Fudali v. Pivotal Corporation ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARJORIE FUDALI,
Plaintiff,
v Civil Action 03-1460 (JMF)
P{VOTAL CORPORATION,
Defendant.
MEMORANDUM OPINION
Currently pending before me is Defendant’s Motion For Partial Summarv
judgment As To The Amount Of Damag§tOr ln The Altemative In Lz``mz``ne To Preclude
Evidence Of Damages In Excess Of A Certain Amount (the "Motion"). For the reasons
stated herein, defendant’s motion is granted in part and denied in part.
I. BACKGROUND
Plaintiff l\/Iarjorie Fudali commenced this action to recover commission payments
she asserts her former employer, Pivotal Corporation ("Pivotal"), owes her. Fudali was
hired by Pivotal in l\/lay 2000 as a Senior Sales Executive. Amended Complaint ("Am.
Compl.") 1111 3-5. Fudali resigned, effective June 4, 2002, when Pivotal failed to pay her
what she believed to be her due commission. Am. Compl. 1111 6, 25. The central dispute
in this case is whether Fudali and Pivotal’s then-Chief Financial Officer, Vince Mifsud,
entered into an oral agreement in August 2001 regarding Fudali’s Fiscal Year 2002
compensation plan. Trial is scheduled to begin on October 22, 2007.
While the central dispute concerns the percentage of revenue to which Fudali is
entitled in commission, the motion before me concerns the arnount of revenue that is
commissionable. Pivotal and Syngenta Crop Protection AG ("Syngenta") entered into a
software licensing and maintenance contract, dated April 25, 2002 (the "Global
Agreement"). PlV-MSJ-6. Pivotal argues that, because Fudali’s employment with
Pivotal was terminated, she is not entitled to commission on any revenue received by
Pivotal after 90 days ofthe Global Agreement. Motion at l0. Pivotal contends that the
amount of revenue received before that time is [REDACTED], and that Fudali’s damages
in this case can be no greater than [REDACTED]. Motion at 9. Though Fudali initially
agreed that her damages in this case could be no greater than [REDACTED], she now
asserts that her damages far exceed this amount because her commission should have
been based not on [REDACTED], but on the full value of the Global Agreement:
[REDACTED]. Plaintiff’ s Supplemental Responses to Defendant’s Interrogatories, at 2-
3 (Dec. 21, 2003); PlV-l\/ISJ-l¢l.
Three issues must be resolved in Pivotal’s favor in order for its motion to be
granted in full. First, Pivotal must be correct, as a matter of law, that it received no more
than [REDACTED] from Syngenta within 90 days of the Global Agreement. Second, the
Compensation Plan‘ must be so unambiguous that there can only be one reasonable
interpretation ~ Pivotal’s - concerning whether payments made by Syngenta and received
by Pivotal after 90 days ofthe Global Agreement are commissionable to Fudali. Finally,
' Pivotal contends that Fudali’s commission is g0vemed by the 2002 Global Sa|es Representative
compensation plan, whereas Fudali believes her commission is governed by the 2002 Fiscal Year Standard
SaIes Executive Compensation Plan. PlV-MSJ-4, PIV-l\/lSJ-S. This dispute need not be resolved here
because the parties agree that the Motion can be decided pursuant to identical language contained in both
plans under the heading "Incentive Compensation Plan FY 2002" ("Compensati0n Plan"). PIV-MSJ-5 at
PlV0032; Motion at l3; Opp. at 2.
the Compensation Plan must be so unambiguous that there can only be one reasonable
interpretation - Pivotal’s - concerning whether the Global Agreement contains "extended
payment tenns."
II. MATERIAL FACTS NOT IN DISPUTE
l. On April 25, 2002, Pivotal and Syngenta entered into the Global Agreement.
PlV-MSj-6. The final signature on this agreement was affixed on May 20, 2002. PIV-
MSj-6 at 27.
2. Under the Global Agreement, Syngenta was to pay Pivotal a total of
[REDACTED] in license fees. Q. at 27. The first payment of[REDACTED] was to be
made no later than 15 days from the date of the agreement, and the second payment of
[REDACTED] was to be made by january 2, 2003. E.
