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Cozza v. Imagine Software, Inc.

United States District Court, N.D. Ohio, Eastern Division

December 28, 2017

GREGORY T. COZZA, Plaintiff,
v.
IMAGINE SOFTWARE, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          DONALD C. NUGENT, UNITED STATES DISTRICT COURT.

         This 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.

         FACTUAL BACKGROUND

         On July 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 factual allegations:

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 agreement.
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 Paris, France.
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.

         (Complaint, ¶¶ 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 ...


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