Case 2:20-cv-00430-CCC-ESK Document 41-2 Filed 08/14/20 Page 1 of 32 PageID: 746
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`
`UNITED STATES DISTRICT COURT FOR THE
`DISTRICT OF NEW JERSEY
`(Newark Vicinage)
`
`
`DR. MICHAEL B. MORGAN,
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`QUEST DIAGNOSTICS
`INCORPORATED,
`
`
`
`
`Defendant.
`
`MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
`PLAINTIFF’S AMENDED COMPLAINT
`
`
`CIVIL ACTION No. 2:20-cv-00430
`
`MOTION RETURN DATE:
`SEPTEMBER 8, 2020
`
`
`
`
`
`BRESSLER, AMERY & ROSS
`A Professional Corporation
`325 Columbia Turnpike
`Florham Park, New Jersey 07932
`P.O. Box 1980
`Morristown, New Jersey 07962
`(973) 514-1200
`Attorneys for Defendant
`Quest Diagnostics Incorporated
`
`
`
`On the Brief:
`Lauren Fenton-Valdivia
`Michael T. Hensley
`Jorkeell Echeverria
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`TABLE OF CONTENTS
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`Page
`TABLE OF AUTHORITIES ................................... Error! Bookmark not defined.
`PRELIMINARY STATEMENT ............................................................................... 1
`STATEMENT OF FACTS ........................................................................................ 4
`LEGAL ARGUMENT ............................................................................................... 9
`POINT I ................................................................................................................ 9
`PLAINTIFF’S AMENDED COMPLAINT SHOULD BE
`DISMISSED PURSUANT TO FED. R. CIV. P 12(b)(6) AS
`THE COMPLAINT FAILS TO STATE A CLAIM ....................................... 9
`A.
`Standard. ........................................................................................... 9
`POINT II ............................................................................................................. 10
`PLAINTIFF’S AMENDED COMPLAINT FAILS TO STATE
`A CLAIM FOR BREACH OF CONTRACT ................................................ 10
`Plaintiff’s knowing and voluntary resignation nullifies
`A.
`as a matter of law his claim that Quest breached his
`contract by terminating him without cause .................................... 10
`Even if Plaintiff’s resignation does not bar his claim,
`Plaintiff’s breach of contract claim still fails as a matter
`of law .............................................................................................. 13
`As conceded in the Amended Complaint and its
`attachments, Quest properly terminated Plaintiff for
`cause in accordance with his Employment Agreement ................. 13
`Plaintiff’s Complaint fails to state a breach of contract
`claim because he has not alleged any facts that
`plausibly showing that the alleged breach caused any
`damages. ......................................................................................... 16
`POINT III ............................................................................................................ 17
`
`B.
`
`1.
`
`2.
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`PLAINTIFF’S COMPLAINT FAILS TO STATE A CLAIM
`FOR MISAPPROPRIATION OF LIKENESS UNDER
`FLORIDA STATUTE § 540.08 AND FLORIDA COMMON
`LAW .............................................................................................................. 17
`Plaintiff’s Complaint fails to state a claim for violation
`A.
`of Florida Statute § 540.08. ............................................................ 17
`Plaintiff failed to state a claim under Florida common
`law for the same reasons that he failed to state a Florida
`Statute § 540.08 claim. ................................................................... 24
`POINT IV ............................................................................................................ 25
`PLAINTIFF’S COMPLAINT FAILS TO STATE A CLAIM
`FOR UNJUST ENRICHMENT .................................................................... 25
`
`
`
`B.
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`
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Abbott Laboratories, Inc. v. General Elec. Capital,
`765 So.2d 737 (Fla. 5th DCA 2000) ................................................................... 14
`Almeida v. Amazon.com, Inc.,
`456 F.3d 1316 (11th Cir. 2006) ...................................................................passim
`Arcand v. Brother Int’l Corp.,
`673 F. Supp. 2d 282 (D.N.J. 2009) ................................................................. 7, 15
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ................................................................................ 10, 17, 23
`Barrick v. Weis Mkts., Inc.,
`No. 4:18-CV-0362, 2018 U.S. Dist. LEXIS 137331 (M.D. Pa. Aug.