3. The agreement also required Syngenta to purchase [REDACTED] in total
maintenance and support services for existing and additional software licenses, with a
payment schedule extending to january 2, 2006. M. at 32-33.
4. The payments due under the Global Agreement are represented in the
following chart:
Amount l Due j S0urce
License Fees:
[REDACT 6/4/02 PIV-MSj-6 at 27
ED]
[REDACT l/2/03 PIV~MSj-G at 27
ED]
Maintenance Fees:
[REDACT 6/4/02 PlV-MSj-6 at 32
ED]
[REDACT 1/2/03 Piv-MSJ-e 3132
Eo]
[REDACT 1/2/04 Piv-MSJ-a 3132
ED]
[REDACT 1/2/05 PlV-MSj-6 at 32
[REDACT 1/2/06 PlV-l\/lSj-6at33
EDL
Total: H{EDACTEDL
5. On l\/Iarch l5, 2002, Pivotal sent invoice no. 31 10036 to Syngenta for
software license fees in the amount of [REDACTED]. PIV-MSj-7. On March 28, 2002,
Pivotal sent invoice no. 31 10042 to Syngenta for maintenance in the amount of
[REDACTED]. PIV-l\/lSj-S. Payments on these invoices were to be rolled into the
Global Agreement. PlV-MSj-11.
6. The document entitled "'l``ransaction by Customer inquiry Report" shows
entry numbers 31 10036 and 31 10042 with these same amounts, calculated in Euros
([REDACTED] and [REDACTED]). PIV-MSj-10.
7. At the bottom of the page there is an entry labeled "Syngenta paid
31 10036/31 10042," next to the letters "PMT." PlV-l\/lSj-10. This amount, preceded by
a subtraction sign ("-"), is [REDACTED] - the total of entry numbers 3110036 and
31 10042 (the disparity of [REDACTED] is presumably the result of currency rate
fiuctuation). lc_l.
8. The document entitled "Syngenta Commission Calculation Worksheet"
reflects invoices 31 10036 ([REDACTED]) and 3110042 ([REDACTED]) as
commissionable revenue. PlV-MSj-13.
9, A document in Microsoft Business Solutions Great Plains format, entitled
“‘Sales Distribution inquiry Zoom," bears the number 31 10055 next to the words
"Document No." and shows the total amount [REDACTED] ([REDACTED]) as the
"Originating Amount." PiV-MSj-12. This amount is $0.10 less than the full potential
value of the Global Agreement, as represented in the above chart.
10. The document entitled "Transaction by Customer inquiry Report" shows an
entry number 31 10055 with this same amount, [REDACTED]. PiV-MSj-10. At the
bottom of the page there is an entry with this same amount, [REDACTED], next to the
letters “RTN." M. The amount is preceded by a subtraction sign ("-") and above the
number appear the words: "l\/iay Return." i_d. Both entries are dated l\/iarch 28, 2002. id
1 1. The document entitled "Syngenta Commission Calculation Worksheet"
reflects entry 31 10055 as commissionable revenue, with an amount of [REDACTED].
PiV-MSj-13.
12. The document entitled "Transaction by Customer inquiry Report" shows
entries 31 10063 and 31 10064, dated l\/lay 31, 2002, with values of [REDACTED] and
[REDACTED]. PlV-MSj-10. The total value of entries 31 10063 and 3110064 is
[REDACTED], which, after converting to USD, corresponds to the total amount
Syngenta owed pursuant to the Global Agreement, due june 4, 2002 ([REDACTED] in
license fees + [REDACTED] in maintenance = [REDACTED]) (see chart above).
13. The document entitled “Transaction by Customer inquiry Report" contains
an entry labeled "syngenta paid 31 10063/31 1006,"2 next to the letters "Pl\/IT," dated june
21, 2002. PlV-i\/iSj-10 at 2. This amount, preceded by a subtraction sign ("~“‘), is
[REDACTED] - the total of entries 31 10063 and 31 10064 (the disparity of
[REDACTED] is presumably the result of currency rate fiuctuation). Q.
