United States District Court, N.D. Ohio, Eastern Division
GREGORY T. COZZA, Plaintiff,
IMAGINE SOFTWARE, INC., Defendant.
MEMORANDUM OPINION AND ORDER
C. NUGENT, UNITED STATES DISTRICT COURT.
matter is before the Court on Defendant's Motion to
Dismiss Plaintiffs Complaint. (ECF #8). For the reasons that
follow, Defendant's Motion to Dismiss is denied.
12, 2017, Plaintiff Gregory Cozza filed a Complaint against
his former employer, Defendant Imagine Software, Inc.
("Imagine"), in the Court of Common Pleas for
Cuyahoga County. Defendant removed the action to this Court
on August 9, 2017, pursuant to 28 U.S.C. §§ 1332,
1441 and 1446. Plaintiffs Complaint contains the following
4. Mr. Cozza began working for Imagine as a sales
representative in 2004. In 2013, Mr. Cozza and Imagine agreed
that Mr. Cozza would be employed as a Senior Sales Executive,
responsible for sales of software products developed by
Imagine. The terms of Mr. Cozza's compensation were set
forth in a Compensation Agreement dated March 23, 2013, a
true copy of which is attached hereto as Exhibit A.
5. Imagine agreed to pay Mr. Cozza based on the formula set
forth in Exhibit A, an incentive-based plan which provided
Mr. Cozza, in addition to his base salary, a commission on
the amount of new revenue he generated, payable in the year
in which the customer paid its initial invoice, using what
Imagine referred to a "accelerators."
6. By its terms, Exhibit A was effective from January 1, 2013
to December 31, 2013. However, Mr. Cozza continued the same
employment with Imagine from January 1, 2014 through August
2016, and by mutual agreement Imagine continued to compensate
Mr. Cozza after December 31, 2013, on the same basis as set
forth in Exhibit A. The parties never agreed to any changes
and Imagine never advised Mr. Cozza of any change to the
compensation agreement from March 2013 forward, except that
Imagine increased Mr. Cozza's base salary in April 2016
without altering any other aspect of the compensation
7. Mr. Cozza continued to work and develop sales for Imagine
in reliance on the compensation agreement as set forth in
Exhibit A in 2014, 2015and2016.
8. Among other prospects, Mr. Cozza developed a sales
relationship with Societe Gnerale, a French multinational
banking and financial sendees company, headquartered in
9. After many months of sales work, Mr. Cozza secured a
contract with Societe Generale to purchase Imagine software
for approximately $20, 000, 000, payable over five years
commencing in 2015. On information and belief, Societe
Generale has continued its purchase of that software from
Imagine based on Mr. Cozza's sale.
10. Once the contract with Societe Generale was executed and
the first invoice was paid in 2015, Imagine breached the
compensation agreement by deviating from the commission
formula and paid Mr. Cozza only a portion of the commission
to which he was entitled.
11. Fr. 2015, on total new revenue sales exceeding $6, 687,
667.00, instead of paying Mr. Cozza total compensation of at
least $584, 460.00, Imagine paid Mr. Cozza only $175, 300.00,
thereby shorting him not less than $409, 160.00. The
commission paid to Mr. Cozza by Imagine on his sale to
Societe Generale was only $70, 000. The commission on the
Societe Generale new revenue alone should have been not less
than $498, 060.00.
12. Mr. Cozza protested being shorted on his compensation but
his protests were ignored by Imagine and no further 2015
compensation was paid. Imagine paid Mr. Cozza under the terms
of the compensation agreement for sales in 2016. Mr. Cozza
resigned his position with Imagine in August 2016. To date,
Imagine continues to owe Mr. Cozza at least $409, 160.00.
¶¶ 4-12) Based upon these allegations, Plaintiff
asserts three causes of action for Breach of Contract (Count
One), Breach of Implied Contract (Count Two), and ...