`13, 2018) ............................................................................................................... 7
`Bell Atlantic Corp. v. Twombly,
`550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ....................... 9, 10, 13
`Commerce Partnership 8098 Ltd. Partnership v. Equity Contracting
`Co.,
`695 So.2d 383 (Fla. 4th DCA 1997) ................................................................... 25
`Dantzler Lbr. & Export Co. v Defreitas,
`544 So. 2d 1135 (Fla. 4th DCA 1989) ................................................................ 10
`Epic Metals Corp. v Condec, Inc.,
`867 F. Supp. 1009 (M.D. Fla 1994) .................................................................... 18
`Evancho v. Fisher,
`423 F.3d 347 (3d Cir. 2005) ............................................................................... 10
`Faulkner Press, L.L.C. v. Class Notes, L.L.C.,
`756 F. Supp. 2d 1352 (N.D. Fla. 2010) .............................................................. 24
`
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`Friedman v. New York Life Ins. Co.,
`985 So.2d 56 (Fla. 4th DCA 2008) ..................................................................... 14
`Fuentes v. Mega Media Holdings, Inc.,
`721 F. Supp. 2d 1255 (S.D. Fla. 2010) ............................................................... 21
`Knowles v. C.I.T. Corp.,
`346 So.2d 1042 (Fla. 1st DCA 1977) ................................................................. 14
`Lane v. MRA Holdings,
`LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002) ........................................ 22, 23, 24
`McLaughlin v State, Dept. of Natural Resources,
`526 So.2d 934 (Fla. 1st DCA 1988) ................................................................... 10
`Mele v. Fed. Reserve Bank of N.Y.,
`359 F.3d 251 (3d Cir. 2004) ........................................................................... 7, 16
`Mettler, Inc. v. Ellen Tracy, Inc.,
`648 So.2d 253 (Fla. 2d DCA 1994) .................................................................... 14
`Miller v Anheuser Busch, Inc.,
`348 F. App’x 547 (11th Cir. 2009) ......................................................... 18, 19, 20
`MPS Entm’t, LLC v. Abercrombie & Fitch Stores, Inc.,
`No. 11-24110-CIV, 2013 U.S. Dist. LEXIS 91193 (S.D. Fla. June
`28, 2013) ............................................................................................................. 23
`Murciano v. Garcia,
`958 So.2d 423 (Fla. 3d DCA 2007) .................................................................... 14
`Nat’l Educ. Ctrs., Inc. v. Kirkland,
`635 So.2d 33 (Fla. 4th DCA 1993) ..................................................................... 16
`Nova Info. Sys., Inc. v. Greenwich Ins. Co.,
`365 F.3d 996 (11th Cir. 2004) ...................................................................... 25, 26
`Phillips v. County of Allegheny,
`515 F.3d 224 (3d Cir. 2008) ................................................................................. 9
`Putnam Berkley Group, Inc. v Dinin,
`734 So.2d 532 (Fla Dist Ct App 1999) ............................................................... 19
`
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`Rademakers v Scott,
`350 F. App’x 408 (11th Cir 2009) .......................................................... 11, 12, 13
`Shearson Loeb Rhoades, Inc. v. Medlin,
`468 So.2d 272 (Fla. 4th DCA 1985) ................................................................... 16
`Tooltrend, Inc. v. CMT Utensili, SRL,
`198 F.3d 802 (11th. Cir. 1999) ........................................................................... 25
`Tucker v. John Galt Ins. Agency Corp.,
`743 So.2d 108 (Fla. 4th DCA 1999) ............................................................. 16, 17
`Tyne ex rel. Tyne v. Time Warner Entm’t Co., L.P.,
`204 F. Supp. 2d 1338 (M.D. Fla. 2002) aff’d sub nom. Tyne v.
`Time Warner Entm’t Co., L.P., 425 F.3d 1363 (11th Cir. 2005)........................ 24
`Venero v City of Tampa,
`830 F Supp 1457 (MD Fla 1993) ........................................................................ 10
`Statutes
`Florida Statute § 95.11 ............................................................................................. 18
`Florida Statute § 540.08 ....................................................................................passim
`Other Authorities
`42 CFR §493.1445 ................................................................................................... 21
`Fed. R. Civ. P. 12(b)(6) .....................................................................................passim
`
`
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`
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`PRELIMINARY STATEMENT
`Following Quest’s internal investigation that concluded that he had engaged
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`
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`in misconduct with respect to missing patient specimens, Plaintiff Dr. Michael B.
