The opinion of the court was delivered by: REED
Reed, J. February 7, 1995
Plaintiff James W. Crabtree has brought this breach of contract and quantum meruit action against defendant Academy Life Ins. Co. in order to recover attorney fees allegedly owed him by defendant. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1332 as the parties are of diverse citizenship and the amount in controversy is in excess of $ 50,000 exclusive of interest and costs.
Plaintiff, an attorney licensed to practice law in the state of North Carolina, was retained by defendant in August 1984 at plaintiff's then standard billing rate of $ 150.00 per hour. In January 1985, defendant asked and plaintiff agreed that (1) plaintiff would be paid at a lower billing rate of $ 90.00 per hour and (2) if plaintiff was ever terminated he would receive deferred compensation on all the hours billed since February 1985. The deferred compensation was to be calculated by multiplying the number of hours billed by the difference between plaintiff's standard billing rate at the time of termination and the lower billing rate of $ 90.00 per hour.
Approximately eight years later, in January 1993, Capital Holding Corporation purchased a 100% interest in Academy Life Insurance Group, Inc., of which defendant was a wholly owned subsidiary. At the same time as the change in ownership, defendant and plaintiff agreed that December 31, 1992 would be the last date on which bills would be calculated for purposes of plaintiff's deferred compensation. On February 4, 1994, defendant terminated plaintiff. Defendant has since refused to pay plaintiff the compensation agreed to. As of December 31, 1992 and February 4, 1994, plaintiff's standard billing rate was $ 185.00 per hour.
Before getting to the substance of defendant's arguments for dismissal, it is necessary to address two preliminary matters. These matters are (1) whether the instant motion should be treated as a motion to dismiss or as a motion for summary judgment and (2) the choice of law applicable to the instant action.
A. Conversion of a Motion to Dismiss Into a Motion for Summary Judgment
Defendant has labelled its motion, in the alternative, as a motion for summary judgment, and both parties have submitted materials outside of the original complaint. Under Fed. R. Civ. P. 12(b), a motion to dismiss for failure to state a claim upon which relief can be granted can be converted into a motion for summary judgment if the court considers matters outside of the complaint in deciding the motion. The decision regarding whether to make this conversion is within the discretion of this Court. Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 at 491 (1990)).
After examining the materials submitted by the parties, I find that they provide, at best, a very incomplete picture of the facts critical to the instant action. Therefore, I will decline the parties' invitation to convert the instant motion into a motion for summary judgment, and I will exclude from my consideration any materials outside of the complaint for the purposes of deciding the instant motion. Since this motion will be treated solely as a motion to dismiss, I "must accept as true all of the factual allegations in the complaint as well as the reasonable inferences that can be drawn from them, and dismissal is appropriate only if no ...