Leonard Accardi v. EMS Aviation, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10502
Non-Argument Calendar
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D.C. Docket No. 2:10-cv-00469-UA-DNF
LEONARD ACCARDI,
Plaintiff-Appellant,
versus
EMS TECHNOLOGIES, INC.,
a Georgia corporation, et al.,
Defendants,
EMS AVIATION, INC.,
f/d/b/a Formation, Inc., a
New Jersey corporation,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 23, 2012)
Before CARNES, WILSON, and HILL, Circuit Judges:
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PER CURIAM:
This is an appeal from the grant of defendant/appellee’s, EMS Aviation,
Inc., f/d/b/a Formation, Inc. (Formation), motion for summary judgment, and the
denial of plaintiff/appellant’s, Leonard Accardi (Accardi), motion for summary
judgment. This diversity appeal involves an alleged breach of contract, i.e., a
consulting agreement (Consulting Agreement), between Accardi and his former
employer, Formation.
In 2006, Accardi signed the Consulting Agreement with Formation. It
stated that Accardi would work 20-30 hours per month, in exchange for $2,000 per
month, plus a 2% commission on sales for which he provided “sales coverage.”
The Consulting Agreement contained a termination clause: “There is no term for
this consultancy agreement and either party can, acting in good faith, terminate
with a 30-day written notice. Commissions earned on sales completed prior to
termination will continue for a period of six months.”
Both parties agree that Accardi acquired two new and substantial clients for
Formation, Aircell and Row 44, during his consultancy. Accardi concedes that he
received all commissions for sales to Aircell and Row 44, during his tenure.
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In 2008, Formation determined that Aircell and Row 44, as valued clients,
needed full-time, not part-time attention. The company hired Kin Seto, as Vice
President of Business Development and Marketing in November 2008, to take
responsibility for the Aircell and Row 44 accounts. Formation decided to
terminate Accardi.
In accordance with the terms of the Consulting Agreement, on November
24, 2008, Formation gave written notice to Accardi, terminating his consultancy,
effective December 24, 2008. It acknowledged that sales made by Accardi and
completed prior to December 24, 2008, would continue for a period of six months.
At the time, Accardi did not challenge the termination. He continued to
receive his residual commission payments as contemplated by the Consulting
Agreement.
In July 2010, Accardi filed suit against Formation, alleging that Formation
breached the Consulting Agreement by refusing to pay future commissions and by
terminating in bad faith. The district court concluded that Accardi had failed to1
establish any of his claims, and there were no genuine issues of material fact,
precluding summary judgment in favor of Formation. We agree.
Accardi also claimed a breach of the implied duty of good faith and fair dealing.1
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We have reviewed the record in this appeal, the briefs and the arguments of
counsel. Finding no error, we affirm the judgment of the district court.
AFFIRMED.
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