772 S.E.2d at 50. In determining whether a fringe
benefit has “then accrued” under section 21-5-1(c), “accrued” can be understood to mean
“vested.” See id. (citing Meadows, 530 S.E.2d at 688). As the concept of vesting is
“concerned with expressly enumerated conditions or requirements” that must be met before
a benefit becomes an enforceable right, “the payment of fringe benefits can only be
governed by the terms of employment found in employment policies promulgated by
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employers and agreed to by employees.” Meadows, 530 S.E.2d at 688-89. Therefore,
whether a specific fringe benefit meets the definition of wages under section 21-5-1(c) is
“determined by the terms of employment and not by the provisions of W. Va. Code § 21-51(c).” Id. at 689; see also Spano v. Metro. Life Ins. Co., Civil Action No. 2:09-CV-01243,
2011 WL 2180657, at *3 (S.D.W. Va. June 2, 2011) (“In WPCA cases, courts must consider
the specific employment agreement.”).2
Under these circumstances, the Court is compelled to grant Bloom’s Rule 56(d)
motion and to allow discovery to proceed in normal course. The terms of the parties’
employment agreement–if one existed–are essential to determining the nature of the
alleged termination benefit and the applicability of the WPCA to Bloom’s claim, and thus
are essential to Bloom’s ability to justify his opposition to summary judgment. As stated,
the Defendants contest the validity of the unsigned employment agreement attached to
Bloom’s amended complaint. But the record already contains multiple emails referencing
an employment contract between Bloom and TLC. The prospect of the existence of a
different employment agreement alone justifies granting Bloom’s Rule 56(d) motion and
allowing for discovery to proceed.3 It would be premature for the Court to grant summary

2

The Spano court concluded its analysis of the WPCA by finding that a plaintiff was not owed any
wages relating to commissions he earned after his termination, as “it is impossible to owe wages to an
employee before the wages were earned.” 2011 WL 2180657, at *3. As with the Defendants’ reliance on
Lehman, the Court again stresses that it does not reach this step of a WPCA analysis in this Order. Before
the Court can hold that Bloom’s termination benefit, as a severance payment, is not “wages” in a purely legal
sense, the Court must have sufficient evidence from which it can determine that the termination benefit is in
fact a severance payment.
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Another justification is found in the parties’ dispute over whether Bloom was fired for cause or without
cause. In Clay v. Consol Pennsylvania Coal Co., 955 F. Supp. 2d 588, 599 (N.D.W. Va. 2013), a Northern
District of West Virginia court held that it could not grant the defendants’ motion to dismiss despite the
defendants’ argument that a termination benefit did not accrue to the plaintiff, as the plaintiff had sufficiently
plead that he was fired without cause and that his termination benefit was a fringe benefit which accrued under
the parties’ employment agreement.

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judgment, as it is unclear whether an employment agreement existed, and, if one did exist,
what the terms applicable to Bloom’s termination benefit were.
Bloom’s attorney adequately addresses these issues in the declaration attached to
Bloom’s Rule 56(d) motion. The declaration provides that “[m]aterial facts about the terms
of the parties’ contract or understanding, from Defendants’ perspective, would be learned
in discovery.” Additionally, Bloom’s attorney avers that other TLC employees received
severance payments, and that facts about these payments–whether they were contractual
or issued as a matter of company policy–could be revealed during discovery. Finally,
Bloom’s attorney asserts that the purpose of the termination benefit is important to the
Court’s understanding, as the benefit may have been intended as compensation for
services rendered. Under West Virginia law as detailed above, facts relating to these
issues are essential to Bloom’s ability to justify his opposition to summary judgment.
Accordingly, the Court grants Bloom’s requested relief under Rule 56(d) and denies the
Defendants’ motion.
IV. Conclusion
For the foregoing reasons, the Court ORDERS that the Plaintiff’s Motion Pursuant
to Federal Rule of Civil Procedure 56(d) [ECF No. 25] is GRANTED. The Court further
ORDERS that the Defendants’ Motion for Partial Summary Judgment [ECF No. 21] is
DENIED.
The Clerk is DIRECTED to transmit copies of this Order to all counsel of record
herein.

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DATED: August 10, 2015

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