14. The document entitled "Syngenta Commission Calculation Worksheet" does
3 Presumably this second number is a typographical error of"3110064.“
not reflect entries 31 10063 and 31 10064. PiV-MSj-13. There is, however, entry
3110055 with a value of[REDACTED]. PiV-MSj-l3. This amount isjust
[REDACTED]3 different from the commissionable revenue of entries 31 10063 and
3i10064F
15. The document entitled "Transaction by Customer inquiry Report" shows
entries 31 15004 and 31 l5005, dated November 30, 2002, with values of [REDACTED]
and [REDACTED]. PiV-MSj-10. These amounts, after converting to USD, correspond
to the total amount Syngenta owed pursuant to the Global Agreement, due january 2,
2003 ([REDACTED] = [REDACTED]; [REDACTED] = [REDACTED]). (see chart
above).
16. The document entitled "Transaction by Customer inquiry Report" contains
an entry labeled "paid 31 15004/31 15005," next to the letters "PMT," dated january 22,
2003 (payment of[REDACTED]; disparity of[REDACTED] is presumably the result of
currency rate fiuctuation). PiV-MSj-10 at 2,
17. Fudali resigned from Pivotal in l\/iay 2002 with an effective date ofJune 4,
2002 AntC0mpi1q6,2s
III. LEGAL STANDARD
To prevail on a motion for summaryjudgment, a party must establish, on the basis
of the pleadings, depositions, answers to interrogatories and admissions on file, together
with the affidavits, that there is "no genuine issue as to any material fact and that the
3 Pivotal does not explain the [REDACTED] discrepancy, and instead uses [REDACTED] and
[REDACTED] interchangeably. §g, _e_.g¢, Motion at 8; Reply at 8.
4 Syngenta was already paying [REDACTED] for support on existing licenses. PiV-MSj-l 1.
Because this was a pre-existing obligation, this amount was deducted from the commissionable revenue of
moving party is entitled to ajudgment as a matter of law." Fed. R. Civ. P. 56(c). When
ruling on such a motion, the Court views the evidence in the light most favorable to the
non-moving party. Reeves v. Sanderson Plumbing, 530 U.S. 133, 150 (2000). A party
opposing a motion for summary judgment must point to more than just "a scintilla of
evidence" supporting his position; "there must be evidence on which thejury could
reasonably find for the plaintiff." Anderson v. Libertv Lobbv, inc., 477 U.S. 242, 252
(1986). "Ifthe evidence is merely colorable, or is not significantly probative, summary
judgment may be granted." id. at 249-50 (citations omitted).
IV. DISCUSSION
a. 3110055
Fudali attacks a fundamental premise of the lvlotion: Pivotal’s assertion that it
received no more than [REDACTED] from Syngenta under the Global Agreement within
90 days of its enactment. Fudali contends there is a genuine issue of material fact
regarding this amount, and further suggests that the true amount is at least
[REDACTED].
There is no genuine issue of material fact that Pivotal arrived at [REDACTED]
and the amount of revenue commissionable to Fudali in the following manner. First,
Pivotal received [REDACTED] in payments from Syngenta on invoices 31 10036 and
31 10042 on April 24, 2002. PiV-l\/iSj-IO. These payments were "rolled into" the Global
Agreement. PiV-1\/ISj-11. This amount was credited to Fudali as commissionable
revenue, and was entered on the Commission Calculation Worksheet along with the
corresponding invoice numbers 31 10036 and 31 10042. PiV-MSj-13.
entries 31 10063 and 31 10064. Motion at 8. Consequently, Fudali’s commissionable revenue from those
_7_
Next, Pivotal received [REDACTED] in payments from Syngenta on invoices
3110063 and 31 10064 on june 21, 2002. PiV-MSj-10. These payments included
[REDACTED] in maintenance and support payments for licenses pre-dating the Global
Agreement. PiV-i\/lSj-6 at 27, 32; PiV-MSj-11. Deducting [REDACTED] from
[REDACTED], Pivotal credited [REDACTED]S to Fudali as commissionable revenue
from these payments. For an unknown reason, this amount was entered on the
Commission Calculation Worksheet along with the number 31 10055 rather than the
corresponding invoice numbers 31 10063 and 31 10064. PiV-l\/lSj-l3.
