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July 6, 2004.

JOSEPH F. CREAN, Plaintiff,
CP KELCO, Defendant.

The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District



  On December 12, 2002, Plaintiff filed a complaint alleging that Defendant breached an employment contract it had with him. On February 27, 2003, Defendant filed two counterclaims seeking monetary damages for unjust enrichment and for breach of the same contract. Presently before the Court is Defendant's motion for summary judgment.


  Plaintiff, a resident of Edinburg, New York, founded a business consulting firm in 1994. In late 2000 and early 2001, he commenced negotiations to begin working as a full-time employee for Defendant, a relatively new company formed as the result of a merger between Hercules Inc. and Monsanto Co. According to Plaintiff, he did not approach Defendant. Rather, Harry Tucci, who was then Defendant's President and CEO, solicited him as a potential employee.

  On May 21, 2001, Mr. Tucci sent Plaintiff a letter agreement which outlined the terms of an offer for a senior vice president position.*fn1 The letter agreement, which had a signature line that Plaintiff signed, also referred to a contract, which Mr. Tucci stated that he would send at a later date.

  Plaintiff, who was living in Upstate New York during the negotiation period, accepted Defendant's offer and began planning to relocate permanently to Defendant's offices in Wilmington, Delaware. He began work on June 25, 2001, and Mr. Tucci left Defendant's employ very shortly thereafter. Plaintiff contends that, within a few days of his arrival, several executives, including John Falcetta, Senior Vice President of Human Resources, and Robert Toth, the new President, implied or directly stated that they no longer needed Plaintiff's services but believed that his employment contract was binding. According to Plaintiff, the executives then began an organized campaign to discredit his work, demote him, and eventually force him out of the company. Plaintiff resigned on August 22, 2001.

  After Plaintiff filed suit, Defendant asserted two counterclaims. Defendant counterclaimed on a theory of unjust enrichment for the return of $10,000.00, which it had paid to Plaintiff to cover his expenses in moving from New York to the Philadelphia area. Defendant also counterclaimed in the amount of $49,601.97 for breach of contract, contending that Plaintiff "forfeited his salary and other compensation received during the period of his employment." See Defendant's Answer and Counterclaims at ¶¶ 65-71.


  A. Summary Judgment Standard

  A court should grant a motion for summary judgment only if "there is no genuine issue as to any material fact and when, based upon facts not in dispute, the moving party is entitled to judgment as a matter of law." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). In making this determination, the court must resolve all ambiguities and draw all reasonable inferences in a light most favorable to the non — moving party. See id. (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam)).

  With these standards in mind, the Court will address each of Plaintiff's claims.

  B. Existence of a Contract Between the Parties*fn2

  New York courts consider several factors in deciding whether a preliminary agreement binds the parties to the agreement, including whether one party has expressly reserved the right not to be bound in the absence of a writing, whether the parties have partially performed a contract, whether the parties have agreed to all the terms of a potential contract, and whether contracting parties would customarily commit that particular type of contract to writing. See Adjustrite Sys., Inc. v. GAB Bus. Servs., Inc., 145 F.3d 543, 549 (2d Cir. 1998) (quotation and other citation omitted). These factors help courts to determine whether the parties to the preliminary agreement intended that the agreement would bind them, which is necessary for the formation of a contract. See id. With regard to employment contracts, the parties can create a contract with relatively little formality; the contract need only contain "all ...

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