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`Morgan, a former employee dermatopathologist of Dermpath Diagnostics
`
`(“Dermpath”)1, voluntarily resigned via email at 6:44 a.m. on January 28, 2015, in
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`an attempt to preempt a written notice of termination that had already been sent to
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`him but not yet received. Plaintiff then waited five years to bring suit for alleged
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`breach of his employment agreement. In his initial complaint, he premised his
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`breach of contract claim solely on Quest’s alleged failure to provide him with written
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`notice of his termination. In the face of Quest’s motion to dismiss, which provided
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`uncontroverted evidence that it had provided written notice of termination (and,
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`regardless, Plaintiff had resigned), Plaintiff shifted tactics. He amended his breach
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`of contract claim to allege for the first time that Quest did not have good cause to
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`terminate him for his misconduct relating to missing patient specimens although he
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`again pled that he chose to resign. Despite being a second bite at the apple,
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`Plaintiff’s Amended Complaint must be dismissed for failure to state a claim, as it
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`suffers from the same fatal defects contained in his initial Complaint.
`
`
`1 Dermpath Diagnostics is also known as AmeriPath Florida and is an indirect wholly
`owned subsidiary of Quest Diagnostics Incorporated (collectively, “Quest”).
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`Like his original Complaint, Plaintiff’s Amended Complaint makes
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`paradoxical allegations that he both resigned before receiving a written notice of
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`termination and was terminated without cause. In a futile attempt to reconcile this
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`stark inconsistency, Plaintiff alleges that he only resigned (effective January 27,
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`2015) via email to avoid termination and the resultant professional embarrassment.
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`But the attachments to his own Amended Complaint disprove these allegations. The
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`Amended Complaint attaches a February 9, 2015 email from Plaintiff’s attorney
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`informing Quest that “[Plaintiff’s] resignation was carefully thought through,
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`discussed with his family, and based on his personal and professional interests
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`and needs.” (emphasis added). In other words, the attorney representing Plaintiff at
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`the time of his resignation made it explicitly clear in writing that Plaintiff’s
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`resignation was entirely voluntary and a decision that was in his own considered
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`interests. Five years later, Plaintiff brings suit, alleging that Quest terminated him
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`without cause in breach of his employment agreement–despite Plaintiff’s admitted
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`resignation and his attorney’s letter emphasizing the voluntariness of the resignation.
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`Moreover, as stated in the Amended Complaint, after Plaintiff voluntarily
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`resigned his employment, he received Quest’s written notice of termination sent to
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`Plaintiff on January 27, 2015. The termination was based on the findings of an
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`internal investigation into Plaintiff’s misconduct—which then led Quest to exercise
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`its contractual right to terminate Plaintiff’s employment agreement.
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`Thus, the Amended Complaint itself makes clear that one of two things is true:
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`1) Plaintiff cannot have a breach of contract claim because he voluntarily resigned
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`as pled in the Amended Complaint; or 2) Plaintiff was terminated with cause and
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`served with written notification for same as required by the Employment Agreement.
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`In either scenario, his breach of contract claim fails as a matter of law.
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`Plaintiff further alleges misappropriation of his name and likeness, a claim
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`that is barred, in part, by the statute of limitations and that otherwise fails to state a
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`claim. First, Plaintiff’s own allegations establish that his claim that Quest
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`misappropriated his likeness by not removing his name from the footer of laboratory
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`reports is barred by the applicable statute of limitations. Second, the laboratory
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`reports themselves are not marketing materials as they do not promote any products.
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`Third, Plaintiff’s claim also fails because the brochure purportedly uploaded to a
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`website in March 2016 did not directly promote a product.
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`Plaintiff’s unjust enrichment claim is also fatally flawed as it relies entirely
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`on the brochure purportedly uploaded to a website in March 2016. However, there
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`is no basis for concluding that the mere inclusion of Plaintiff’s photograph on a
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`brochure that allegedly was uploaded on the Quest website constitutes any benefit
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`for Quest. .
