Porter v. Aar Aircraft Services, Inc.

MOTION for Summary Judgment

W.D. Tenn.December 12, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ROGER PORTER, ) ) Plaintiff, ) ) v. ) Civil Action No.: 2:15-cv-02780 ) AAR AIRCRAFT SERVICES, INC. ) a/k/a AAR, and AAR CORP., ) ) Defendants. ) DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendants move for summary judgment on Plaintiff Roger Porter’s claims. There are no genuine issues of material fact to warrant a trial, and Defendants are entitled to judgment as a matter of law in relation to all of Plaintiff’s claims. The grounds for this motion are set forth in the Memorandum in Support of Defendants’ Motion for Summary Judgment and Concise Statement of Material Facts, filed herewith. Case 2:15-cv-02780-STA-tmp Document 61 Filed 12/12/16 Page 1 of 2 PageID 628 2 Respectfully submitted, s/ Craig A. Cowart Craig A. Cowart (TN Bar No. 017316) Sally F. Barron (TN Bar No. 016688) JACKSON LEWIS P.C. 999 Shady Grove Road, Suite 110 Memphis, TN 38120 Telephone: (901) 462-2600 Facsimile: (901) 462-2626 Email: craig.cowart@jacksonlewis.com sally.barron@jacksonlewis.com ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that on this 12th day of December, 2016, a true and correct copy of the foregoing document was served via electronic mail followed by U.S. Mail, postage prepaid on the following: James L. Holt, Jr. (TN Bar No. 012123) Paula R. Jackson (TN Bar No. 20149) JACKSON SHIELDS YEISER & HOLT 262 German Oak Dr. Memphis, TN 38018 Tele: (901) 754-8001 Fax: (901) 754-8524 Email: jholt@jsyc.com pjackson@jsyc.com Attorneys for Plaintiff s/ Craig A. Cowart 4821-7986-2582, v. 1 Case 2:15-cv-02780-STA-tmp Document 61 Filed 12/12/16 Page 2 of 2 PageID 629 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ROGER PORTER, ) ) Plaintiff, ) ) v. ) Civil Action No.: 2:15-cv-02780 ) AAR AIRCRAFT SERVICES, INC. ) a/k/a AAR, and AAR CORP., ) ) Defendants. ) MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendants AAR CORP. and AAR Aircraft Services, Inc. (hereinafter “Defendants”) pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56.1, submit this memorandum in support of their motion for summary judgment. I. INTRODUCTION Plaintiff filed his Third Amended Complaint against Defendants alleging breach of contract. (Plaintiff’s Third Amended Complaint, Doc. No. 57). As stated in this memorandum, Louisiana law applies, and Defendants are entitled to summary judgment as to Plaintiff’s claims. There is no contract in this case; rather, there is a conditional offer of employment that specifically contemplated that the parties would subsequently enter into a written “executive employment contract.” No such subsequent contract was ever entered into, and Louisiana law provides that the parties are not bound until they enter into a contract in the form contemplated by the parties. Even where there are written agreements on some initial terms, Louisiana law Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 1 of 17 PageID 630 2 provides that when the parties contemplate an agreement in a particular form, they are not bound until the contract is entered into in the particular form contemplated. In addition, no contract was made between the parties because there was no agreement on material terms. For example, while the conditional offer provided that the parties would subsequently agree upon a start date, no start date was ever set. Additionally, the conditional offer also contemplated future agreement on confidentiality and non-compete provisions. Agreement on those material terms was never made, and in fact no agreement upon material terms exists to evidence a contract between the parties. Plaintiff’s breach of contract claim also fails because there was no meeting of the minds. Notwithstanding the lack of agreement upon a start date, and no agreement between the parties with respect to contemplated confidentiality and non-compete provisions, it is undisputed that Plaintiff never performed any work for Defendants. Tellingly, just three weeks after the date of the conditional offer of employment, Plaintiff told a reporter in an interview for a published article that he did not know if he would be employed by Defendants. The fact that Plaintiff publicly stated that he did not know if he would be employed by defendants, together with the fact that Plaintiff never actually performed any work for Defendants, is clear evidence that there was no meeting of the minds and there is no contract. Even if, for the sake of argument, there had been an employment contract, it would not be enforceable to the extent claimed by Plaintiff - any employment of Plaintiff would have been “at will” since the document did not contain a defined term of employment. Defendants