This same number, 31 10055, appears in the document entitled "Transaction by
Customer inquiry Report" ("inquiry Report") where it is assigned the value of
[REDACTED], the full potential value of the Global Agreement. PiV-MSj-6 at 27, 32.
Though this entry is similar in appearance to those entries that represent invoices sent to
Syngenta, Pivotal asserts that no such invoice was ever sent. Reply at 8; Qnlpa_re PIV-
00990 ("Historical Record") Lh PiV-l\/ISj-7 ("invoice"). Pivotal points out that
31 10055 was reversed on the same day it was entered, and explains it as an "invoice
numbering error." Reply at 6-8; PIV-MSJ-lO (reflecting [REDACTED] preceded by a
subtraction sign ("-"), next to the letters "RTN," and below the words "May Retum.").
Fudali seizes upon these references to 31 10055 as support for her argument that a
genuine issue of material fact exists over how much revenue was received by Pivotal
from Syngenta. Opp. at 15-16. She goes tijrther, however, by asserting that there was an
actual invoice 31 10055 that "was sent to Syngenta on or about April 30, 2002 when l\/is.
Fudali was still an employee there and would have been paid shortly thereafter and within
entries was [REDACTED] + [REDACTED] - [REDACTED] = [REDACTED].
5 As noted, the number should be [REDACTED].
_g-
the 90 days after Plaintiffleft Pivotal." Opp. at 11 n.2; PiV-l\/iSj-14. She claims that
Pivotal employee james l\/lontano "stated that commissions could have been paid had
Syngenta made a payment pursuant to invoice 31 10055." Opp. at 15. The latter
statements is said to be based on page 106 of Montano’s deposition. But, an examination
of Montano’s deposition indicates that he consistently refused to admit that there ever
was an invoice 31 10055 for he had never seen such an invoice that was in the form that
was used to be sent to a client nor any invoice sent to Syngenta that bore that number
31 10055. l\/lontano Dep. at 106-107. Thus, at no point did Montano ever say "that
commission could have been paid had Syngenta made a payment pursuant to invoice
31 10055." Opp. at 15. He persistently refused to admit that invoice 3110055 existed. id.
at 106-l 15.
Fudali can not defeat Pivotal’s motion for summaryjudgment merely by showing
some possibility of an existential doubt as to whether she was paid what she was due.
instead she must point to "evidence on which the jury could reasonably find for the
plaintiff." Anderson, 477 U.S. at 252. Fudali claims that she is owed commission on the
full [REDACTED] that she characterizes as "the actual amount of invoice number
31 10055." PiV-MSj-l¢l. Thus, she must provide evidence upon which ajury could
premise the conclusion that at one point Pivotal sent Syngenta an invoice for that amount
and Syngenta paid it. There is no such evidence; there is at best a doubt as to why the
number 31 10055 appears on the inquiry Report and Commission Calculation Worksheet
but no evidence anywhere that Syngenta was billed and paid this amount,
To the contrary, the only evidence is of the payments made by Syngenta that are
reflected on the inquiry Report and the Commission Calculation Worksheet. There is
simply no reason - and Fudali does not attempt to provide one - why Pivotal and
Syngenta would deviate from the payment schedule they had set forth in the Global
Agreement less than one week earlier. Nor can Fudali explain why Syngenta would
voluntarily pre-pay each and every item ([REDACTED]) listed in the payment schedule,
only to pay for those same items once again as they came due.é lndeed, Pivotal has
provided evidence that Syngenta made four payments (invoices 31 10063/31 10064 and
31 15004/31 15005) in accordance with the payment schedule; these payments would have
been redundant ii as Fudali contends, Syngenta had already paid [REDACTED] under
the Global Agreement. Perhaps Syngenta was so awash in cash that it blindly submitted
payment on any invoice that came in its door, even ifthat invoice was for more than nine
million Euros and ran counter to an agreement it entered into earlier in the week. lfsuch
a strange proposition were true, however, Fudali certainly has provided no evidence to
support it.