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`For the reasons set forth, Plaintiff’s claims fail in their entirety and must be
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`dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
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`STATEMENT OF FACTS
`According to the Amended Complaint, Plaintiff Dr. Michael B. Morgan is a
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`board-certified pathologist and dermatopathologist licensed to practice in the state
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`of Florida.2 ECF Dkt. #39 - Plaintiff’s Amended Complaint (hereinafter “Amended
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`Complaint”) at ¶1. Defendant Quest Diagnostics Incorporated (“Quest”) is a
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`corporation headquartered in New Jersey and is the indirect parent company of
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`Dermpath Diagnostics. Amended Complaint ¶4.
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`Plaintiff began working for Dermpath’s Tampa, Florida laboratory in 1996.
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`Amended Complaint ¶9. In 2007, Quest Diagnostics Incorporated acquired
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`Dermpath. Amended Complaint ¶11. In or about 2008, Plaintiff became managing
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`director of Dermpath’s Tampa laboratory. Amended Complaint ¶10. Quest
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`appointed Plaintiff as a member of the board of directors and Senior Managing
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`Director of Dermpath’s Tampa laboratory. Amended Complaint ¶13
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`In November 2012, the parties entered into an employment agreement which
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`term ran from November 1, 2012 to November 1, 2017. Amended Complaint ¶15
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`and ECF Dkt. #___ - Exhibit A to Complaint (hereinafter the “Employment
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`Agreement”)3.
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`2 For the purposes of this motion to dismiss only, Quest will be accepting all the
`factual allegations as true.
`3 The Employment Agreement can be found at ECF Dkt. # 2-1. Plaintiff’s Amended
`Complaint refers to a number of exhibits but fails to attach same to the Amended
`Complaint. For the purposes of this brief and to help the Court review the proper
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`documents, we will provide the ECF Dkt. # for the documents as referenced in the
`initial Complaint. The Employment Agreement can be found at ECF Dkt. # 2-1.
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`In January 2015, in response to concerns raised by another Dermpath
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`employee, Quest conducted an internal investigation into Plaintiff’s conduct with
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`respect to missing patient specimens, which concluded that he had engaged in
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`unethical, unprofessional, unlawful, and/or fraudulent conduct. Amended Complaint
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`¶¶28-41. Based on these findings, Quest exercised its express right to terminate
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`Plaintiff’s contract under the “Cause” provision. Plaintiff was well aware that Quest
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`was investigating him for conduct that would constitute a for-cause termination as
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`he was interviewed as part of the investigation and placed on administrative leave
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`pending the outcome of the investigation. Amended Complaint at ¶¶28-31. On
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`January 27, 2015, Quest personnel, including a member of Quest’s Human
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`Resources Department, conducted a telephone call with Plaintiff wherein they
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`notified Plaintiff of the investigation findings and advised Plaintiff of Quest’s intent
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`to terminate his Employment Agreement for “Cause” based on its conclusion that
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`Plaintiff had engaged in the misconduct. Amended Complaint at ¶¶37-39.
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`Following the call, on January 27, 2015, Quest transmitted a hard-copy notice of
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`termination to Plaintiff indicating that his contract was being terminated for Cause
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`pursuant to
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` of the Employment
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`Agreement.4 The notice of termination dated January 27, 2015 is attached to the
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`Certification of Lauren Fenton-Valdivia (hereinafter “Valdivia Cert.”) as Exhibit A.
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`After being told of Quest’s decision to terminate him for “Cause” but before Quest’s
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`January 27 notice could be delivered, Plaintiff preempted Quest’s termination by
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`sending an email at 6:44 A.M. on January 28, 2015, resigning his employment with
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`Quest. Exhibit ___to the Amended Complaint.5 It appears Plaintiff was advised by
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`counsel throughout this process, as evidenced by an email sent by Plaintiff’s attorney
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`to Quest on that same date.. See id., see also Valdivia Cert. at Exhibit D.6
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`4 Plaintiff’s Complaint referenced this letter; accordingly, Quest has included a copy
`of the letter as Exhibit A to the Certification of Lauren Fenton-Valdivia. As
`Plaintiff’s Complaint referenced this correspondence, the Court may consider it on
`a motion to dismiss, without the motion being converted to one for summary
`judgment on the breach of contract claim. Arcand v. Brother Int'l Corp., 673 F. Supp.