would have been entitled to terminate Plaintiff at any time and would have terminated him prior to his first day on the job “for cause” pursuant to Defendants’ policy titled, “Standards of Business Ethics and Conduct.” Notwithstanding the multiple conditions precedent that were not fulfilled, the Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 2 of 17 PageID 631 3 conditional offer of employment was dependent upon Plaintiff’s ability to comply with Defendants’ policies, including the “Standards of Business Ethics and Conduct.” As will be discussed below, Plaintiff failed to meet this requirement. Because of Plaintiff’s inability to comply with Defendants’ policies, Defendants would have been entitled to rescind the conditional the alleged agreement and would have had more than ample reason to terminate Plaintiff for Cause before he ever performed any work. As a result, Defendants would in no event be liable to Plaintiff for damages. Plaintiff’s claim is also barred by the doctrine of unclean hands: Plaintiff deceptively used the potential employment conversations he had with Defendants to attempt to acquire business intelligence and confidential information about Defendants, all the while simultaneously pledging his loyalty to a competitor of Defendant and his desire to be employed by that competitor. Finally, Plaintiff’s citation to the Louisiana Wage Payment Act (La. R.S. §§ 23:631 and 23:632) in the prayer for relief in his Third Amended Complaint (Doc. No. 57) is misplaced and does not give rise to recovery of any penalty wages or attorneys’ fees. Damages for alleged breach of contract, even in the nature of alleged lost wages, do not come under La. R.S. § 23:631. Therefore, La. R.S. §23:632 does not provide the statutory authority to award attorney fees, nor does any other contractual or statutory provision. See, Lamonte v. Premier Sales, Inc., 821 So. 2d 120, 122-123 (La. App. 5 Cir. May 30, 2002). For the reasons summarized above and more fully set forth below, Defendants are entitled to summary judgment as to Plaintiff’s claims. Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 3 of 17 PageID 632 4 II. STANDARD OF REVIEW Summary judgment is appropriate where “the pleadings, discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Smith v. USF Holland, Inc., 2008 U.S. Dist. LEXIS 80046 (E.D. Tenn. Oct. 7, 2008); see also Fed. R. Civ. P. 56(c). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material and must be facts which, under the substantive law governing the issue, might affect the outcome. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Moling v. O’Reilly Auto., Inc., 763 F. Supp. 2d 956, 958-959 (W.D. Tenn. 2011) (quoting Celotex Corp., 477 U.S. at 323). Once the burden has shifted, the nonmoving party cannot rely on speculation, but must go beyond the pleadings and present facts on each element of his case showing that there is a genuine issue of fact. Id. The mere existence of a scintilla of evidence in support of the nonmoving party is not sufficient to establish an issue of fact and preclude summary judgment. Id. Instead, the nonmoving party is required to produce evidence of specific facts establishing that genuine issues of material fact exist. Smith, 2008 U.S. Dist. LEXIS 80046, *6. For the reasons set forth herein, Plaintiff cannot produce evidence of specific facts establishing that genuine issues of material facts exist warranting a trial of his claims. Consequently, Defendants are entitled to summary judgment in their favor as a matter of law. Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 4 of 17 PageID 633 5 III. LEGAL ANALYSIS A. Louisiana Law Applies The substantive law of the forum state must be applied by federal courts exercising jurisdiction on the ground of diversity. Zoroufie v. Lance, Inc., 2008 U.S. Dist. LEXIS 50012, *4 (W.D. Tenn., June 27, 2008) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). In Tennessee, the conflict of laws rule governing contracts is that “the law of the state in which the contract was made governs unless the parties express the intent that another state’s law applies.” Id. (quoting Vencor, Inc. v. Standard Life and Acc. Ins. Co., 317 F.3d 629, 634 (6th Cir. 2003). Under Tennessee law, absent contrary intent, a contract is presumed to be governed by the law of the state in which it was executed. Id. (citing Se. Texas Inns, Inc. v. Prime Hospitality Corp., 462 F.3d 666, 672 (6th Cir. 2006). Therefore, the law that governs this action is the law of the state in which Defendants and Porter are alleged to have executed a contract – Louisiana. B. Defendants Are Entitled to Summary Judgment on Plaintiff’s Breach of Contract Claim. 