As a matter of law, then, defendant’s motion will be granted insofar as there is no
genuine issue of material fact over whether Pivotal was paid any more than
[REDACTED] from Syngenta pursuant to the Global Agreement within 90 days of its
enactment.
b. Ambiguity
The dispute over how much revenue was received by Pivotal from Syngenta
within 90 days of the Global Agreement presumes the answer to be relevant to the
calculation of Fudali’s commission under the Compensation Plan. This is not necessarily
the case. Pivotal asserts that Paragraph 12 (Termination) of the Compensation Plan
6 lndeed, F uda1i would receive a partial double recovery if allowed to recover commission based
upon the full value ofthe Global Agreement while retaining the commission Pivotal has already paid her.
_j()_
modifies Paragraph 6.2 (Payment of Commission/Grant of Credit) such that Fudali is
only entitled to commission based upon revenue received by Pivotal from Syngenta under
the Global Agreement within 90 days of its enactment. Fuda1i, in turn, contends that the
Compensation Plan is ambiguous as to the impact of an employee’s termination on the
payment of commission. Opp. at 9-13.
The question of whether a contract is ambiguous is a question of law that may be
decided on a motion for summaryjudgment. §_e_e Repub1ican Nat. Comm. v. Taylor, 299
F.3d 887, 892 (D.C. Cir. 2002) ("Where, as here, [n]one ofthe parties contends that
extrinsic evidence is at issue, but instead the parties merely present[ ] two competing
versions of what [they] intended by the disputed language, the contract's meaning is a
question for the court to decide.") (citation and quotation omitted). A contract is
ambiguous only when "the contract is, or the provisions in controversy are, reasonably or
fairly susceptible of different constructions or interpretations, or of two or more different
meanings." Gg;ce v. Lavine, 675 A.2d 67, 69 (D.C. 1996) (citations and quotations
omitted).
The general rule governing commissions is set forth in Paragraph 6.2 of the
Compensation Plan, which states in relevant part:
6.2. Pavment of Commission/Grant of Credit
Quota credit is given and commissions are earned when a license agreement
or, if an existing customer, a purchase order is signed. Commissions are
payable monthly after Pivotal’s receipt of a signed license agreement or, if
an existing customer, a purchase order and otherwise based upon the
following:
(a) 50% upon Pivotal’s receipt of the signed license agreement or purchase
order; and
(b) the remaining 50% of commission is payable to you upon Pivotal’s
receipt of full payment from the customer.
_]]-
UNLESS:
(c) where there are extended payment terms and the last payment is more
than 6 months after the date of the license agreement or purchase order,
in which case, you will be granted quota credit and paid commission for
the net present value ofthe commissionable fees calculated at an
effective interest rate of 20% upon Pivotal’s receipt of the first payment
made to Pivotal by the customer.
Compensation Plan 11 6.2.
Paragraph 12 of the Compensation Plan states in relevant part:
12. Termination
in the event you leave Pivotal for any reason, payment of
commissions owed to you will be paid to you as follows:
1
Commissions will be payable in accordance with this plan on
transactions where Pivotal receives a license agreement or, if
an existing customer, a purchase order on or before the last
day of your employment.
Commission payments due to you will be paid you in
accordance with the rules set out above, and in particular
only 50% payments will be made to you until full payment
has been made to Pivotal by the customer. There will be no
acceleration of future commission payments upon
termination.
in the event a customer does not pay Pivotal within 90 days
of the date of the license agreement or purchase order, you
will not receive any commission payment.
Compensation Plan 11 12.
As an initial matter, it is clear that Paragraph 12 is not relevant to this dispute if
the Global Agreement contains extended payment terms.7 This is because Paragraph 12
only becomes applicable to terminated employees who have "payments of commission
owed to [them]." Fudali would not have been "owed" any commission ifthe Global
Agreement contained extended payment terms because, upon Pivotal’s receipt of the first
7
The parties dispute whether the Global Agreement contains extended payment terms. This is
discussed in greater detail below.
