Opinion
C. A. 3:19-1830-CMC-SVH
06-11-2021
Kristy Michelle Wolff, NP-C, MSN, Plaintiff, v. CapeSide Psychiatry PLLC and CapeSide Addiction Care PLLC, Defendants.
REPORT AND RECOMMENDATION
SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE.
Plaintiff, proceeding pro se, filed her amended complaint against CapeSide Psychiatry PLLC (“CapeSide Psychiatry”) and CapeSide Addiction Care PLLC (“CapeSide Addiction”) (collectively “Defendants”) on February 25, 2020, asserting a claim for breach of employment contract. [ECF No. 29].
Pursuant to 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(e) (D.S.C.), this case was referred to the undersigned for all pretrial proceedings. This matter comes before the court on Defendants' motion for summary judgment. [ECF No. 82]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if she failed to respond adequately Defendants' motion. [See ECF No. 84]. The motion has been fully briefed [ECF No. 87] and is ripe for disposition.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendants' motion.
I. Factual and Procedural Background
Plaintiff alleges that on April 30, 2018, she and Defendants entered into an employment contract that provided for Plaintiff's employment “as long as she [met] the terms of and conditions of the contract for a specified period of time as an independent contractor as a Family Nurse Practitioner in the role of telepsychiatry as a contract employee ....” [ECF No. 29 at 4].
Both parties have submitted copies of the contract at issue, entitled “independent contractor agreement” (“ICA”). [See ECF No. 1-1 at 9-16, ECF No. 82-1]. The ICA provides in relevant part as follows:
THIS AGREEMENT is made and entered as of the 30th day of April 2018 by and between CAPESIDE ADDICTION CARE, PLLC (“Contractee”), and Kristy Wolff, NP an individual Nurse Practitioner (“Nurse Practitioner)” ....
WHEREAS, Contractee desires to utilize Nurse Practitioner's services upon the terms and conditions hereinafter set forth, and the Nurse Practitioner desires to accept such work.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. TERM AND TERMINATION. Initiation of agreement is contingent upon completion of all licensing and agency credentialing requirements. Thereafter, the initial term of this Agreement shall be for twelve (12) months commencing on April 30, 2018 if not sooner terminated as provided below, ending May 1, 2019. Thereafter, this Agreement shall automatically renew for additional one (1) year terms. Either party may terminate this agreement without cause at any time upon ninety (90) days advance written notice to the other party ....
3. COMPENSATION. In consideration of the Nurse Practitioner rendering services under this Agreement, Contractee shall compensate Nurse Practitioner Seventy-Five Dollars ($75.00) per hour up to a maximum of Six Hundred Dollars ($600.00) per day which will be paid within 10 days of invoice submission. Nurse Practitioner will be responsible for all Federal, State, and Local employment taxes on all income earned. Nurse Practitioner will not be eligible for any benefits relative to this Contract for Social Security, North Carolina Workers Compensation, Unemployment Insurance, North Carolina Teachers' and State Employees' Retirement System, Federal Family & Medical Leave Act, health or disability benefits, vacation pay, sick leave or employee benefits of any kind. Contractee, in accordance with federal or state requirements, will submit a Form 1099 at calendar year-end to the Federal Government for Nurse Practitioner if gross income exceeds $600, which thereupon will be reported for income tax purposes.....
20. GOVERNING LAW. This Agreement shall be interpreted, construed and governed according to the laws of the State of North Carolina.See id.
None of the copies of the ICA submitted are signed. Defendants dispute that the ICA was ever fully executed or that Plaintiff ever fulfilled the regulatory requirements set forth in the ICA to make her eligible to receive North Carolina patient referrals. [See, e.g., ECF No. 83 at 2 n.1]. However, Defendants specifically state they do not address these issues in their motion for summary judgment. See id.
Plaintiff indicates over the course of the next eight months Plaintiff, in part, pursued the necessary credentialing. [See ECF No. 43 at 5-8, see also ECF No. 1-1 at 5-8]. Plaintiff has submitted many emails between her and Cheryl Macias (“Macias”) during this time period, mostly concerning Plaintiff's efforts to be credentialed. [ECF No. 1-1 at 5-8, see also ECF No. 57-1]. The last email exchange is dated the afternoon of December 10, 2018, possibly following the resolution of the credentialling issue, at least to Plaintiff's satisfaction. [ECF No. 1-1 at 6]. Plaintiff asks about a timeline when she could be expected to start work, further stating “Please let me know what you have in mind. I was thinking [the] original contract would apply, ” and Macias responds, “Let me review and I will get right back to you.” Id.
Plaintiff argues the correspondence she has submitted to the court indicates Defendants “continued to advise the plaintiff that she was indeed employed and that she should turn down all other offers of employ[]ment as she was still needed.” [ECF No. 29 at 4]. However, review of the correspondence indicates the only reference to Plaintiff turning down other work opportunities came from Plaintiff. [See ECF No. 1-1 at 5-8, ECF No. 57-1, see also ECF No. 57-1 at 15 (email dated November 20, 2018, wherein Plaintiff discusses ongoing credential issues and states “I hope we can work this out”)].
Notwithstanding, Plaintiff was never referred any patients, and Plaintiff argues that Defendants “did not notify” her “of termination of the contract or communicate the desire to terminate the contract at any time via the terms of the contract ....” [ECF No. 29-1 at 1, see also ECF No. 57 at 5 (“The plaintiff . . . honestly believes she was misled and fraudulently induced into turning down other work and spending money for the job and was only under the understanding that she lacked [certain credentials].”)].
