Eric Goss v. E.S.I. Cases & Accessories, Inc.

20-3500-cv
Eric Goss v. E.S.I. Cases & Accessories, Inc.
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
7th day of December, two thousand twenty-one.
PRESENT: GUIDO CALABRESI,
DENNY CHIN,
WILLIAM J. NARDINI,
Circuit Judges.
_______________________________________
ERIC GOSS,
Plaintiff-Counter-Defendant-Appellant,
v. No. 20-3500-cv
E.S.I. CASES & ACCESSORIES, INC.,
Defendant-Counter-Claimant-Appellee.
_______________________________________
For Appellant: MICHAEL J. WILLEMIN (David A. Schmutzer,
on the brief), Wigdor LLP, New York, NY.
For Appellee: GLEN LENIHAN (Andrew J. Urgenson, Judith
L. Swartz, on the brief), Oved & Oved LLP,
New York, NY.
On appeal from the United States District Court for the Southern District of New York
(George B. Daniels, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered by the district court on September 30, 2020, is
AFFIRMED.
Plaintiff-Counter-Defendant-Appellant Eric Goss appeals from the judgment of the district
court entered on September 30, 2020, granting summary judgment against Goss with respect to his
breach of contract claim against Defendant-Counter-Claimant-Appellee E.S.I. Cases &
Accessories, Inc. (“ESI”). We assume the reader’s familiarity with the record.
ESI and Goss entered into an employment agreement (the “Agreement”) on June 19, 2017.
The Agreement provided that Goss would serve as ESI’s Vice President and that he would report
to ESI’s Chief Executive Officer, Elliot Azoulay. Prior to Goss’s employment with ESI, he owned
and managed Intercon Development, LLC (“Intercon”) and was a one-third owner of, and
salesperson for, Stan Goss & Associates (“SGA”). According to Goss, once his ESI employment
began, he transferred his SGA ownership interest to his brother, Mark Goss.
Under the Agreement, “[d]uring the duration of [Goss’s] employment with [ESI],” Goss
could not: (1) “accept other employment in any capacity whatsoever”; (2) “engage in any outside
business or employment”; or (3) “become self-employed in any other capacity.” Joint App’x at
206. The Agreement did, however, allow Goss to his retain his “ownership in Intercon” “[s]o long
as [he did] not violate any of the non-competition provisions of th[e] Agreement or fail to perform
[his] duties and responsibilities under th[e] Agreement.” Id.
The Agreement provided that ESI could terminate Goss “For Cause.” Id. at 208. The
Agreement defined “For Cause” to include, among other things, “[Goss’s] violation of any of the
covenants of this Agreement.” Id. If terminated “For Cause,” Goss would not be entitled to any
severance payments.
After a dispute over whether Goss was spending all of his working time on his prior
business rather than ESI business, ESI terminated Goss “For Cause,” and therefore did not provide
him any severance pay. Thereafter, Goss sued ESI for breach of contract, alleging that his
termination was, in fact, without cause. ESI brought various counterclaims. The parties filed
cross-motions for summary judgment. On September 29, 2020, the district court granted in part
and denied in part both parties’ motions for summary judgment, dismissing Goss’s claims for
breach of contract and dismissing all of ESI’s counterclaims. 1
The court reviewed undisputed evidence that, “[b]etween June 20, 2017 and January 15,
2018, Goss sent no fewer than 67 emails from Goss’s SGA email account concerning business that
was not related to ESI.” Id. at 312. It was also undisputed that, during this time, Goss exchanged
numerous emails, using an SGA email address, with a K-mart buyer regarding SGA business (in
1
ESI has not appealed that decision.
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particular, the sale of tarps to K-mart and access to K-mart’s computer system to change product
pricing). The district court concluded that, “[d]espite the fact that the employment agreement does
not clearly define what constitutes ‘engaging in outside employment,’ it strains logic to assert that
the information and communications in the record would not constitute working for outside
companies in violation of the employment agreement.” Special App’x at 6. ESI therefore “had
cause to terminate” Goss and so owed him no severance. Id. Goss timely appealed.
This Court’s “review of a district court’s grant of summary judgment is de novo.” Colon
de Mejias v. Lamont, 963 F.3d 196, 202 (2d Cir. 2020). “Accordingly, contract interpretation as a
question of law is . . . reviewed de novo on appeal.” Id. (internal quotation marks and alteration
omitted). “Summary judgment is properly granted when there is no genuine issue of material fact
and one party is entitled to judgment as a matter of law.” Moreno-Godoy v. Kartagener, 7 F.4th
78, 84 (2d Cir. 2021).
Generally, a motion for summary judgment “may be granted in a contract dispute only
when the contractual language on which the moving party’s case rests is found to be wholly
unambiguous and to convey a definite meaning.” Topps Co., Inc. v. Cadbury Stani S.A.I.C., 526
F.3d 63, 68 (2d Cir. 2008). That is the case here. Ambiguity “is defined in terms of whether a
reasonably intelligent person viewing the contract objectively could interpret the language in more
than one way.” Id. Goss contends that the undefined terms “engage in any outside business or
employment” are subject to multiple interpretations. Joint App’x at 206 (emphasis added). We
disagree. Goss’s numerous e-mails in connection with SGA are enough to establish as a matter of
law that he engaged in business, repeatedly, on behalf of SGA, and therefore that he breached the
Agreement. As Goss was prohibited from engaging in “any outside business,” his business activity
on behalf of SGA while employed by ESI was sufficient to support his termination for cause.
We have considered Goss’s remaining arguments and conclude that they are without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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