O'Grady v. BlueCrest Capital Management LLP , 646 F. App'x 2 ( 2016 )

15-2240-cv
O’Grady v. BlueCrest Capital Management LLP
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 14th day of April, two thousand sixteen.
PRESENT: ROBERT D. SACK,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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NICHOLAS L. O’GRADY,
Plaintiff-Appellant,
v. No. 15-2240-cv
BLUECREST CAPITAL MANAGEMENT LLP,
Defendant-Appellee,
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APPEARING FOR APPELLANT: ERIC R. STERN, Sack & Sack, LLP, New York,
New York.
APPEARING FOR APPELLEE: ANTHONY P. ALDEN (Maya D. Cater, Quinn
Emanuel Urquhart & Sullivan, LLP, New York,
New York, on the brief), Quinn Emanuel
Urquhart & Sullivan, LLP, Los Angeles,
California.
1
Appeal from a judgment of the United States District Court for the Southern District
of New York (Sidney H. Stein, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on June 17, 2015, is AFFIRMED.
In this diversity action, plaintiff Nicholas L. O’Grady sued his former employer
BlueCrest Capital Management LLP (“BlueCrest”) for failing, upon his termination, to
make bonus and severance payments pursuant to his written employment agreement (the
“Agreement”). O’Grady now appeals from the dismissal of his complaint for failure
adequately to plead breach of contract and violation of New York labor law.1 We review
de novo the dismissal of a complaint under Fed. R. Civ. P. 12(b)(6), “accepting all factual
allegations as true and drawing all reasonable inferences in favor of the plaintiff,” Orlander
v. Staples, Inc., 802 F.3d 289, 294 n.4 (2d Cir. 2015), in determining whether he states a
claim for relief that is “plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).2 In doing so, we assume
the parties’ familiarity with the facts and record of prior proceedings, which we reference
only as necessary to explain our decision to affirm substantially for the reasons stated by
1
Because O’Grady does not challenge the dismissal of his claims for breach of implied
contract, quantum meruit, promissory estoppel, breach of the duty of good faith and fair
dealing, and an accounting, we deem them abandoned. See Jackler v. Byrne, 658 F.3d
225, 233 (2d Cir. 2011).
2
The Twombly/Iqbal pleading standard supplanted the “no set of facts” standard set forth
in Conley v. Gibson, 355 U.S. 41 (1957), on which O’Grady appears to rely in his brief.
2
the district court in its thorough and well-reasoned opinion and order. See O’Grady v.
BlueCrest Capital Mgmt. LLP, 111 F. Supp. 3d 494 (S.D.N.Y. 2015).
Paragraph 3 of the Agreement unambiguously states that “[a]ny bonus program
established and awards made pursuant thereto by the Company will be subject to the
Company’s sole and absolute discretion.” J.A. 30 (emphasis added). This language
precludes O’Grady from claiming that nonpayment of bonus was a breach of contract.
See Namad v. Salomon Inc., 74 N.Y.2d 751, 753, 545 N.Y.S.2d 79, 80 (1989) (upholding
dismissal of challenge to amount of bonus where contract unambiguously left matter to
discretion of management); Kaplan v. Capital Co. of Am. LLC, 298 A.D.2d 110, 111, 747
N.Y.S.2d 504, 505–06 (1st Dep’t 2002) (holding that plaintiff had no claim to bonus
compensation because company policy clearly stated that “bonuses were to be paid solely
at the company’s discretion”); see also Bessemer Tr. Co., N.A. v. Branin, 618 F.3d 76, 92
(2d Cir. 2010). Insofar as O’Grady agreed further that he “will not be eligible to be paid
any bonus if at any time prior to the date of any payment . . . [his] employment has been
terminated,” J.A. 30, his June 4, 2014 termination independently precludes his bonus
claim. See Truelove v. Ne. Capital & Advisory, Inc., 95 N.Y.2d 220, 225, 715 N.Y.S.2d
366, 369 (2000) (holding plaintiff not entitled to receive remaining quarterly awards where
agreement “explicitly predicated the continuation of bonus payments upon the recipient’s
continued employment status” and plaintiff resigned after receiving first payment); see
also Karmilowicz v. Hartford Fin. Servs. Grp., Inc., 494 F. App’x 153, 157 (2d Cir. 2012).
3
The failure of O’Grady’s contract claim also necessarily defeats his wage claim
under New York Labor Law § 193. See Tierney v. Capricorn Inv’rs, L.P., 189 A.D.2d
629, 632, 592 N.Y.S.2d 700, 703 (1st Dep’t 1993) (holding that plaintiff “cannot assert a
statutory claim for wages under the Labor Law if he has no enforceable contractual right to
those wages” (quoted in Karmilowicz v. Hartford Fin. Servs. Grp., Inc., 494 F. App’x at
158)); compare Truelove v. Ne. Capital & Advisory, Inc., 95 N.Y.2d at 224, 715 N.Y.S.2d
at 368 (holding that discretionary bonus subject to non-reviewable determination of
employer “take[s] plaintiff’s bonus payments out of the statutory definition of wages”),
with Ryan v. Kellogg Partners Institutional Servs., 19 N.Y.3d 1, 16, 945 N.Y.S.2d 593, 602
(2012) (holding that “guaranteed and non-discretionary” bonus, though linked to
performance, amounted to “wages” under § 193).
