United States District Court, S.D. Georgia, Augusta Division
RANDAL HALL, CHIEF JUDGE UNITED STATES DISTRICT COURT
resigning as President of Paine College, George Bradley
offered Plaintiff a four-year employment contract with Paine
College, which Plaintiff accepted. Bradley and Plaintiff then
signed an addendum to the contract, intending to give
Plaintiff a severance package. Paine College soon thereafter
fired Plaintiff, and Plaintiff filed this lawsuit seeking the
money he claims he was owed under the contract. The parties
now move for summary judgment. (Docs. 54, 57, 66.) The Court
GRANTS IN PART AND DENIES IN PART
Defendants' motion, and DENIES
hired Plaintiff in 2008 to be Paine College's Vice
President of Institutional Development. His title was later
changed to Vice President of Institutional Advancement and
then to Senior Vice President of Institutional Advancement.
Plaintiff was responsible for fundraising for Paine College
and reported directly to Bradley. Each year, Plaintiff
received and signed letters from Bradley offering Plaintiff
one-year employment contracts. (See, e.g., Doc. 87-7
at 16-22.) Bradley typically sent Plaintiff offer letters
near the end of the fiscal year on June 15. (See,
e.g., id.) In some of the years Plaintiff was
employed at Paine College, including in 2013, Plaintiff's
contracts specifically designated him an at-will employee.
(See, e.g., Doc. 87-3 at 181.)
2014, however, Bradley shook things up: he offered Plaintiff
a four-year contract that did not contain the typical at-will
language. (Doc. 87-7 at 10.) Then, in September 2014, Bradley
offered Plaintiff an addendum to the July 2014 contract.
(Id. at 12.) The addendum states that Plaintiff is
entitled to a "severance package or
compensation for any premature termination" in the
amount owed "under the terms of the contract that was
agree[d] to and signed on July 23, 2014." (Id.
at 12.) It also states that the agreement "will be
subject to the laws I and Jurisdiction of the Courts in the
State of South Carolina." (Id., ) Bradley
offered other employees similar four-year contracts.
(See Doc. 96-1 at 42-43.)
same day Bradley and Plaintiff signed the addendum, Bradley
resigned from his position, and Samuel Sullivan became Acting
President of Paine College. (Doc. 87-7 at 3; Doc. 87-8 at 3.)
Three weeks later, Sullivan wrote Plaintiff explaining that,
in his view, Plaintiff's July 2014 contract and the
accompanying addendum were unenforceable and that he was
eliminating the position of Senior Vice President of
Institutional Advancement. (See Doc. 87-9 at 6-9.)
Sullivan proposed reinstating Plaintiff as Vice President of
Institutional Advancement and attached a formal offer letter,
offering Plaintiff a reduced salary and returning him to an
at-will position. (Id. at 10-11.) Plaintiff rejected
Sullivan's offer, and Sullivan terminated Plaintiff's
employment on October 9, 2014. (Doc. 87-3 at 187.)
filed this lawsuit in October 2014 in South j Carolina state
court, and Defendants timely removed the case to the District
Court for the District of South Carolina. (See Doc.
1.) Defendants then moved to transfer the case to this Court.
(Doc. 10.) The South Carolina District Court granted
Defendants' request and transferred the case in March
2015. (Doc. 18.) The parties now move for summary judgment.
judgment is appropriate only if "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a). Facts
are "material" if they could affect the outcome of
the suit under the governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court
must view the facts in the light most favorable to the
non-moving party, Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986), and must draw
"all justifiable inferences in [its] favor."
United States v. Four Parcels of Real Prop., 941
F.2d 1428, 1437 (11th Cir. 1991) (en banc) (internal
punctuation and citations omitted).
moving party has the initial burden of showing the Court, by
reference to materials on file, the basis for the motion.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
How to carry this burden depends on who bears the burden of
proof at trial. Fitzpatrick v. City of Atlanta, 2
F.3d 1112, 1115 (11th Cir. 1993) . When the non-movant has
the burden of proof at trial, the movant may carry the
initial burden in one of two ways - by negating an essential
element of the non-movant's case or by showing that there
is no evidence to prove a fact necessary to the
non-movant's case. See Clark v. Coats & Clark,
Inc., 929 F.2d 604, 606-08 (11th Cir. 1991) (explaining
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)
and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)).