1. There is no enforceable contract. a. No contract was ever executed in the contemplated form. The “conditional offer of employment” letter Plaintiff signed on August 1, 2013 is not an enforceable contract under applicable law. The conditional offer specifically states that Porter agrees to enter into a future “executive employment contract with AAR, which shall include standard provisions regarding confidentiality and non-compete.” (See CSMF ¶ 13).1 The Louisiana Civil Code specifically addresses the situation where parties agree to some initial terms but contemplate subsequently executing a formal contract. Under Louisiana law, 1 References to the record authority for the Concise Statement of Material Facts filed contemporaneously with Defendants’ Motion for Summary Judgment and this supporting memorandum will be referenced as “CSMF.” Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 5 of 17 PageID 634 6 the parties are not bound until the contract is executed in the particular form contemplated by the parties. Louisiana Civil Code Art. 1947 provides: When, in the absence of a legal requirement, the parties have contemplated a certain form, it is presumed that they do not intend to be bound until the contract is executed in that form. Louisiana courts hold that when a formal contract is contemplated, parties are not bound by preliminary documents. This is true even where terms of agreement are recited in preliminary documents. See, e.g., Ballard v. XTO Energy, Inc., 784 F.Supp.2d 635, 640-41 (W.D. La. 2011) (No enforceable contract where parties exchanged writings setting out terms of agreement, but “had contemplated consummating the deal by other means.”); Fashion Plantation Estates, LLC v. Union Pac. R.R. Co., 2005 U.S. Dist. LEXIS 5518, **7-11 (E.D. La. 2005) (No enforceable contract where parties had exchanged correspondence setting forth agreed terms, but contemplated execution of an “agreement”); Carter v. Huber & Heard, Inc., 657 So.2d 409 (La. App. 3 Cir. 1995) (No enforceable employment contract where parties had negotiated terms, but contemplated a formal contract that was never signed); Knipmeyer v. Diocese of Alexandria, 492 So.2d 550 (La. App.3 Cir., 1986) (School not obligated to employ principal even after “letter of intent” had been completed because a subsequent contract was contemplated by the parties). Here, the parties contemplated entering into a separate “executive employment contract,” but never did. There is no enforceable contract. b. There was no agreement on material terms. In addition, no contract exists because the parties never agreed upon the material terms of employment. The August 1, 2013 conditional offer expressly contemplated a future agreement between the parties with respect to a commencement date for Plaintiff’s employment, but the parties never agreed upon such a date. (See CSMF ¶¶ 13, 17-18). The conditional offer also Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 6 of 17 PageID 635 7 contemplated future agreement by the parties with respect to “provisions regarding confidentiality and non-compete” in a written “executive employment contract.” (See CSMF ¶ 13). As noted above, the contemplated executive employment contract was never entered into by the parties. There was never any agreement on key provisions, including, but not limited to, a commencement date, non-compete terms and confidentiality provisions. Louisiana courts hold that where parties agree to some terms (even in writing), but leave other terms for a contemplated final agreement, there is no enforceable contract. See, e.g., Ballard, 784 F.Supp.2d at 641; Fashion Plantation Estates, 2005 U.S. Dist. LEXIS at *11. c. There was no meeting of the minds. Consent of the parties is necessary to form a valid contract. Louisiana law has long been clear that in order to find an enforceable contract, there must have been a meeting of the minds of the parties. See, Buruzs v. Buruzs, 686 So.2d 1006 (La. App. 4 Cir. 1996). As testified to by the 30(b)(6) corporate representative for Defendants, the August 1, 2013 conditional offer of employment merely reflected the parties’ intent to explore potential terms of a future employment agreement. (Goodpaster 30(b)(6) Depo., pp. 16-17, attached as Exhibit C to Defendants’ Concise Statement of Material Facts). Where there is no meeting of the minds between the parties, the contract is void for lack of consent. Stockstill v. C.F. Indus., Inc., 665 So.2d 802, 820 (La. App. 1 Cir. 1995); Howell v. Rhoades, 547 So.2d 1087, 1089 (La. App. 1 Cir. 1989). There was no meeting of the minds or consent in the present case. The fact that Plaintiff never actually performed any work for Defendants is evidence that there was no meeting of the minds - if essential terms had been agreed upon, Plaintiff