The opinion of the court was delivered by: Judge Caputo
(Magistrate Judge Carlson)
I. INTRODUCTION AND STATEMENT OF THE CASE
Pro se Plaintiff, Mark Kearney initiated this action against JPC Equestrian, Inc. ("JPC"), and one of JPC's top executives, Varun Sharma ("Sharma"), in the Commonwealth of Kentucky, 22nd Judicial Circuit, Fayette Circuit Court, at Civil Case No. 11-CI-869, on February 16, 2011. On March 9, 2011, JPC and Sharma removed the case to the United States District Court for the Eastern District of Kentucky, and the case was assigned to the Honorable Jennifer B. Coffman.
On August 2, 2011, Judge Coffman issued a Memorandum and Order dismissing Plaintiff's claims against Sharma and transferring the case as against JPC to this Court. Since that time, the case appears to have remained locked at the pleading stage, with the Plaintiff successively seeking leave to amend his complaint to include additional allegations. That same course of litigation has brought this matter before this Court once again.
In the original complaint, Kearney alleged the following factual averments: On January 28, 2002, Kearney and JPC entered into a Sales Representation Agreement, whereby Kearney agreed to provide sales and marketing services for JPC. (Doc. 1-1.) Serving as a Sales Representative for JPC, Kearney was responsible for implementing a marketing program to sell JPC's products, including initiating business relationships with retailers within Kearney's geographic sales territory. Id. The agreement limits compensation for Kearney's services to "commissions on those sales made by the company which directly result from [Kearney's] introductions or other interventions." Id. Moreover, Kearney was to earn commissions under the agreement at a rate of ten percent of the total net payable invoices.*fn1 Id. Furthermore, the Agreement required JPC to provide samples at no cost to Kearney. Id. Finally, according to Agreement's terms, JPC would provide to Kearney a statement showing the calculation of "commissions paid, earned and/or reimbursed," on a monthly basis at the time of payment of commissions. Id. Kearney served as Sales Representative for JPC until August 6, 2010, when he claims that JPC terminated him because the company "decided to go with young female riders."
Subsequently, Kearney alleged that JPC failed to pay his ten percent commission on the "Petsmart account," instead paying him only five percent for the first four years. At that point, Kearney claimed that JPC converted the Petsmart account into a "house account," and thus paid him no commissions whatsoever. Kearney also alleges that JPC "sold direct" to a number of Kearney's customers in order to avoid paying Kearney a commission as required under the Agreement. Finally, Kearney alleged "unlawful dismissal," "mental anguish," and punitive claims. (Id.)
JPC moved to dismiss the complaint on September 16, 2011. (Doc. 30.) Following briefing on the motion, we issued a report and recommendation in which we recommended that the District Court dismiss all of Kearney's claims except for those claims alleging breach of contract. (Doc. 42.) On March 26, 2012, the District Court entered an order adopting the report and recommendation, and dismissed all claims other than Plaintiff's claims for breach of contract, but did so without prejudice to the Plaintiff endeavoring to amend his complaint if he believed he had viable legal claims other than those for breach of contract. (Doc. 48.)
On April 16, 2012, Kearney filed two motions, seeking leave to add Varun Sharma as a Defendant pursuant to Rule 20 of the Federal Rules of Civil Procedure authorizing joinder of parties, (Doc. 50.), and leave to file an amended complaint to include not only claims for breach of contract, but also claims for: fraud; violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"); negligent misrepresentation; breach of fiduciary duty and the implied covenant of good faith and fair dealing; tortious interference with contractual relations; and age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), (Doc. 51.).
In his motion in support of his proposed amended complaint, Kearney averred that he entered into a verbal employment agreement with JPC on January 28, 2002. According to Kearney, this agreement provided that all gross sales into Plaintiff's sales territory would be paid a commission of 10%, less shipping; no "house" accounts would be allowed; and no sales manager would be hired to oversee the sales territory. Several months later the contract was memorialized. (Doc. 1-1.) According to Plaintiff, when the parties entered into the oral agreement, JPC had no customers within Plaintiff's sales territory, and Kearney brought over 300 customers to JPC as a result of his efforts and his extensive contacts with potential customers in the field. (Doc. 51 ¶ 3.) Plaintiff claims that over eight years, he invested over $600,000 of his own money developing the sales territory into one that grossed approximately $1.3 million in sales per year. (Id. ¶ 4.)
Despite these apparent successes, Plaintiff claims that soon after the contract was signed, problems emerged. Plaintiff contends that sales to large retail customers were only paid a 5% commission as opposed to the 10% commission agreed upon. In addition, at least one other account was converted into a "house" account, and no commission was paid on the account. Likewise, sales of "certain items" to unspecified customers in 14 unspecified states were allegedly paid no commissions. (Id. ¶ 5.) Other customers within Plaintiff's sales territory were allegedly omitted from the commission reports, and no sales to these customers yielded the commissions that Plaintiff alleges he was owed.