-[2..
payment from Syngenta under the Global Agreement, Fudali would have been entitled to
payment on all of the commission due her.s
Paragraph 12 is relevant to this dispute if the Global Agreement did not contain
extended payment terms. Under that scenario, Fudali would have been entitled to
payment on 50% of her commission upon Pivotal’s receipt ofthe signed Global
Agreement.g Compensation Plan 11 6.2(a), The remaining 50% of her earned commission
would be payable upon Pivotal’s receipt of full payment from Syngenta. i_d_. atjl 6.2(b).
Because Fudali left after Pivotal had received the signed Global Agreement but before
Pivotal received full payment from Syngenta, she was "owed" commission upon her
departure and Paragraph 12 is applicable.
Fudali argues that Paragraph 12 is inapplicable to Paragraph 6.2 because, unlike
Paragraph 12, "[n]o where (sic) in Paragraph 6.2 does it mention the termination of
commission payments should Pivotal receive payments from Syngenta after 90 days of
the person’s resignation." Opp. at 13. §e_e a_l§g Opp. at 10 ("in fact, Paragraph 6.2 does
not discuss any elimination of commission due to termination. Rather, it sets forth a
payment scheme for commissions and discusses with specificity those commission
payments made depending upon the payments made by the purchaser."). She also argues
that Paragraph 12 cannot modify Paragraph 6.2 because "Paragraph 6.2 governs the
Payment of Commission and the Grant of Credit, and it does not make any reference to
Paragraph 12 governing Termination.” Opp. at 10.
8 Under this scenario, if Syngenta did not make all payments under the Global Agreement, an issue
would arise whether Paragraph 6.3 of the Compensation Plan applies to terminated employees such that
Fudali would have to return any portion of her commission based upon payments from Syngenta that were
never made.
9
The final signature on this agreement was affixed on l\/Iay 20, 2002. PiV-l\/lSj-6 at 27.
_13_
To the extent that Fudali is contending that an ambiguity exists merely because
two contractual provisions address the same subject without reference to each other,
Fudali’s argument is not persuasive. Fudali’s argument, taken to its logical conclusion,
would not only eviscerate every commission-related clause in the Compensation Plan
other than Paragraph 6.2 - it would create ambiguity in nearly every contract ever created
that contained more than one clause covering the same subject. This runs counter to a
fundamental rule of contract construction: "[a] contract is construed as a whole, giving
effect to all ofthe contract's provisions and avoiding a construction which would render
one ofthose provisions meaningless." Mercer l\/lggmt. Consulting, inc. v. Wilde, 920 F.
Supp. 219, 235 (D.D.C. 1996).
Fudali’s argument might have merit if Paragraph 6.2 provided a different course
of action than Paragraph 12 in the event of an employee’s termination. To the contrary,
however, Paragraph 6.2 is silent on termination and coexists in harmony with Paragraph
12 because, whereas Paragraph 6.2 governs the universe of Pivotal employees earning
commission, Paragraph 12 governs a subset ofthat universe: employees who are owed
commission but who are no longer employed by Pivotal. "[W]here both the specific and
general provisions may be given reasonable effect, both are to be retained." Ohio Power
Co. v. F.E.R.C., 744 F.2d l62, 168 n.7 (D.C. Cir. 1984).
just because these two provisions may be given reasonable effect, however, does
not close the case on ambiguity. To the contrary, Paragraph 12 requires further scrutiny.
There are two clauses in Paragraph 12 that potentially speak to our facts. The first is not
in dispute: Fudali was not entitled to an acceleration ofthe commission owed to her
merely because she was departing The second clause, however, has been the subject of
_14-
considerable contention:
in the event a customer does not pay Pivotal within 90 days ofthe date of
the license agreement or purchase order, you will not receive any
commission payment.
i;d. at 11 12 (the "Clause").
