United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR
RELIEF UNDER FED. R. CIV. P. 59(E)
Dennis Saylor IV United States District Judge.
a dispute between a solar-energy company and a former sales
employee over unpaid commissions. Plaintiff Stephen Ellicott
brought suit against American Capital Energy, Inc. and its
two principals, Thomas Hunton and Arthur Hennessey, alleging
a violation of the Massachusetts Wage Act, Mass. Gen. Laws
ch. 149, § 148, and breach of contract. On February 6,
2017, following a jury trial, the Court issued a judgment in
favor of plaintiff on both counts. Defendants have moved to
alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e).
For the following reasons, defendants' motion will be
American Capital Energy, Inc. (“ACE”), sells
large-scale solar-energy projects to commercial clients.
Plaintiff Stephen Ellicott is a former sales employee at ACE.
Defendants Thomas Hunton and Arthur Hennessey are principals
of ACE. Hunton is ACE's president and Hennessey is
April 2, 2014, Ellicott brought this action seeking
compensation for unpaid commissions. The complaint alleged
two counts under Massachusetts state law, claiming a
violation of the Massachusetts Wage Act, Mass. Gen. Laws ch.
149, § 148, and breach of contract.
case was tried in January 2017 to a jury. Ellicott offered
evidence that he had a written contract with ACE that
provided for a commission of 40% of the profit margin on each
“sale” he made, and stated that his commission
“may be reasonably split with various sales support
personnel by mutual agreement.” The parties stipulated
that Ellicott was involved in the sale of nine solar
installation projects while employed with ACE, eight of which
made a profit. Among other things, the parties disputed
whether Ellicott made a “sale” on each of those
projects entitling him to a 40% commission, and how the
commission should be calculated if any was due. All but one
of the projects were sold more than three years prior to the
filing of the lawsuit.
close of evidence, defendants moved for a directed verdict on
the Wage Act claim on the basis that the Act does not apply
to commissions based on profit. (Docket No. 183).
January 24, 2017, the Court charged the jury. The jury was
instructed that under the Wage Act, “[t]he third
element that the plaintiff must prove . . . is that the
employer failed to pay him the wages he earned in a timely
manner.” The jury was further instructed under the
heading of “damages” that “[i]f you find
any of the defendants are liable under the Wage Act, you must
determine the amount of wages that the plaintiff earned, but
has not been paid.”
verdict form listed the three defendants separately for
liability and damages. The form asked, as to each defendant,
“If you found that [the relevant defendant] is liable
under the Massachusetts Wage Act, what amount of damages do
you award against that defendant as to that claim?”
(Docket No. 189). Initially, the jury returned a verdict form
that found all three defendants were liable under the Wage
Act. However, the jury found ACE liable for $958, 830 and
each of the individual defendants liable for $0.
conferring with the parties at sidebar, the Court instructed
the jury that for the individual defendants to be held
liable, there has to be a wage due and payable for some
amount greater than zero. The Court directed the jury to
reconsider its answers concerning liability and damages owed
by the individual defendants to make the verdict form
jury returned a second verdict form that found ACE liable for
$758, 830 and each of the individual defendants liable for
$100, 000. Defendants immediately moved for a mistrial. That
motion was denied.
February 2, 2017, defendants again moved for a mistrial and
for judgment notwithstanding the verdict. In the motion for a
mistrial, defendants argued that the Court erred in making
rulings in limine concerning whether Ellicott was
obligated to split commissions with sales support staff. In
the motion for judgment notwithstanding the verdict,
defendants again argued that the Wage Act does not apply to
commissions. The Court denied both motions.
February 6, 2017, the Court issued a judgment in favor of
plaintiff on both counts pursuant to the second verdict form.
On the Wage Act claim, the judgment ordered that damages be
awarded against ACE in the amount of $758, 830, trebled
pursuant to Mass. Gen. Laws ch. 149, § 150, for a total
sum of $2, 276, 490. It ordered damages against each of the
individual defendants in the amount of $100, 000, trebled for
a total sum of $300, 000, plus joint and several liability
for the amount ...