would have performed work as Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 7 of 17 PageID 636 8 Defendants’ employee at some point between the time of the offer letter and the time of his filing of the present lawsuit. Plaintiff has admitted that he never performed any work for Defendants. (CSMF ¶ 38). As noted above, the parties never agreed on a start date or entered into an executive employment contract. Indeed, on August 21, 2013, approximately three weeks after signing the conditional offer of employment letter, Plaintiff spoke publicly to media representatives and was asked whether he would work for Defendants. (CSMF ¶ 39). Plaintiff responded that he was “not sure if that’s going to be an option or not . . . They’re certainly an excellent company . . . I would consider it.” (See CSMF ¶ 40). Plaintiff’s response is telling for several reasons: (i) it does not indicate, as Plaintiff now claims, that Plaintiff believed he had an employment contract with Defendants, and (ii) to the contrary, it clearly reflects Plaintiff’s uncertainty about future employment with Defendants. There can be no meeting of the minds when these facts demonstrate that Plaintiff did not know in his own mind whether he was going to work for Defendants. Plaintiff knew there was no binding employment contract. Years later, after never having performed any work for Defendants, Plaintiff is attempting to create an enforceable contract out of a conditional offer of employment. There is no enforceable contract, and Defendants are entitled to summary judgment. 2. Alternatively, even if there had been a contract, it would not be enforceable. a. There is no term of employment, and, even if Plaintiff had been employed, he would have been terminable at will. Under Louisiana law, if an employment contract does not have a fixed term, the employee is terminable at will. See, Quebedeaux v. Dow Chem., 820 So. 2d 542, 545 (La. 2002). That is exactly the case here. First, the conditional offer does not refer to a fixed term of employment. Second, the conditional offer does not have a commencement date and, instead, Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 8 of 17 PageID 637 9 references a “mutually convenient” commencement date. (CSMF ¶ 17). Without a commencement date, there can be no fixed term. Third, on the face of his Third Amended Complaint, Plaintiff negates the existence of a fixed term. In paragraph 19 of the Third Amended Complaint, Plaintiff uses the self-contradicting language of “a definite term of at least five (5) years.” (Doc. No. 57). If there were a “definite” term, it would not be for “at least” a certain amount of time – a “definite” amount of time is not an “at least” amount of time.2 This lack of a fixed term stated in the conditional employment offer means that, even if the conditional offer is considered to be a contract, Defendant would be employed at will and subject to termination by Defendant at will. Even if there had been a contract, Plaintiff would have been terminable at will pursuant to Louisiana law. Accordingly, he would not be entitled to recover damages for a set period of time as claimed, and Defendants are entitled to judgment as a matter of law. b. Unfulfilled conditions make the purported contract unenforceable. Under Louisiana law, a conditional obligation (or contract) is one dependent on an uncertain event. Louisiana Civil Code Art. 1767. Moreover, “[f]or a contract subject to a condition to be enforceable, the party urging enforcement must prove fulfillment of the condition.” Woodrow Wilson Constr. Co. v. Fashion Café, L.L.C., 745 So.2d 763, 766 (La. App. 4 Cir. 1999), citing Johnson Rice & Co. v. Boudreaux, 710 So. 2d 294, 295-96 (La. App. 4 Cir. 1998). Here, there were several conditions in the August 1, 2013 conditional offer of employment. First, the conditional offer specifically states that Plaintiff agrees to enter into a 2 Plaintiff appears to rely on language in the August 1, 2013 letter applicable only to a contemplated potential grant of stock. There is no other reference of a five year period anywhere else in the letter. The five year reference obviously does not reflect an agreed upon length of employment. Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 9 of 17 PageID 638 10 future “executive employment contract with AAR, which shall include standard provisions regarding confidentiality and non-compete.” (CSMF ¶ 13). The standard employment contract also would have required Plaintiff to comply with Defendants’ policies, including the AAR CORP. Standards of Business Ethics and Conduct. (CSMF ¶¶ 19, 20.) Additionally, the conditional offer specifically required a “mutually agreeable” commencement date for Plaintiff’s employment. (CSMF ¶ 17). None of the conditions in the conditional offer were satisfied. Plaintiff never executed the contemplated executive employment contract; no commencement date of employment was ever agreed upon; and Plaintiff never met the conditions to become a qualified employee under the terms of Defendants’ standard executive employment contract. (CSMF ¶¶, 18). Plaintiff admits that his Company did not pay wages owed to its employees. (CSMF ¶ 30). As discussed in more detail below, he also had failed to make payments to some of his business vendors and/or creditors. (CSMF ¶¶ 27, 28). Because failure to pay wages owed to employees and failure to pay business vendors/creditors violated numerous provisions of the AAR Corp. Standards of Business Ethics and Conduct (CSMF ¶ 31 - 34), the condition that Plaintiff enter into an executive employment contract and comply with the Company’s policies was not and would not be met. Accordingly, even if there were a conditional contract, it is unenforceable due to failure of Plaintiff to satisfy the condition that he comply with the Standards of Business Ethics and Conduct. c. Alternatively, Defendants are entitled to rescission. Under Louisiana law, a party’s consent to a contract “may be vitiated by error, fraud, or duress.” Louisiana Civil Code Art. 1948. If error vitiates a party’s consent, the contract may be rescinded. Cypien v. Bd. Of Supervisors ex rel. Univ. of La., 5 So.3d 862, 868 (La. 2009). When Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 10 of 17 PageID 639 11 there is error with regard to the reason for entering into an agreement, Louisiana law provides for rescission of the contract.3 See, Chalos & Co., P.C. v. Marine Managers, Ltd., 2015 U.S. Dist. LEXIS 144199 (E.D. La. 2015). The labor pool of employees from the business Plaintiff had operated in Lake Charles was a primary factor in Defendants’ desire to do business in Lake Charles (CSMF ¶ 25). The reason Defendants made a conditional offer to employ Plaintiff in a leadership role was because Plaintiff was believed to be a reputable manager of the Lake Charles employees, as well as a successful leader, business owner, and participant in the industry. This belief ended up to be in error. (CSMF ¶ 37). Only after making a conditional offer of employment to Plaintiff and starting operations in Lake Charles did Defendants learn about the numerous lawsuits filed against Plaintiff by former employees of Aeroframe (owned and operated solely by Plaintiff) for wages Plaintiff admitted he owed to them. Defendants received many complaints from employees themselves about not being paid wages owed by Aeroframe and not receiving benefits due to them from Aeroframe. (CSMF¶ 26). After AAR started operations in Lake Charles, Defendants also learned that there were significant complaints about Plaintiff from vendors/creditors and potential customers of Defendants in Lake Charles. (CSMF ¶¶ 27-28). Defendants were notified that vendors/creditors of Plaintiff’s company, Aeroframe, had not been paid and, in some cases, sought to repossess items located at the Chennault International Airport in Lake Charles. (CSMF¶ 27). Based on this information, Defendants realized that there had been an error concerning the reason for making a conditional offer to Plaintiff and that he in fact was not capable of effectively managing the 3 Under Louisiana law, the reason why a party enters into an agreement is referred to as the “cause.” See, e.g., Louisiana Civil Code Art. 1949; Peironnet v. Matador Res. Co., 144 So.3d 791, 807 (La. 2013). Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 11 of 17 PageID 640 12 employees at the work site or establishing good business relationships with creditors/vendors and potential customers. (CSMF ¶ 37). Based on those facts, under Louisiana law, Defendants would have been entitled to rescind any contract with Plaintiff. 3. Even if there were an enforceable contract that was not rescinded, Defendants had cause not to employ Plaintiff, and there are no recoverable damages. Under Louisiana law, termination is for cause if the actions at issue are likely to have a material adverse impact on the employer. Sun Drilling Prod. Corp. v. Rayborn, 798 So. 2d 1141, 1152 (La. App. 4 Cir. 2001). Additionally, under the terms of Defendants’ standard executive employment contract (which was never entered into by Plaintiff), failure to adhere to Defendants’ policies and standards would have constituted Cause for termination. If Plaintiff had become an employee of Defendants, he would have been terminated for Cause before performing any work because: i) he failed to adhere to the standards described in Defendants’ policies and ii) his actions were likely to have an adverse impact