Plaintiff claims that on August 6, 2010, with no notice, Defendant terminated Plaintiff's contract via a telephone call. According to Plaintiff, the reason JPC gave for ending the sales relationship was that the company had "decided to go with young girls" as sales agents. (Id. ¶ 7.) At the time, Plaintiff was 56 years old and his sales territory had shown a 22% growth in gross sales year over year. (Id.)
On the basis of the foregoing representations, and supplemental factual averments set forth in the proposed amended complaint, Plaintiff sought leave to bring claims against JPC and Varun Sharma for breach of contract, fraud, negligent misrepresentation, breach of fiduciary duty/implied duty of good faith, and tortious interference with contract. In addition, Plaintiff attempted to include new claims for alleged violations of RICO and the ADEA based upon the same alleged conduct. (Doc. 51.)
Upon careful consideration of Plaintiff's motions and the competing briefs, we found that Plaintiff's attempts to bring claims sounding in tort against JPC were unavailing. In contrast, we found that Plaintiff should be permitted to amend his complaint to include claims for breach of contract and age discrimination. We also found that Plaintiff failed to demonstrate why Varun Sharma should be joined as a Defendant in this action, since Plaintiff failed credibly to allege any actions that Mr. Sharma is claimed to have taken outside of his role as an executive with JPC, which is indisputably the party to the sales representative contract that provides the basis for Plaintiff's remaining colorable claims in this case. Accordingly, we recommended that Plaintiff's motions be granted in part and denied in part. In this regard, we recommended that Plaintiff's amended complaint be permitted to be filed, but only with respect to his claims against JPC for breach of contract and age discrimination. We recommended that the District Court decline to join Varun Sharma as a Defendant, or to permit Plaintiff to prosecute the various tort and RICO claims he sought leave to bring.
Undeterred, and instead of filing objections to the Court's report and recommendation, while the Court's report and recommendation remained pending before the District Court, Plaintiff sought leave yet again to file a second amended complaint. (Doc. 57.) The parties fully briefed this motion (Docs. 59, 60.), and the District Court declined to consider the request when ruling upon the Court's report and recommendation. Instead, the District Court entered an order adopting the Court's report and recommendation in toto, but referred Kearney's motion for leave to file a second amended complaint to this Court for initial consideration. (Doc. 61.)
Upon receipt of this referral, we promptly entered an order denying Kearney's motion for leave to file a second amended complaint, but directed Kearney to file an amended complaint, if he wished to do so, in accordance with the prior rulings of the Court by October 1, 2012. (Doc. 62.) Thereafter, Kearney filed a motion for leave to file a second amended complaint in order to include a claim against Varun Sharma individually for tortious interference with contractual relations, based upon allegations that Sharma interfered with Kearney's contractual relationships not in Sharma's capacity as CEO of JPC, but independently, through acts that denied both Kearney and JPC of the benefit of business opportunities arising out of Sharma's alleged importation of equestrian goods from India directly. (Doc. 65.) Kearney then filed two additional motions that seek substantially identical relief.*fn2 (Doc. 67, 68.)
JPC and Sharma have opposed the motions, maintaining that the Court has already ruled upon Kearney's request to add substantially similar claims against Varun Sharma, and found them legally deficient. In addition, Defendants argue that Kearney's proposed amendments merely restate the elements of the claim he attempts to bring, without sufficient factual averments, and, therefore, fails adequately to state a claim upon which relief can be granted. (Doc. 69.) In essence, Defendants urge the Court to find that Plaintiff's renewed motion is merely a rehash of Plaintiff's prior requests, which were found unavailing, and Defendants, therefore, request that the motion be denied. Defendants also suggest that Kearney's efforts to involve Sharma in this litigation are motivated by personal animus, and are not based upon a legitimate claim to legal relief. (Id.)
Kearney has filed a reply brief in which he provides citation to Pennsylvania legal authority regarding the elements of a claim for tortious interference with contract, and pointing to factual allegations which show that he is making a claim against Sharma in his individual capacity, and not as the CEO of JPC, and thus he argues that his renewed motion more clearly -- and adequately -- explains the factual and legal bases for the proposed amendment, which he contends he did not make sufficiently clear in his earlier motions. (Doc. 70.)
Upon consideration, we agree with Kearney that his specific request to amend his pleading to include a claim against Sharma for tortious interference with contractual relations for actions that Sharma allegedly took outside of his role as the chief executive of JPC has not been decided by this Court or the District Court. Furthermore, we agree with Plaintiff that he has made sufficient factual allegations in order to support this claim, at least at the pleading stage. We also disagree with Defendants that Kearney has improperly attempted to "recapitulate the same untenable legal arguments ... previously put forth in Plaintiff's earlier motions," (Doc. 69, at 1.), since Plaintiff's proposed second amended complaint does not include any claim that the Court has previously found unavailing, and because Plaintiff has included new factual allegations in support of his proposed claim for tortious interference with contractual relations against Varun Sharma in an effort to show that Sharma was acting independently from his capacity as CEO of JPC when he tortiously interfered with Plaintiff's contractual relations. Therefore, we will ...