Pivotal believes that the Clause precludes Fudali from receiving commission from
any revenue that was not received by Pivotal from Syngenta within 90 days of the Global
Agreement. For this interpretation to be true, however, one must read the Clause to say:
"Only those payments made by Syngenta to Pivotal within 90 days of the date of the
Global Agreement are commissionable to Fudali." This interpretation would
significantly alter the payment structure of Paragraphs 6.2(a) and 6.2(b), which set forth
that: (1) 50% commission is payable to Fudali upon receipt by Pivotal ofthe Global
Agreement; and (2) the remaining 50% commission is payable to Fudali upon full
payment by Syngenta. in fact, the Clause could just as easily be read to preclude only
this second payment from being paid to Fudali because Syngenta did not make full
payment within 90 days of the Global Agreement. Similarly, it could be read to apply
only if Syngenta had not made any payment to Pivotal within 90 days of the Global
Agreement. Under that interpretation, the Clause would be inapplicable to Fudali
because we know that Syngenta did make such a payment. indeed, these are only some
of the possible interpretations,
The possibility of more than one reasonable interpretation ofthe Clause creates a
genuine issue of material fact that can only be resolved by ajury. Harbor ins. Co. v.
Schnable Found. Co., 946 F.2d 930, 934 n.l (D.C. Cir. 1991), c_e_rt. denied 504 U.S. 931(1992) ; Farmland industries, inc. v. Grain Board oflraq, 904 F.2d 732, 736 (D.C. Cir.
_15-
1990); E. P. Hikel & Co. v. Manhattan Co., 506 F.2d 201, 204 (D.C. Cir. 1974);
Nationwide l\/iut. ins. Co v. Nat’l Reo l\/lanagement inc., 205 F.R.D. 1, 9 (D.D.C. 2000),
appeal dismissed, 2004 WL 344111 (D.C. Cir. Feb. 20, 2004) citing Howard Univ. v.
Best, 484 A.2d 958, 966 (D.C. 1984).
c. Extended Payment Terms
The disputed question of whether the Global Agreement has "extended payment
terms" is of great importance to this case because the answer determines which of two
commission schemes are applicable to Fudali. Compare Compensation Plan 1111 6.2(a)
and 6.2(b) yv_i_th 11 6.2(c). Whereas Pivotal asserts that the Global Agreement does not
contain "extended payment terms," Fudali isjust as adamant that it does.
The determination of whether the Global Agreement contained "extended
payment terms" is hampered by the lack ofa definition for that phrase in the
Compensation Agreement. Pivotal’s corporate representative, james l\/lontano, testified
at his deposition that the phrase might refer to agreements pursuant to which products are
delivered to a customer on credit for payment at a later date. l\/iontano Dep. at 16: 13-
l7:l2. A careful reading of his deposition indicates that he never specifically indicated
that the Global Agreement did not contain extended payment terrns; he certainly did not
dismiss the idea that it did out of hand. lc_l. at 16-18. At one point, he even indicated that
he had "never seen extended payment terms." § at 16. He also indicated that reviewing
the schedule of proposed deliveries to Syngenta under the contract would be "one way to
approach" the question of whether the contract contained extended payment terms. Q. at
17-18.
Fudali, for her part, cites to the Global Agreement’s schedule of "l\/laintenance
_16_
and Support Rates" to which l\/lontano referred as a way of approaching the term
"extended payment terms" and states that "[t]he Pivotal-Syngenta contract has extended
payment terms." PIV-MSj-6 at 32; Opp. at 11. Since the schedule attached to the
agreement itself contains payments over a period of time and Montano never specifically
rejected the contention that it did, and because Montano also testified that: (1) he had
never seen "extended payment terms," and (2) the schedule of deliveries and payments
might be an approach to defining "extended payment terms," 1 must find that this term is
ambiguous and its meaning must be resolved by ajury.
Conclusion
For the reasons explained, 1 find that: (1) as a matter of law, Pivotal received no
more than [REDACTED] from Syngenta under the Global Agreement within 90 days of
its enactment; (2) Paragraph 12 of the Compensation Plan is ambiguous such that its
interpretation must be resolved by ajury; and (3) there is insufficient evidence to
establish, as a matter of law, that the Global Agreement has "extended payment terms."
Defendant’s motion will therefore be granted in part and denied in part.
An Order accompanies this Memorandum Opinion.
/s/
jOHN M. FACCiOLA
UNITED STATES MAGISTRATE jUDGE
Dated: October 15, 2007
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