`2d 282, 292 (D.N.J. 2009) (court may consider documents referenced in complaint
`that are essential to plaintiff's claim); Mele v. Fed. Reserve Bank of N.Y., 359 F.3d
`251, 255 n.5 (3d Cir. 2004) (“A document integral to or explicitly relied on in the
`complaint ‘may be considered without converting the motion [to dismiss] into one
`for summary judgment.’”).
`5 Plaintiff’s email resigning can be found at ECF Dkt. # 2-5. As noted above, Plaintiff
`failed to attach his exhibits to the Amended Complaint.
`6 This is the final email in the chain of emails regarding Plaintiff’s resignation. Since
`Plaintiff’s resignation is essential to Plaintiff’s claims, the Court may consider the
`entire chain. See e.g., Barrick v. Weis Mkts., Inc., No. 4:18-CV-0362, 2018 U.S. Dist.
`LEXIS 137331, at *7 (M.D. Pa. Aug. 13, 2018)(considering an entire email chain
`submitted by defendants on a motion to dismiss without converting it to a motion
`for summary judgment where the Court held that it was “permissible to consider
`[the] full text of documents partially quoted in complaint.”). See Valdivia Cert. at
`Exhibit E.
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`Furthermore, a few dates later, on February 9, 2015, Plaintiff’s attorney sent
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`Quest a letter stating, inter alia, “[Plaintiff’s] resignation was carefully thought
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`through, discussed with his family, and based on his personal and professional
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`interests and needs.” Amended Complaint at Exhibit __ (emphasis added).7
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`Plaintiff’s Amended Complaint claims that Quest continued to “maintain his
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`likeness and image” on “their marketing materials and website” for two years after
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`Plaintiff resigned. Amended Complaint at ¶49. However, other than alleging that a
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`brochure appeared on the internet in March of 2016, Plaintiff fails to articulate
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`whether Quest used or actively marketed this brochure to any clients or potential
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`clients after his employment ended, or that the brochure was linked to anywhere on
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`the Quest Diagnostics website. Amended Complaint at ¶¶ 49-53
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`Plaintiff’s Amended Complaint further claims that Quest continued to include
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`his name as “lab director” in the footer of laboratory reports after he was no longer
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`employed. Amended Complaint at ¶56. However, Plaintiff’s Amended Complaint
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`concedes that he became aware of this nearly five years ago. Specifically, he alleges
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`he knew that his name briefly continued to appear in the footer of lab reports and
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`that he “addressed his concerns by filing complaints with both the Florida Agency
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`7 Plaintiff’s counsel’s letter to Quest can be found at ECF Dkt. # 2-4. As noted above,
`Plaintiff failed to attach his exhibits to the Amended Complaint.
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`for Healthcare Administration (“ACHA”) and the College of Pathologists
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`Accreditation Program (“CAP”) in July 2015.”8 Amended Complaint at ¶67.9
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`LEGAL ARGUMENT
`POINT I
`PLAINTIFF’S AMENDED COMPLAINT SHOULD
`BE DISMISSED PURSUANT TO FED. R. CIV. P
`12(b)(6) AS THE COMPLAINT FAILS TO STATE A
`CLAIM
`A. Standard.
`In reviewing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a district
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`court is “required to accept as true all factual allegations in the complaint and draw
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`all inferences from the facts alleged in the light most favorable” to the plaintiff.
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`Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008); see also Bell
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`Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929
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`(2007). “However, a court need not credit either ‘bald assertions’ or 'legal
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`conclusions' in a complaint when deciding a motion to dismiss.” Evancho v. Fisher,
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`8 Plaintiff appears to be referring to the College of American Pathologists, as Quest
`is not aware of any regulatory body known as the “College of Pathologists
`Accreditation Program.”
`9 In any event, after the termination of his employment, Plaintiff’s name was
`removed from the footer of all laboratory reports. Declaration of T. Eastman
`(“Eastman Decl.”) at ¶¶7-8; Declaration of J. DiPaola (“DiPaola Decl.”) at ¶¶10-11.
`As of March 11, 2015, diagnostic laboratory reports published by Dermpath no
`longer had Plaintiff’s name on them. Eastman Decl. at ¶8. As of October 21, 2015,
`diagnostic laboratory reports published by another Quest laboratory located in
`Tampa, Florida no longer had Plaintiff’s name on them. DiPaola Decl. at ¶11.
