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CIVIL ACTION
FILE NO. 1:14-cv-02068-WSD
December 31, 2012 and consequently this advance is now due and owing to
DHR.
recoverable net monthly draw payments paid to McGowan in excess of his fees
received.
(2)
standards and customs or usages, and illustrative case law which plaintiff
contends are applicable to this action.
For its First Cause of Action Breach of Contract DHR is relying upon
the parties agreement that the Employment Agreement is to be interpreted
under and governed by the laws of the State of Illinois. Under Illinois law, the
elements of a breach of contract claim are: (1) the existence of a valid and
enforceable contract; (2) performance by the plaintiff; (3) breach of contract by
the defendant; and (4) resultant injury to the plaintiff. See, e.g., Timan v. Ourada,
972 N.E.2d 744, 751 (2nd Dist. 2012).
unambiguous; a contract is not ambiguous because the parties disagree about its
meaning. Gold v. Ziff Communications Co., 265 Ill. App. 3d 953, 963 (1st Dist. 1994).
A conditional bonus is neither an earned bonus nor an earned wage.
McGlaughlin v. Sternberg Lanterns, Inc., 395 Ill. App. 3d 544 (2nd Dist. 2009).
In the alternative, for its Second Cause of Action Unjust Enrichment
DHR is operating under Georgia law, which sets forth that the theory of unjust
enrichment applies when as a matter of fact there is no legal contract, but where
the party sought to be charged has been conferred a benefit by the party
contending an unjust enrichment which the benefited party equitably ought to
return or compensate for. See, e.g., Smith v. McClung, 215 Ga. App. 786, 789 (Ct.
App. 1994).
For its Third Cause of Action Bad Faith DHR is relying upon O.C.G.A.
13-6-11. O.C.G.A. 13-6-11 sets forth that while [t]he expenses of litigation
generally shall not be allowed as a part of the damageswhere the plaintiff has
specially pleaded and has made prayer therefor and where the defendant has
acted in bad faith, has been stubbornly litigious, or has caused the plaintiff
unnecessary trouble and expense, the jury may allow them.
(3)
present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.
For all experts described in Fed.R.Civ.P. 26(a)(2)(B), provide a separate written
report satisfying the provisions of that rule. (Attach expert witness list and
written reports to Initial Disclosures as Attachment B.)
None at this time, though Plaintiff reserves the right to supplement this
disclosure as necessary.
(5)
(6)
persons or legal entities who have a subrogation interest in the cause of action
set forth in plaintiffs cause of action and state the basis and extent of such
interest.
-6-
Not applicable.
MAGILL ATKINSON DERMER LLP
/S/ Ariel E. Shapiro
________________________________
David M. Atkinson
datkinson@madllp.com
Georgia Bar No. 024460
Ariel E. Shapiro
ashapiro@madllp.com
Georgia Bar No. 81067
Promenade, Suite 1750
1230 Peachtree St., NE
Atlanta, Georgia 30309-3591
(404) 892-8884
RUBERRY, STALMACK & GARVEY, LLC
/s/ James J. Berdelle
James J. Berdelle
james.berdelle@rsg-law.com
500 W. Madison Street
Suite 2300
Chicago, Illinois 60661
Telephone: (312) 466-8050
Attorneys for Plaintiff
-7-
information regarding his acceptance of the Offer Letter, the parties agreement
to be bound by the terms and conditions of the Employment Agreement, DHRs
performance pursuant to the terms and conditions of the Employment
Agreement, and Defendants subsequent breach of the terms and conditions of
the Employment Agreement.
2.
-8-
Doug Black, c/o Plaintiffs counsel, c/o Plaintiffs counsel, may have
-9-
of
Employment
Agreement,
Bates
stamped
DHR000023-
DHR000028, DHR000033-DHR000037.
Copies of Offer Letter, Bates stamped DHR000029-DHR000032.
Correspondence
with
attachments,
Bates
stamped
DHR000093.
Summary reports of owed amounts, DHR000093-DHR000097.
Investigation continues.
- 10 -
DHR000038-
of
Employment
Agreement,
Bates
stamped
DHR000023-
with
attachments,
Bates
stamped
DHR000093.
Summary reports of owed amounts, DHR000093 DHR000097.
Investigation continues.
- 11 -
DHR000038-
CERTIFICATE OF SERVICE
Undersigned counsel hereby certifies that the foregoing Initial Disclosures
was filed electronically with the Clerk of Court using the CM/ECF system,
which will automatically send e-mail notification of such filing to the following
attorneys of record:
Warren R. Hall, Jr.
whall@hagllp.com
Elizabeth M. Newton
enewton@hagllp.com
Hall, Arbery, Gilligan, Robert & Shanlever, LLP
Attorneys for Defendant
/S/ Ariel E. Shapiro
____________________________
Ariel E. Shapiro