on Defendants. The AAR CORP. Standards of Business Ethics and Conduct contains several provisions that Plaintiff failed to comply with or violated. First, the policy requires the avoidance of “any activities that could involve or lead to involvement . . . in any unethical or unlawful practice.” (CSMF ¶ 21). Additionally, the policy provides that “[t]he Company’s employees are expected to adhere to a high standard of business and personal ethics and integrity . . . .” (CSMF ¶ 22). The policy also requires compliance “with all applicable laws, rules and regulations of all governmental jurisdictions . . . in which the Company conducts its business,” and requires that every employee “observe high standards of business and personal ethics. This includes acting with honesty, sincerity, and fairness in dealings with the public, government officials, customers, fellow employees and those with whom the Company transacts business.” (CSMF ¶¶ 23-24). Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 12 of 17 PageID 641 13 Failure to pay wages owed to employees and failure to pay business vendors/creditors violated all of these provisions and requirements of the Standards of Business Ethics and Conduct. (CSMF ¶¶ 27-30). Plaintiff admits that the company he solely owned did not pay wages that were due and owing to its employees, which resulted in numerous lawsuits. The failure to pay wages due and owing to employees demonstrates unethical judgment and poor leadership, and it does not exhibit the standard of business ethics and conduct Defendant requires of its business leaders. Plaintiff’s failure to pay wages due and owing to his employees would entitle Defendant to not place Plaintiff in any leadership role or position of authority over those same individuals as a representative of Defendant. Plaintiff’s questionable business judgment as a principal of Aeroframe resulted in toxic relations with the same individuals Defendant hoped to hire and the same customers, vendors and suppliers whom Defendant would need to rely upon to make its own Lake Charles business operation a success. To make matters worse, Plaintiff’s Aeroframe company failed to pay its many vendors and suppliers, and its customers also informed Defendant that they would have significant concerns if they would have to do business with Defendant in the future. Upon learning of Plaintiff’s track record in this regard as the sole owner of Aeroframe, Defendants would have had ample reason to terminate Plaintiff for cause. For this additional reason, Plaintiff would not be entitled to any damages under the terms of the conditional offer letter. Accordingly, Plaintiff’s conduct in that regard renders any conditional agreement that may have been established by the conditional offer of employment rescindable in the first place and in any event subject to immediate termination for cause by Defendant thereafter. Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 13 of 17 PageID 642 14 Plaintiff’s failure to pay employees who constituted Defendants’ labor pool, failure to pay business vendors/creditors, and issues with Defendants’ potential customers would have a material adverse impact on Defendants - this alone is cause for termination under Louisiana law. See Sun Drilling Prod. Corp., 798 So. 2d at 1152. In addition, Plaintiff’s actions vis-à-vis Aeroframe’s employees, customers, suppliers and creditors, as described above, violated Defendants’ corporate policies. (See, CSMF §§ 20-24; 26-36). Plaintiff would have been subject to termination for violation of company policies because he: did not pay employees of his company, Aeroframe, wages and benefits due them; did not inform his employees that he was closing the business (he simply left the premises); and, had major issues with customers and potential customers in Lake Charles. (CSMF ¶ 37). The August 1, 2013 conditional offer of employment Plaintiff contends forms a contract specifically states, “[i]f at any time you are terminated for cause (as defined in AAR corporate policies), you shall forfeit all compensation described above.” Plaintiff’s conduct, described above, would have constituted cause for termination under Louisiana law as well as under Defendants’ policies. If Plaintiff ever had been employed by Defendant, he would have been promptly terminated for cause and therefore would “forfeit all compensation” described in the August 1, 2013 letter.4 For this additional reason, Defendants cannot be liable to the Plaintiff for damages. 