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`423 F.3d 347, 350 (3d Cir. 2005). A complaint survives a Rule 12(b)(6) motion to
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`dismiss if it states a claim to relief that is “plausible on its face” regarding plaintiff's
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`entitlement to the relief sought. Twombly, 127 S.Ct. at 1965-66. This standard is
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`satisfied only when a plaintiff “pleads factual content that allows the court to draw
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`the reasonable inference that the defendant is liable for the misconduct alleged.”
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`Ashcroft v. Iqbal, 556 U.S. 662 (2009).
`
`POINT II
`PLAINTIFF’S AMENDED COMPLAINT FAILS TO
`STATE A CLAIM FOR BREACH OF CONTRACT
`A. Plaintiff’s knowing and voluntary resignation nullifies as a matter of law
`his claim that Quest breached his contract by terminating him without
`cause
`Under Florida Law, employee resignations are presumed to be voluntary and
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`therefore preclude any claim for breach of contract. Venero v City of Tampa, 830 F.
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`Supp. 1457, 1459 (MD Fla 1993) Dantzler Lbr. & Export Co. v Defreitas, 544 So
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`2d 1135, 1135 (Fla. 4th DCA 1989) (“Generally an employee who elects to resign
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`gives up his right to sue for breach of contract.”). McLaughlin v State, Dept. of
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`Natural Resources, 526 So 2d 934, 936 (Fla. 1st DCA 1988) (“Absent evidence to
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`the contrary, retirement or resignation is presumed to be a voluntary act. A voluntary
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`act is an act proceeding from one's own choice. . .”). A resignation in response to
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`imminent termination is voluntary when totality of the circumstances suggest the
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`decision to resign was a deliberate one. Rademakers v. Scott, 350 Fed. App'x 408,
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`412-13 (11th Cir. 2009). Factors that help determine whether the resignation was
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`voluntary include whether 1) the employee understood the consequences of the
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`decision; 2) the time allotted to decide whether to resign; 3) whether the employee
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`had a choice about the effective date of the resignation; and 4) whether the decision
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`was made with the advice of counsel. Id. citing Hargray v. City of Hallandale, 57
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`F.3d 1560, 1568 (11th Cir. 1995) (emphasis added). Even when the only alternative
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`to resignation is termination, the resignation is still considered voluntary unless “the
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`employer actually lacked good cause to believe that grounds for the termination . . .
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`existed.” Id.
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`For example, in Rademakers v Scott, 350 F. App'x 408, 409 (11th Cir 2009),
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`the plaintiff (a police officer) attended a retirement party where she engaged in
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`“inappropriate physical contact” with coworkers. The plaintiff’s employer
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`commenced an investigation into possible misconduct by the Plaintiff. Id. An
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`investigative report concluded that the Plaintiff had committed both conduct
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`unbecoming an officer and insubordination by being untruthful during the
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`investigation. Id. After the plaintiff received notice of the report and of the likelihood
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`that she would be terminated, she resigned. Id. The plaintiff filed a complaint
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`alleging Title VII claims, in part, on the basis that she had been forced to resign. Id.
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`at 409-410. The defendant moved for summary judgment and argued, inter alia, that
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`the plaintiff’s claims were baseless as she never suffered an adverse employment
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`Case 2:20-cv-00430-CCC-ESK Document 41-2 Filed 08/14/20 Page 18 of 32 PageID: 763
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`action because she voluntarily resigned. Id. at 410. The court held that the plaintiff
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`voluntarily resigned and noted that the evidence showed: 1) prior to her resignation,
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`plaintiff had knowledge of an investigation into her misconduct; and 2) the plaintiff
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`resigned to “avoid blemish on her employment record, and that choice was made
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`with the assistance of counsel. . .” Id. at 412.