Although Plaintiff repeatedly refers to being, for example, “fraudulently induced, ” the only claims she has asserted against Defendants is one for breach of contract. [See, e.g., ECF No. 87 at 1].
II. Discussion
A. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
As stated above, the ICA contains a choice of law provision stating that it shall be interpreted, governed, and construed pursuant to North Carolina law. Where “the parties to a contract specify the law under which the contract shall be governed, the court will honor this choice of law.” Rock v. Atl. Specialty Ins. Co., C/A No. 4:19-1433-SAL, 2020 WL 1892193, at *2 (D.S.C. Apr. 16, 2020) (citing Nucor Corp. v. Bell, 482 F.Supp.2d 714, 728 (D.S.C. 2007); Team IA, Inc. v. Lucas, 717 S.E.2d 103, 108 (S.C. Ct. App. 2011) (“Choice of law clauses are generally honored in South Carolina.”)). Additionally, the parties do not appear to dispute that North Carolina law applies. [See ECF Nos. 82, 87].
Every contract must be supported by consideration, and “[a] mere promise, without more, is unenforceable.” Inv. Props. of Asheville, Inc. v. Norburn, 188 S.E.2d 342, 345 (N.C. 1972). Consideration consists of “any benefit, right, or interest bestowed upon the promisor, or any forbearance, detriment, or loss undertaken by the promisee.” Elliott v. Enka-Candler Fire & Rescue Dep't, Inc., 713 S.E.2d 132, 135 (N.C. 2011) (citations omitted).
Plaintiff argues that Defendants were obligated, under the terms of the ICA, once Plaintiff was properly credentialed, to provide her with work in the form of patient referrals resulting in a certain number of hours and certain amount of compensation. Plaintiff additionally argues that, based on the terms of the ICA, Defendants could terminate her employment, but were required to provide 90 days' notice to do so. Defendants' position is that, assuming the ICA was enforceable and Plaintiff was properly credentialed, the conduct alleged by Plaintiff, that she was never offered any referrals and, presumably, never received notice of termination of the agreement, is not a breach of the ICA. In other words, under the terms of the ICA, Defendants argue they had no obligation to perform, where the ICA does not provide for a minimum number of hours, compensation, or referrals, and references only a maximum amount of compensation per day. [See ECF No. 83 at 5 (“The inclusion of a maximum compensation amount but no minimum is telling, as it makes clear that the parties contemplated a ceiling to Plaintiff's potential compensation under the ICA, but no floor or minimum.”)].
Defendants' position is, in effect, they had no obligation to Plaintiff. However, if Defendants were not obligated under the terms of the agreement to provide notice of termination to Plaintiff or provide her with referrals, no contract formed. See, e.g., Milner Airco, Inc. of Charlotte, NC v. Morris, 433 S.E.2d 811, 814 (N.C. 1993) (“The contract itself, while reciting consideration, actually does not bind the employer to any promise .... The purported consideration was illusory at best.”); Bowman v. Hill, 262 S.E.2d 376 (N.C. 1980) (“An apparent promise which, according to its terms, makes performance optional with the promisor . . . is in fact no promise. Such an expression is often called an illusory promise.”) (citing Williston, Contracts § 1A (3d ed.1957)); cf. In re WHET, Inc., 33 B.R. 443, 447 (Bankr. D. Mass. 1983) (“Further, the contract itself may be invalid. The contract provides that ‘[no] minimum number of hours shall be required to be provided by' Mr. Martin-Trigona. Mr. Martin-Trigona, therefore, was under no obligation to perform. A contract lacking such an obligation may be considered indefinite or illusory.”) (citations omitted).
Here, although the ICA provides that Plaintiff cannot receive more than $600 dollars a day, there is no obligation on the face of the agreement that she receive any compensation ever. Thus, the ICA lacks an essential term rendering the court unable to enforce it, warranting dismissal of Plaintiff's claims for breach of contract. See, e.g., Laseter v. Pet Dairy Prod. Co., 246 F.2d 747, 750 (4th Cir. 1957) (“The Court cannot write a contract for the parties. When the parties have not, expressly or by implication, agreed upon essential terms of a contract, the Court cannot supply them .... the claimed special contract of employment is too indefinite to be enforced ”); BCD LLC v BMW Mfg. Co., LLC, 360 Fed.Appx. 428, 434-35 & n.2 (4th Cir. 2010) (“‘[W]ords of promise which by their terms make performance entirely optional with the ‘promisor' do not constitute a promise' and, instead, constitute an illusory promise .... Although the 2002 Agreement contained a ten-day notice provision, this provision failed to create a justified expectation of performance because there was no meeting of the minds as to the essential elements of the underlying agreement, resulting in a failure to execute an enforceable contract in the first instance.”) (citing Restatement (Second) of Contracts § 77 cmt. a (1981)); cf. Echols v. Pelullo, 377 F.3d 272, 275 (3d Cir. 2004) (finding a contract could not be enforced due to its failure to specify minimum compensation for performance).
Although it appears that Plaintiff argues otherwise [see ECF No. 87 at 3 (“While the defendant states there were no guarantee of hours there are emails that are in opposition to this statement.”), see also id. at 5-6], Plaintiff has not submitted any documentation, including emails, indicating Defendants altered or supplemented the ICA such that they were obligated to provide Plaintiff a certain number patient referrals, a certain number of hours, or a certain amount of compensation.
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment, dismissing Plaintiff's claim for breach of contract because no enforceable contract exists.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motion for summary judgment. [ECF No. 82]. Should the district judge agree, Plaintiff's currently pending motion for mediation [ECF No. 86] would be rendered moot.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).