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OOST-LIEVENSE v. NORTH AMERICAN CONSORTIUM

July 2, 1997

WILLEM OOST-LIEVENSE, Plaintiff against NORTH AMERICAN CONSORTIUM, P.C., NORTH AMERICAN PARTNERS, L.P., and SOHRAB VAHABZADEH, Defendants.


The opinion of the court was delivered by: BAER

 HAROLD BAER, JR., District Judge:

 Plaintiff moves for leave to amend his complaint and for partial summary judgment. Defendants cross-move for summary judgment. For the reasons discussed below, plaintiff's motion for leave to amend his complaint is GRANTED, plaintiff's motion for summary judgment is GRANTED in part and DENIED in part, and defendants' motion for summary judgment is GRANTED in part and DENIED in part.

 BACKGROUND

 Plaintiff Willem Oost-Lievense brings this action for breach of an employment agreement and for enforcement of his rights as a third-party beneficiary of a Stock Purchase Agreement ("SPA"). The SPA was entered into between defendants North American Consortium, Inc. ("NACI") and North American Partners, L.P. ("NAP") on the one hand and First Capital Asset Management, Inc. ("FCAM") on the other. Pursuant to the SPA, NACI and NAP were to purchase for $ 4.5 million 35% of the common stock of a Delaware corporation to be formed as a wholly-owned subsidiary of FCAM ("FCAM-DE"). FCAM-DE was to be composed of certain subsidiaries of FCAM. Defendant Sohrab Vahabzadeh signed the SPA on behalf of both NACI and NAP, and individually.

 Plaintiff's connection to the above events is as follows. He was employed as chairperson and CEO of ABN AMRO Securities (USA) ("ABN") when he learned of the impending deal. Subsequently, he was offered employment as president and CEO of FCAM-DE in a letter dated September 15, 1993 (the "September Offer"). The September Offer laid out basic terms of employment, including an annual base salary of $ 235,000, a guaranteed bonus payable at the end of the FCAM's first fiscal year, participation in a profit sharing plan, options to buy company stock and health insurance. The September Offer was on FCAM letterhead and was signed by defendant Vahabzadeh and by Hassan Nemazee, as "Directors" of FCAM-DE. The offer was specifically conditioned on "consummation of the [SPA] and . . . execution of a definitive employment agreement." No such "definitive" agreement was ever reached. There is no dispute, however, that plaintiff resigned from his position at ABN in order to accept employment at FCAM-DE.

 Plaintiff's claim of an employment agreement rests not only on the September Offer, but also on the SPA itself. The SPA specifically mentions plaintiff on four occasions and provides that: (1) at Closing, FCAM will deliver to NACI and NAP an executed employment agreement with plaintiff, but the absence of such an agreement will not postpone the Closing, SPA P 1.4(a)(ii); (2) FCAM will negotiate an employment agreement with plaintiff in good faith, such agreement to include the terms set forth in the September Offer, SPA P 4.1(e); (3) plaintiff, or a representative chosen by defendant Vahabzadeh, will serve as one of FCAM-DE's Directors, SPA P 5.1(d); and (4) certain stock will be set aside to meet FCAM-DE's obligations under the employment agreement with plaintiff. Finally, plaintiff also relies on a July 20, 1993 letter from NACI to FCAM (the "July letter"), describing the outline of the SPA and referring to the fact that "NACI will encourage [plaintiff] to accept the position of CEO of FCAM-DE."

 From the above documents, plaintiff has asserted three causes of action: (1) breach of an employment agreement comprised of the July letter, the September Offer and the SPA, (2) enforcement of his rights as a third-party beneficiary of the SPA and (3) breach of an employment agreement reflected in the September Offer. Plaintiff has moved for summary judgment on his second and third claims and to dismiss certain of defendants' affirmative defenses. Plaintiff also moves for leave to file his amended complaint, which differs from the original complaint in that it alleges that defendant Vahabzadeh is vicariously liable for the liabilities of NAP and NACI under various theories. Defendants have cross-moved for summary judgment on all of plaintiff's claims.

 DISCUSSION

 I. Motion to Amend

 Fed. R. Civ. P. 15(a) provides that "leave [to amend a complaint] shall be freely given when justice so requires." Though defendants make a general assertion of prejudice in light of the lateness of plaintiff's proposed amendment, they do not identify any particular manner in which they will be prejudiced. Moreover, the vicarious liability theories were pled in the State Court Action and the parties have stipulated that discovery from that action shall be available in this case as well. Defendants therefore cannot claim surprise or prejudice in light of the new theories of liability. Accordingly, plaintiff's motion for leave to amend his complaint is GRANTED.

 II. Collateral Estoppel--Defendants' Affirmative Defenses

 Plaintiff argues that defendants are collaterally estopped from asserting their first two affirmative defenses because the same defenses were asserted--and rejected by the court--in the State Court Action. Defendants fail to address the collateral estoppel argument, stating only that ...


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