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Jason Auerbach v. Wells Fargo Home Mortgage

May 16, 2012

JASON AUERBACH, PLAINTIFF,
v.
WELLS FARGO HOME MORTGAGE, INC., DEFENDANT.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:

OPINION & ORDER

Plaintiff Jason Auerbach brings this claim against his former employer, defendant Wells Fargo Home Mortgage, Inc. ("Wells Fargo"), alleging that Wells Fargo wrongfully withheld various forms of bonus compensation in breach of Auerbach's employment agreement. Pursuant to an Opinion and Order issued on March 29, 2011, by the Hon. Richard J. Holwell, to whom this case was then assigned, Auerbach's only remaining claim is for breach of contract. That claim relates to certain bonuses to which Auerbach was entitled, based on loans funded prior to his termination on July 23, 2009, but which he alleges were not paid. Wells Fargo now moves for summary judgment on that claim. For the reasons that follow, Wells Fargo's motion is granted, except as to $7,550.20, which the evidence shows (and Wells Fargo concedes) it owes Auerbach, as to which summary judgment is entered for Auerbach.

I.Factual Background

The Court adopts the facts as set out in Judge Holwell's March 29, 2011 Opinion and Order ("March 29, 2011 Opinion"), granting in part and denying in part Wells Fargo's motion for judgment on the pleadings. See Bader v. Wells Fargo Home Mortg., Inc., 773 F. Supp. 2d 397, 403--06 (S.D.N.Y. 2011). The Court assumes familiarity with those facts.

In summary, Auerbach joined Wells Fargo as a private mortgage banker in 2003; by 2005 he had been promoted to a sales manager in the New York office. Auerbach was, by all accounts, a highly successful sales manager, and in 2008 the Manhattan branch, under Auerbach's leadership, was awarded President's Club status as one of the most profitable branches in America. As a sales manager, between 2005 and 2009, Auerbach was eligible to receive various forms of incentive compensation in addition to his base salary, including, as relevant here, compensation based on the monthly volume of loans funded by employees reporting directly and indirectly to Bader ("Volume Overrides"), commissions based on monthly loan volume, President's Club bonuses, and partnership bonuses.

During the time period at issue in 2009, Auerbach was entitled to these types of incentive compensation pursuant to the Wells Fargo Home Mortgage 2007 Incentive Compensation Plan for Private Mortgage Banking Branch Sales Manager (the "2007 Compensation Plan"), the Wells Fargo Home Mortgage 2009 Incentive Compensation Plan for Private Mortgage Banking Branch Sales Manager (the "2009 Compensation Plan"), the President's Club addendum to the 2009 Compensation Plan, and the Wells Fargo Home Mortgage 2008 Partner Bonus Plan for Private Mortgage Bankers and Producing Sales Managers (the "Partner Bonus Plan"). See Affidavit of Mark Faktor ("Faktor Aff.") Exs. 1, 2, 20 (Dkt. 33); Affidavit of Edward Thomas ("Thomas Aff.") Ex. G (Dkt. 40). The 2007 Compensation Plan applied, during the relevant period, up to and including March 31, 2009; the 2009 Compensation Plan applied, during the relevant period, beginning April 1, 2009 and thereafter. See Faktor Aff. Ex. 1 at 1 [hereinafter 2009 Plan]. During the relevant period Auerbach was co-branch manager with Jeff Szymanski, the other co- branch manager. See Auerbach Dep. 28:16--30:6. During the relevant period, the branch's commissions, profits, and losses were divided 50/50 between Auerbach and Szymanski. Id.

On July 23, 2009, Wells Fargo terminated Auerbach's employment.

II.Procedural History

On February 24, 2010, Auerbach brought suit in New York Supreme Court, New York County, asserting claims for breach of contract, breach of implied contract, quantum meruit, promissory estoppel, and violation of New York State Labor Law § 193. See Compl. (Dkt. 1). In his Complaint, Auerbach alleged that he was entitled to various kinds of incentive compensation, including, inter alia, Volume Overrides, commissions, President's Club bonuses, partnership bonuses, severance pay, and unreimbursed expenses. On March 26, 2010, Wells Fargo filed a notice of removal to this Court.

On July 6, 2010, Wells Fargo moved to dismiss the Complaint under Federal Rule of Civil Procedure 12(b). On March 29, 2011, Judge Holwell granted Wells Fargo's motion as to all claims, with the exception of Auerbach's breach of contract claim as to (1) Volume Override bonuses, to the extent Auerbach demonstrates there are any eligible loans that funded prior to his July 23, 2009 termination, (2) commissions, to the extent Auerbach demonstrates there are loans that funded prior to his termination or 30 days after his termination, unless the termination was for misconduct, (3) President's Club bonuses, to the extent Auerbach demonstrates there are loans that funded prior to his termination or 30 days after his termination, unless the termination was for misconduct, (4) partnership bonuses, (5) a severance pay package, and (6) unpaid reimbursable expenses. On June 21, 2011, Wells Fargo filed its answer as to the remaining claims in the Complaint.

On June 30, 2011, Wells Fargo served on Auerbach a request for the production of documents and a first set of interrogatories. See Def.'s Mot. at 6 (Dkt. 39). Auerbach responded and produced responsive documents. On July 5, 2011, Auerbach served on Wells Fargo a request for the production of documents and a first set of interrogatories. Id. Wells Fargo, in turn, responded and produced responsive documents. On August 30, 2011, Wells Fargo deposed Auerbach.

On August 31, 2011, the discovery period ended. During the discovery period, Auerbach did not serve any notices of deposition, nor did he depose any of Wells Fargo's witnesses. See Def.'s Mot. at 6. On November 21, 2011, a pre-motion conference was held. On January 9, 2012, Wells Fargo moved for summary judgment on Auerbach's remaining claim.

III.Discussion

A.Summary Judgment Standard

To prevail on a motion for summary judgment, the movant must "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts "in the light most favorable" to the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008). The movant may discharge its burden by demonstrating that there is insufficient evidence to support the opposing party's claim, for which it bears the burden of proof at trial. See Celotex, 477 U.S. at 322--23.

Once the moving party has adduced facts demonstrating that the opposing party's claims cannot be sustained, in order to survive the summary judgment motion, the opposing party must establish a genuine issue of fact by "citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted); see also FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) ("[T]he non-moving party must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation.") (citation and internal ...


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