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Birnbach v. Antenna Software, Inc.

United States District Court, D. Massachusetts

June 26, 2014

DAVID BIRNBACH, Plaintiff,
v.
ANTENNA SOFTWARE, INC., Defendant.

MEMORANDUM AND ORDER ON MOTION TO DISMISS

F. DENNIS SAYLOR, IV, District Judge.

This case involves a dispute arising out of a termination of employment. Plaintiff David Birnbach alleges that his former employer, defendant Antenna Software, Inc., failed to pay commissions and severance owed to him when he was terminated by the company. The complaint alleges claims under the Massachusetts Wage Act and for breach of contract, unjust enrichment, quantum meruit, and wrongful termination. Jurisdiction is based on diversity of citizenship.

Defendant has moved to dismiss, in part, Counts 1, 2, and 3 of the amended complaint. Plaintiff does not oppose the motion as to the commission-related portions of Counts 1 and 3, but opposes the motion as to Count 2. For the reasons set forth below, the motion will be granted.

I. Background

The following facts are presented as stated in the complaint.

David Birnbach is a citizen of Massachusetts. Antenna Software, Inc., is a Delaware corporation with a principal place of business in New Jersey.

In August 2003, Vaultus Mobile Technologies, Inc., a mobile software company, hired Birnbach as Senior Vice President of Sales and Marketing. Birnbach signed an employment agreement that provided that "[i]n the event that your employment is terminated by the Company without Cause..., you shall be entitled to be continued to be paid your then current salary for a period of three (3) months following such termination, as and when the same would otherwise have been payable to you (the Severance Period')." In 2004, Vaultus promoted Birnbach to Chief Executive Officer.

On March 29, 2010, Antenna Software, Inc., acquired Vaultus. Vaultus became a wholly-owned subsidiary of Antenna Software, operating under the name Antenna Vaultus. The Chief Executive Officer of Antenna Software offered to pay Birnbach more favorable terms for commissions than the company's standard commission plan in order to induce him to remain with the company. Birnbach agreed to become Vice President of Sales for Antenna Vaultus under the terms of the "David Birnbach Salary and Sales Incentive Compensation Plan." ( See Compl., Ex. A). The Compensation Plan provided, among other things, for twelve weeks of severance pay at 100 percent of base salary and six months of health care coverage in the event that Antenna Software terminated Birnbach's employment without cause. It also included rates for commissions and provided that Antenna Software would pay him commissions "even if [Birnbach] is involuntarily terminated." (Compl., Ex. A at 3).

From March 29, 2010, to April 4, 2011, Birnbach closed a number of deals, the total contract value of which was approximately $5.9 million.

On April 4, 2011, executives from Antenna Software informed Birnbach that it was terminating him without cause. According to the complaint, Birnbach was very close to closing a lucrative deal with PNC Bank on which he had worked for five months. Within weeks of Birnbach's termination, Antenna Software did in fact close the deal.

On June 29, 2011, Birnbach, through his attorney, sent a letter to Antenna Software's CEO requesting payment of wages owed to him. From June 2012 to September 2013, Birnbach received monthly commission checks from Antenna Software that totaled $39, 982.97. However, Antenna Software did not pay any severance, and Birnbach has calculated that it still owes him $399, 551 in commissions.

On April 2, 2014, plaintiff Birnbach submitted a complaint for unpaid wages with the Office of the Attorney General, and filed a complaint in this Court against defendant Antenna Software. On April 29, 2014, he filed an amended complaint.

On May 13, 2014, defendant moved to dismiss Counts 1 and 3 as they relate to commissions from the PNC Bank deal, which plaintiff does not ...


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