In urging otherwise, O’Grady contends that paragraph 3 of the Agreement is
properly construed to afford BlueCrest discretion only to establish a bonus program, not to
make awards thereunder. The argument is defeated by the paragraph’s express statement
that “[a]ny bonus program established and awards made pursuant thereto by the Company
will be subject to the Company’s sole and absolute discretion.” J.A. 30 (emphasis added).
See Namad v. Salomon Inc., 74 N.Y.2d at 753, 545 N.Y.S.2d at 80 (rejecting interpretation
that “would render the [] sentence vesting defendants with complete discretion a nullity”);
see also Orlander v. Staples, Inc., 802 F.3d at 295 (“[A] contract should be construed so as
to give full meaning and effect to all of its provisions.” (internal quotation marks omitted));
In re AMR Corp., 730 F.3d 88, 99 (2d Cir. 2013) (“Under New York law, a specific
4
provision governs the circumstance to which it is directed, even in the face of a more
general provision.” (alteration and internal quotation marks omitted)). Thus, even if
O’Grady were eligible to participate in a bonus program under the Agreement, he was not
entitled to receive a bonus.
Because the Agreement is unambiguous as to bonuses and represents the “sole and
entire understanding” between the parties, J.A. 37, O’Grady cannot rely on the “Equities
Compensation Model-Illustrative Guidelines” as evidence that BlueCrest agreed to an 18%
commission payment—even assuming the truth of his allegations. See W.W.W. Assocs.,
Inc. v. Giancontieri, 77 N.Y.2d 157, 163, 565 N.Y.S.2d 440, 443 (1990) (“It is well settled
that extrinsic and parol evidence is not admissible to create an ambiguity in a written
agreement which is complete and clear and unambiguous upon its face.” (internal
quotation marks omitted)); Marine Midland Bank-S. v. Thurlow, 53 N.Y.2d 381, 387, 442
N.Y.S.2d 417, 419 (1981) (explaining that parol evidence rule “operates to exclude
evidence of all prior or contemporaneous negotiations between the parties offered to
contradict or modify the terms of their writing”). 3 O’Grady’s claim that the parties
ratified such an agreement through a “course of conduct” consisting of payment of his
2013 performance bonus, or a January 17, 2014 email referencing payment “guarantees,”
J.A. 112, fails for the same reason. See Lockheed Martin Corp. v. Retail Holdings, N.V.,
3
Regardless, the Guidelines do not provide the support O’Grady suggests. See J.A. 98
(“No reliance should be placed on any information or representation contained within this
document, which is by way of example only and no liability of any type will be incurred
with regard to such information or representation . . . .”).
5
639 F.3d 63, 71 (2d Cir. 2011) (“Because the contract is unambiguous, it was error for the
district court to consider extrinsic evidence of the parties’ post-contract conduct.”); see
also, e.g., Brennan v. J.P. Morgan Secs., Inc., 801 N.Y.S.2d 230, 2004 WL 3314910, at *3
(N.Y. Sup. Ct. 2004) (unpublished table decision) (“[T]he fact that an employee receives
bonuses throughout an employment relationship does not vitiate the employer’s right to
retain full discretion in determining the amount, if any, of an employee’s bonus.”).
Nor has O’Grady plausibly alleged that he executed “a valid and irrevocable release
agreement in a form acceptable to the Company,” J.A. 31, a condition precedent to
BlueCrest’s severance obligation under the Agreement. See Oppenheimer & Co. v.
Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 690, 636 N.Y.S.2d 734, 737 (1995)
(stating that condition precedent must occur “before a duty to perform a promise in the
agreement arises” (internal quotation marks omitted)). While O’Grady contends that his
performance was excused because BlueCrest “stymied” his effort to do so, he made no
such allegation in his complaint, see Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d
Cir. 1998) (holding that this failure results in waiver), nor does he challenge on appeal the
district court’s determination that further amendment would be futile, see O’Grady v.
BlueCrest Capital Mgmt. LLP, 111 F. Supp. 3d at 503–04 (“‘Where a promisor has no duty
to bring about the condition precedent to his promise,’ the ‘promisor’s frustration of the
occurrence of the condition,’ by passive conduct, does not occasion a waiver of the
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condition.” (quoting In re Bankers Tr. Co., 450 F.3d 121, 128 & n.4 (2d Cir. 2006))).4
Thus, his severance-based claims fail on the merits.
* * * *
We have considered O’Grady’s remaining arguments and conclude that they are
without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
4
O’Grady argues for the first time in his reply brief that he is excused from pleading
satisfaction of the condition precedent because BlueCrest disputes that he was terminated
without cause. We generally will not entertain an argument first raised in a reply brief.
See Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 192 (2d Cir.
2015). In any event, BlueCrest’s dispute of these facts is irrelevant because we assume
the truth of O’Grady’s non-conclusory allegations, see Orlander v. Staples, Inc., 802 F.3d
at 294 n.4, and nevertheless conclude that 12(b)(6) dismissal was warranted.
7