4. Plaintiff should be barred from recovery under the alleged contract because he comes to court with unclean hands. Even if there were an enforceable contract under the present circumstances, Plaintiff’s claim for damages arising thereunder is barred by the doctrine of unclean hands. The courts have clearly stated that “Louisiana law forbids relief to a claimant who, through his own acts or 4 Plaintiff never performed any work for Defendants. (CSMF ¶ 36). Accordingly, Plaintiff has no basis for recovery other than the terms of the August 1, 2013 letter he claims to be a contract of employment. Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 14 of 17 PageID 643 15 omissions, causes the problem about which he complains.” Robin v. Binion, 469 F.Supp.2d 375, 395 (W.D. La. 2007). According to these principles, Plaintiff should be denied relief in the present case. Plaintiff was not in a position to enter into an employment agreement with Defendants because he already had entered into an agreement to work for a competitor company called ATS. (CSMF ¶ 11). The undisputed facts show that Plaintiff had already signed an employment agreement with ATS and he negotiated with Defendant(s) while at the same time pledging loyalty to ATS. (CSMF ¶¶ 11, 16). Plaintiff’s communications with ATS during the time when he was negotiating about possible employment with Defendant is evidence of his lack of intent to enter into a binding employment agreement with AAR. To be sure, he assured ATS, on the exact same day he signed the conditional offer letter from Defendant, that he was “on the ATS team” and would keep them in the loop. (Id.). One of the conditions of Plaintiff’s future employment with AAR was that Plaintiff would be required to enter into a non-disclosure and confidentiality agreement. (CSMF ¶ 13). Plaintiff’s pledge of loyalty to ATS during the time when he was negotiating with Defendants demonstrates that he already had committed to employment with ATS and is evidence of unclean hands. Plaintiff should not be permitted to benefit from an agreement with Defendants that was never consummated and could have subjected Defendants to claims of interference from its competitor. For these additional reasons, Plaintiff should be barred from recovery in the present case. C. There is no basis for Plaintiff to recover penalty wages or attorneys’ fees. Louisiana law is well settled that attorney fees may not be awarded unless agreed to by the parties by contract or authorized by statute. See, Lamonte v. Premier Sales, Inc., 821 So. 2d Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 15 of 17 PageID 644 16 120, 122 (La. App. 5 Cir. 2002). The conditional offer of employment Plaintiff attempts to rely on for his breach of contract claim is silent as to attorneys’ fees. See, Doc. No. 57-2. In the prayer for relief in Plaintiff’s Third Amended Complaint (Doc. No. 57), Plaintiff cites La R.S. 23:631 and 23:632 in an improper attempt to recover penalty wages and attorneys’ fees under Louisiana’s Wage Payment Act. These statutes call for payment of wages for work performed when an employee resigns or is terminated. Because Plaintiff never performed any work for Defendants (CSMF ¶ 38), there were no earned but unpaid wages subject to the Louisiana Wage Payment Act. Damages for alleged breach of contract, even in the nature of alleged lost wages, do not come under La. R.S. § 23:631. See, Lamonte v. Premier Sales, Inc., 821 So. 2d 120, 122-123 (La. App. 5 Cir. May 30, 2002). Therefore, La. R.S. §23:632 does not provide the statutory authority to award attorney fees, nor does any other contractual or statutory provision. Id. To the extent Plaintiff improperly attempts to state a claim for penalty wages and/or attorneys’ fees pursuant to La R.S. 23:631 and/or 23:632, there is no basis for such claim, and any claim for such damages should be dismissed. IV. CONCLUSION For all of the reasons set forth above, Defendants are entitled to summary judgment as to Plaintiff’s claims. Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 16 of 17 PageID 645 17 Respectfully submitted, s/ Craig A. Cowart Craig A. Cowart (TN Bar No. 017316) Sally F. Barron (TN Bar No. 016688) JACKSON LEWIS P.C. 999 Shady Grove Road, Suite 110 Memphis, TN 38120 Telephone: (901) 462-2600 Facsimile: (901) 462-2626 Email: craig.cowart@jacksonlewis.com sally.barron@jacksonlewis.com ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that on this 12th day of December, 2016, a true and correct copy of the foregoing document was served via electronic mail followed by U.S. Mail, postage prepaid on the following: James L. Holt, Jr. (TN Bar No. 012123) Paula R. Jackson (TN Bar No. 20149) JACKSON SHIELDS YEISER & HOLT 262 German Oak Dr. Memphis, TN 38018 Tele: (901) 754-8001 Fax: (901) 754-8524 Email: jholt@jsyc.com pjackson@jsyc.com Attorneys for Plaintiff s/ Craig A. Cowart 4850-6450-7710, v. 2 Case 2:15-cv-02780-STA-tmp Document 61-1 Filed 12/12/16 Page 17 of 17 PageID 646