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MCQUEENY v. J. W. FERGUSSON & SONS

November 23, 1981

John M. McQUEENY, Plaintiff,
v.
J. W. FERGUSSON & SONS, INC., Defendant



The opinion of the court was delivered by: BIUNNO

This is a suit brought under diversity jurisdiction, 28 U.S.C. § 1332. McQueeny is a citizen of New York. The defendant (Fergusson) is a Virginia corporation with its principal place of business there as well.

When the complaint was filed on September 18, 1981, there was filed with it a Notice of Motion returnable October 13, 1981 for an order directing issuance of a writ of attachment. This was accompanied by an affidavit and supplemental affidavit of McQueeny, outlining the factual basis of his claim, and an affidavit of an attorney reporting the result of inquiry of the N. J. Secretary of State, and through a searching service, of inquiry of Fergusson's corporate status. The New Jersey certificate shows that Fergusson is not a New Jersey corporation, nor a foreign corporation authorized to do business in New Jersey. The report of the search service says that Virginia records disclosed Fergusson to be a Virginia corporation in good standing, its annual reports current, and having a registered office and named agent at a specified address in Virginia.

 Although the motion carries no proof of service, Fergusson filed papers in opposition and appeared by its attorney. The affidavit of its president indicates the papers were received in Richmond on September 29, 1981, and a New Jersey law firm engaged on October 5, 1981.

 The complaint (and the affidavits for attachment) say, in substance, that McQueeny was hired by Fergusson in 1975 as a sales representative for printed labels for consumer products, including those sold in bottles. He says he was hired on a salary basis plus fringe (use of a company car, major medical, life insurance); and that his employment would continue "indefinitely" unless he failed to produce sales.

 He claims that by his initiative, hard work, effort and expertise, he developed a better grade of paper for labels to be used on plastic PET bottles as they came to replace glass bottles, see Continental Group v. Amoco, 614 F.2d 351 (CA3, 1980), and promoted them for sale to major customers, some of whom have plants in New Jersey.

 In December, 1978, he says Fergusson was so impressed and enthusiastic over his extensive work on labels for the new PET bottles, that his employment terms were modified as follows:

 
... his base salary of $ 32,000 would be raised 10% for 1979, to $ 35,200, he would receive a Christmas bonus check (amount unspecified), and a participation (unspecified) in Fergusson's profit-sharing plan.
 
... he would also receive a bonus of 10% of his label sales for 1979 and thereafter, provided those sales aggregated $ 2 million or more.

 He says his label sales in 1979 and 1980 exceeded $ 2 million in each of those years, and would have exceeded that sum in 1981 had he not been wrongfully terminated September 4, 1981. He says he was terminated for the wrongful purpose of wilfully depriving him of his sales bonuses, to maliciously and wrongfully endeavor to obtain for itself all future sales to customers McQueeny had developed as loyal and satisfied customers without having to pay the 10% bonus agreed on. Despite demands in May, 1979, December, 1979, April, 1980 and thereafter, Fergusson refused to submit an accounting of McQueeny's label sales for 1979, 1980 and 1981, including (among others) labels sold to New Jersey plants of certain customers.

 He says the December, 1978 modification was made by Fergusson with the then calculated and premeditated purpose of not honoring and abiding by it, making intentionally false representations with the knowledge that McQueeny would rely thereon, which he did to his damage. He says he was paid no 10% bonus on his label sales for 1979, 1980 or 1981.

 Another paragraph alleges what amounts to defamation by informing prospective employers not to hire McQueeny.

 He seeks damages, compensatory and punitive, and an accounting for all his label sales for the 3 years involved.

 The opposing affidavit, made on personal knowledge, says that McQueeny was employed as a sales representative from 1975 to about September 4, 1981 on a straight salary basis, and fringes: participation in the profit sharing plan, group medical and life coverage, and use of a ...


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