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`Here, just as in Rademakers, the totality of the circumstances as pled in the
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`Amended Complaint demonstrate
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`that Plaintiff voluntarily resigned. See
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`Rademakers, 350 F. App'x at 412-13. Plaintiff admits that he was under investigation
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`for misconduct involving lost specimens, that he had been placed on administrative
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`leave, and that Quest had verbally notified him of its intent to terminate him for
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`cause. See Amended Complaint at ¶31, Valdivia Cert. at Exhibit A. As in
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`Rademakers, Plaintiff further admits that he resigned in the face of his inevitable
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`termination to avoid embarrassment. 350 F. App'x at 412. Plaintiff’s Amended
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`Complaint further establishes that he was aware of the consequences of his
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`resignation. See Rademakers, 350 F. App'x at 412-13, Amended Complaint at
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`Exhibit __.10 In fact, as evidenced by his resignation email (which he referenced in
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`the Amended Complaint) and his attorney’s immediate response to that resignation
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`email. See Valdivia Cert. at Exhibit D. Plaintiff was represented by counsel at the
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`10 See ECF Dkt. # 2-4. As noted above, Plaintiff failed to attach his exhibits to the
`Amended Complaint.
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`Case 2:20-cv-00430-CCC-ESK Document 41-2 Filed 08/14/20 Page 19 of 32 PageID: 764
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`very time of this resignation. Moreover, the Amended Complaint attaches a letter
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`from his attorney dated February 9, 2015, only a few days after his voluntary
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`resignation, which states “[Plaintiff’s] resignation was carefully thought
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`through, discussed with his family, and based on his personal and professional
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`interests and needs.” Amended Complaint at Exhibit __ (emphasis added).11
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`Therefore, Plaintiff’s own Amended Complaint establishes that he voluntary
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`resigned, which is fatal to his breach of employment agreement claim. See
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`Rademakers, 350 F. App'x at 412; Twombly, 127 S.Ct. at 1965-66 (holding that a
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`complaint survives a Rule 12(b)(6) motion to dismiss if it states a claim to relief that
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`is “plausible on its face”).
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`B. Even if Plaintiff’s resignation does not bar his claim, Plaintiff’s breach of
`contract claim still fails as a matter of law
`1.
`As conceded in the Amended Complaint and its attachments, Quest
`properly terminated Plaintiff for cause in accordance with his
`Employment Agreement
`Plaintiff’s Complaint alleges Quest was obligated to deliver written notice
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`setting forth the date of his termination by first class mail before it verbally advised
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`him of his termination. Amended Complaint at ¶78. According to the Amended
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`Complaint, Quest breached the agreement by calling Plaintiff on January 27, 2015
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`11 See ECF Dkt. # 2-4. As noted above, Plaintiff failed to attach his exhibits to the
`Amended Complaint.
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`to inform him of the termination of his Employment Agreement in advance of
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`delivering the written notice of termination. Amended Complaint at ¶81.
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`However, Plaintiff’s Amended Complaint fails to state a claim for breach of
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`contract under Florida12 law where the Employment Agreement does not require a
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`particular time or sequence for the written notice – only that written notice of
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`termination for cause be delivered at any time after the termination decision is made.
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`And, by his own admission in his Amended Complaint and the associated exhibits,
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`Quest provided the necessary written notice of termination for cause to Plaintiff. See
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`Amended Complaint at ¶83; see also Valdivia Cert. at Exhibit A.
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`In Florida, an adequately pled breach of contract action requires three
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`elements: (1) a valid contract; (2) a material breach; and (3) damages. Friedman v.
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`New York Life Ins. Co., 985 So.2d 56, 58 (Fla. 4th DCA 2008). This general rule
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`was enunciated by various Florida district courts of appeal. See Murciano v. Garcia,
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`958 So.2d 423, 423-24 (Fla. 3d DCA 2007); Abbott Laboratories, Inc. v. General
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`Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000); Mettler, Inc. v. Ellen Tracy,
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`Inc., 648 So.2d 253, 255 (Fla. 2d DCA 1994); Knowles v. C.I.T. Corp., 346 So.2d
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`1042, 1043 (Fla. 1st DCA 1977).
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`Here, the Employment Agreement between Plaintiff and Quest was
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`. Plaintiff does not dispute this fact. There is nothing in the Employment
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`Agreement that prohibits Quest form verbally notifying Plaintiff of Quest’s intent to
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`terminate in advance of issuing the written notice of termination for cause.
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` Here, as demonstrated by Plaintiff’s own pleadings and the associated
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`exhibits, Quest terminated