United States District Court, D. Massachusetts
JUSTIN B. SULLIVAN, Plaintiff,
MEMORANDUM CONCERNING DENIAL OF MOTION [#119] FOR
RECONSIDERATION REGARDING THE COOK AGREEMENT
DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE.
Justin B. Sullivan, a former employee of Dumont Aircraft
Charter, LLC, brings this lawsuit against his former
employer, its affiliate, Dumont Aviation, LLC, and the owner
of the businesses, Kevin Wargo (together “Dumont”
or “the Defendants”), for their alleged failure
to pay him for work he performed. On March 7, 2019, I granted
in part and denied in part the parties' cross-motions for
summary judgment regarding various counts. See Sullivan
v. Dumont Aircraft Charter, LLC, 364 F.Supp.3d 63 (D.
Defendants filed a motion [Dkt. No. 119] seeking
reconsideration of my judgment with respect to Mr.
Sullivan's common law breach of contract claim regarding
the Cook aircraft commissions. At the final pretrial
conference, I denied the motion for reconsideration in a
ruling from the bench. This Memorandum sets forth in writing
the reasons for my decision.
factual background relevant to the motion was discussed in
some detail in my original memorandum and order dealing with
the parties' cross-motions for summary judgment, see
Sullivan, 364 F.Supp.3d at 70-76. I recount here only
the factual basis for Mr. Sullivan's breach of contract
claim as relevant to the Cook aircraft commissions.
August 2015, three months before Mr. Sullivan became an
employee of Dumont, he introduced a customer named Gregg Cook
to Mr. Wargo. Following the introduction, Mr. Sullivan and
Dumont agreed (the “Cook Agreement”) that, if Mr.
Cook purchased an aircraft from Dumont, Dumont would pay Mr.
Sullivan a commission of $50, 000 plus 5% of future charter
sales on the aircraft. Sullivan, 364 F.Supp.3d at
71. This oral agreement was not memorialized in writing and
was not explicitly incorporated into any separate
arrangements between the parties or into the Term Sheet
regarding Mr. Sullivan's employment by Dumont, which the
parties concluded in October 2015 (the “Employment
Agreement”). Id. at 71-72. The Cook Agreement
did not identify any further responsibilities, conditions, or
duties that Mr. Sullivan needed to perform to be entitled to
a Cook aircraft commission and did not include a specific end
date for residual commissions. Id. at 71. In summary
judgment submissions, the parties did not contest the terms
of this oral agreement or otherwise argue that it had somehow
Cook did, in fact, agree to purchase an aircraft from a
subsidiary of the Dumont Group in August 2015; the sale was
completed in November 2015 and the Cook aircraft remained in
Dumont's charter fleet until August 22, 2017.
November 6, 2015, a few days after Mr. Sullivan formally
started his employment with Dumont, Dumont paid Mr. Sullivan
the $50, 000 commission owed on the Cook Aircraft.
Id. On December 31, 2015, Ms. Sullivan received his
first residual commission payment in the amount of $3, 772
for revenue generated by the Cook Aircraft in November.
Id. He received his second residual payment of $11,
527.78 for revenue generated in December 2015 on January 31,
2016. Id. Both these payments were paid as W-2 wages
with the applicable withholdings.
Sullivan did not receive any further residual payments for
the Cook aircraft, though it remained in operation as part of
Dumont's charter fleet until August 2017. Mr. Sullivan
voluntarily terminated his employment with Dumont on February
16, 2016 and, as part of that termination, agreed to part
ways with no past or future monetary obligations owed by
either side. Sullivan, 364 F.Supp.3d at 75-76. At
the time, Mr. Sullivan did not mention being owed any
residual commissions and the parties did not mention their
separate agreement with respect to the Cook aircraft.
April 13, 2016, Mr. Sullivan filed this action alleging
violations of the Massachusetts Wage Act (“Wage
Act”), M.G.L. c. 149 § 148, the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 207,
common law breach of contract, and unjust enrichment and
a hearing regarding the parties' cross motions for
summary judgment, Mr. Sullivan conceded that the Cook
Agreement was concluded before Mr. Sullivan became an
employee of Dumont and therefore fell outside the scope of
his claims under the Wage Act and the FLSA. Id. at
78-79 n. 6. Consequently, I considered only whether
Dumont's failure to pay Mr. Sullivan any residual
payments for revenue generated by Cook aircraft commissions
after December 2015 constituted a breach of contract
independent of the Employment Agreement. Id. at 88
n. 14. In doing so, I concluded that the Cook Agreement had
not been superseded by or incorporated into the Term Sheet
which provided the basis for the Employment Agreement; the
parties concededly provided no evidence to the contrary.
Id. at 89.
concluded that, under the terms of the Cook Agreement, Mr.
Sullivan was entitled to receive residual payments for
revenue generated by the Cook Aircraft after December 2015.
Because the Cook Agreement did not specify an end date and
because Dumont pointed to no record evidence indicating that
the parties agreed to terminate the Cook Agreement, Mr.
Sullivan was entitled to unpaid commissions on the Cook
Aircraft through August 22, 2017. Id. at 89. I
granted summary judgment to Mr. Sullivan as to liability ...