Before the Court can evaluate the non-movant's response
in opposition, it must first consider whether the movant has
met its initial burden of showing that there are no genuine
issues of material fact and that it is entitled to judgment
as a matter of law. Jones v. City of Columbus, 120
F.3d 248, 254 (11th Cir. 1997) (per curiam). A mere
conclusory statement that the non-movant cannot meet the
burden at trial is insufficient. Clark, 929 F.2d at
and only if - the movant carries its initial burden, the
non-movant may avoid summary judgment only by
"demonstrat[ing] that there is indeed a material issue
of fact that precludes summary judgment." Id.
When the non-movant bears the burden of proof at trial, the
non-movant must tailor its response to the method by which
the movant carried its initial burden. If the movant presents
evidence affirmatively negating a material fact, the
non-movant "must respond with evidence sufficient to
withstand a directed verdict motion at trial on the material
fact sought to be negated." Fitzpatrick, 2 F.3d
at 1116. If the movant shows an absence of evidence on a
material fact, the non-movant must either show that the
record contains evidence that was "overlooked or
ignored" by the movant or "come forward with
additional evidence sufficient to withstand a directed
verdict motion at trial based on the alleged evidentiary
deficiency." Id. at 1117. The non-movant cannot
carry its burden by relying on the pleadings or by repeating
conclusory allegations contained in the complaint. See
Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981).
Rather, the non-movant must respond with affidavits or as
otherwise provided by Federal Rule of Civil Procedure 56.
action, the Clerk of the Court gave the parties notice of the
motions for summary judgment and informed them of the
summary-judgment rules, the right to file affidavits or other
materials in opposition, and the consequences of default.
(Docs. 56, 67.) The notice requirements of Griffith v.
Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per
curiam), are thus satisfied. The time for filing materials in
opposition has expired, and the motion is now ripe for
complaint, Plaintiff asserts five claims: (1) breach of
contract; (2) breach of contract accompanied by a fraudulent
act; (3) a claim for back wages under S.C. Code Ann.
41-10-50; (4) negligent misrepresentation; and (5) breach of
fiduciary duty. Plaintiff contends that the Court should
apply South Carolina law, and Defendants urge the Court to
apply Georgia law. Plaintiff moves for summary judgment on
two of his claims, and Defendants move for summary judgment
on all of Plaintiff's claims. Below, the Court addresses
the choice-of-law issue and the merits of the parties'
arguments. A. Choice of Law As noted,
Plaintiff and Bradley signed an addendum to the July 2014
contract that states that the contract "will be subject
to the laws and Jurisdiction of the Courts in the State of
South Carolina." (Doc. 87-7 at 12.) Plaintiff thus
argues that the Court should apply South Carolina law.
Defendants, on the other hand, contend that the addendum is
unenforceable because it was not supported by consideration.
They argue therefore that choice-of-law principles require
the Court to apply Georgia law.
choice-of-law provision does not determine the law a court
should apply "until it is determined that the parties
have agreed to and are bound by" the provision.
Schnabel v. Trilegiant Corp., 697 F.3d 110, 119 (2d
Cir. 2012). Applying a choice-of-law provision before
determining its validity "would presume the
applicability of a provision before its adoption by the
parties has been established." Id.; see
Trans-Tec Asia v. M/V Harmony Container, 518 F.3d 1120,
1124 (9th Cir. 2008) ("[W]e cannot rely on the choice of
law provision until we have decided, as a matter of law, that
such a provision was a valid contractual term and was
legitimately incorporated into the parties contract.").
In deciding the validity of a choice-of-law provision, courts
apply the law of the forum state. See Daugherty v. MAPCO
Express Co., No. 1:10-CV-2092-KOB, 2012 WL 2357732, at
*14 (N.D. Ala. June 19, 2012). The Court thus evaluates
whether the addendum was supported by consideration under
Georgia law, any modification to a contract must be supported
by new consideration. Lotus Prop. Dev., LLC v.
Greer, 630 S.E.2d 112, 114 (Ga.Ct.App. 2006) (holding
that an agreement to allow a party additional time to close a
real-estate deal was not a valid modification to the original
contract because there was no "consideration that was in
addition to and separate from the consideration given for the
I original contract"); Ranger Constr. Co. v.
Robertshaw ControlsCo., 305 S.E.2d 361, 363