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WSP USA Corp. v. Marinello

United States District Court, Second Circuit

December 18, 2013

WSP USA CORP., Plaintiff,


P. KEVIN CASTEL, District Judge.

Plaintiff WSP USA Corp. ("WSP") brings claims for relief against John Marinello, its former director of information technology. Among other alleged misconduct, it asserts that, upon Marinello's voluntary departure from WSP, he appropriated and retained confidential company information in violation of the parties' Separation Agreement and General Release executed by the parties (the "Agreement"), shared that information with his new employer, and personally retained valuable electronics equipment that belongs to WSP. Marinello moves to dismiss the Complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P., arguing that a general release provision in the Agreement bars WSP's claims in their entirety. (Docket 9.)

The Agreement's release provision includes broad language that governs known and unknown claims that were in existence at the time of the Agreement's execution. Because WSP's claims for breach of contract, misappropriation of trade secrets and conversion did not arise until after the Agreement's execution, they are not barred by the release, and the motion to dismiss these claims is denied. The motion to dismiss is granted as to WSP's defamation claim and its accounting claim.


In reviewing the Complaint, the Court accepts all non-conclusory factual allegations as true, and draws every reasonable inference in favor of the plaintiff as the nonmovant. See In re Elevator Antitrust Litig. , 502 F.3d 47, 50 (2d Cir. 2007) (per curiam). The Agreement, including the release provision, is annexed to the Complaint at Exhibit A, and is properly considered on a motion to dismiss. See, e.g., In re Thelen LLP, 736 F.3d 213, 219 (2d Cir. 2013).

Plaintiff WSP is a New York corporation with its principal place of business in New York. (Compl't ¶ 1.) Defendant Marinello is a citizen of New Jersey. (Compl't ¶ 2.) Subject matter jurisdiction is premised upon complete diversity of citizenship, 28 U.S.C. § 1332(a). (Compl't ¶ 3.)

WSP is an engineering consulting firm. (Compl't ¶ 5.) In July 2012, an engineering firm named Genivar acquired WSP's parent company, with the combined entity rebranded as WSP᧩. (Compl't ¶¶ 13-14.) Defendant Marinello began employment with WSP in 2001. (Compl't ¶ 7.) He continued to work in the company's New York office through January 2013, at which point he had the job title of Information Technology Director, and was responsible for overseeing IT functions for the company's U.S. businesses. (Compl't ¶¶ 5-9.)

The Complaint alleges, upon information and belief, that in or about October 2013, Marinello began employment negotiations with a direct competitor of WSP, Syska Hennesy. (Compl't ¶ 15.) WSP alleges, upon information and belief, that on or about November 29, 2012, defendant Marinello accepted an offer of employment from Syska Hennessy, and signed a letter of employment that provided a start date of January 31, 2013. (Compl't ¶ 16.) At the time, WSP was unaware that defendant had accepted this position or was seeking employment elsewhere. (Compl't ¶ 17.) Defendant Marinello did not give notice to WSP at the time he accepted the offer from Syska Hennessy.

On January 23, 2013, WSP announced that it would delay payment of employee bonuses to some point beyond the planned payment date in February 2013. (Compl't ¶ 19.) On or about January 25, defendant asked when he should expect to receive his annual bonus, stating that he was closing on a new house and needed the money. (Compl't ¶ 20.) WSP's chief financial officer stated that he would not be able to give a date certain until the following week. (Compl't ¶ 20.) On or about January 30, 2013, defendant gave notice to WSP, stating that his last day of work would be February 19, and that he expected to receive a full annual bonus. (Compl't ¶ 21.)

WSP initially refused to pay defendant's bonus, stating that it was under no obligation to do so. (Compl't ¶ 22.) It then decided "to pay most of defendant's expected bonus" after receiving a letter from his attorney. (Compl't ¶¶ 23-25.) On February 28, 2013, the parties executed a Separation Agreement and General Release (the "Agreement"), which, among other things, provided a payment of $26, 500 to the defendant. (Compl't ¶¶ 26-27.)

Two of the Agreement's provisions are particularly relevant to this motion. The first governs defendant's obligations concerning confidential WSP information, and is the basis for plaintiffs breach of contract claim:

Protection of Confidential Information. Employee will not directly or indirectly (without the Company's prior written consent), use for himself or use for, or disclose to, any party other than the Company, any Confidential Information. Such Confidential Information is, and will remain, the Company's exclusive property from its conception or acquisition. To the extent the Employee is in possession of any of said items, Employee shall promptly deliver to the Company all memoranda, notes, records, plans, designs, blueprints, flow charts, customer list, and other information, data, video or audio recordings or other documents made or compiled by, delivered to, or otherwise acquired by Employee concerning, evidencing representing, or otherwise relating to said Confidential Information.

(Agreement ¶ 3.) The Agreement defines confidential information to include "any data or information regarding the business of the Company that is not generally known to the public which has economic value, and which the company keeps confidential..." (Agreement ¶ 4.)

Separately, the Agreement includes parallel general release provisions for both WSP and defendant Marinello. (Agreement ¶ 6.) The language releasing claims by WSP contains broad language that releases "known and unknown claims... which the Company has or may have against Employee as of the date of execution of the Agreement and General Release." (Agreement ¶ 6.) It states in full:

General Release of All Claims by Company. Company hereby knowingly and voluntarily releases and forever discharges the Employee, his successors, and assigns, from any and all claims, known and unknown, asserted or unasserted, which the Company has or may have against ...

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