GUHNE v. CERIDIAN HCM, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GENE GUHNE, )

)

Plaintiff, )

)

v. ) 1:20-cv-925

)

CERIDIAN HCM, INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

This case arises from the termination of Plaintiff Gene

Guhne’s employment with Defendant Ceridian HCM, Inc. (“Ceridian”).

Before the court is Ceridian’s motion for partial judgment on the

pleadings pursuant to Federal Rule of Civil Procedure 12(c) or, in

the alternative, to dismiss in part for forum non conveniens.

(Doc. 15.) While Guhne alleges eight claims, the company moves

for judgment on the pleadings in relation to claims three through

eight, which allege, respectively: (3) unpaid wages under North

Carolina’s Wage and Hour Act (“WHA”), N.C. Gen. Stat. §§ 95-25, et

seq.; (4) breach of contract; (5) fraudulent inducement; (6)

negligent misrepresentation; (7) violations of the North Carolina

Unfair and Deceptive Trade Practices Act (UDTPA), §§ 75-1.1 et

seq.; and (8) unjust enrichment.1 In the alternative, Ceridian

1 Guhne also brings two claims for age discrimination, which are not at

issue in the present motion.

moves for dismissal of claims three and eight for forum non

conveniens. Also before the court is Ceridian’s motion to seal

certain documents. (Doc. 13.) For the reasons set forth below,

the motion for judgment on the pleadings will be granted in part

and denied in part, the alternative motion for forum non conveniens

will be denied as moot, and the motion to seal will be granted.

I. BACKGROUND

The factual allegations of the complaint, as relevant to the

pending motions and viewed in the light most favorable to Guhne,

show the following:

Ceridian sells software that assists businesses with human

resource functions, including payroll, benefits, workforce

management, and talent management. (Doc. 1 ¶ 10.) Up until 2018,

Guhne had a “long and successful career” in sales at one of

Ceridian’s leading competitors, Ultimate Software (“Ultimate”).

(Id. ¶¶ 11–12.)

In early 2018, Guhne was approached by Ceridian’s Chief

Revenue Officer (“CRO”), Ted Malley, to join the company. (Id.

¶ 16.) Ceridian, through Malley, represented that if Guhne

accepted employment with Ceridian, he would quickly be promoted to

Executive Vice President of Global Sales or Senior Vice President

of North America Sales. (Id. ¶ 19.) Knowing that Guhne also had

a “significant equity stake in Ultimate” valued at approximately

$500,000 that would vest in the coming 18 months, Malley also

represented that Guhne would be awarded 75,000 stock options in

Ceridian, subject to approval from the Board of Directors, which

Malley indicated was a “mere formality.” (Id. ¶¶ 17, 19-20, 22;

Doc. 12-1.) In reliance on these representations, Guhne accepted

Ceridian’s offer of employment. (Doc. 1 ¶¶ 17, 22.)

Guhne was compensated in part based on Ceridian’s Sales

Incentive Plan (“the Commission Plan”). (Id. ¶ 58.) The

Commission Plan terms indicated that commission payments “are

earned at the time of payment” and that “Ceridian shall only be

responsible for paying commissions . . . ‘earned’ . . . up to the

effective date of termination.” (Doc. 12-4 at 22, 24.) The

Commission Plan further specified that, “For clarity, no

commissions . . . can be earned after the last month of []

employment with Ceridian.” (Id. at 24.) Under the terms of the

Commission Plan, employees would receive 50% of the commission for

sales worth over five million dollars in the month following the

sale and 50% one year later. (Doc. 1 ¶ 60; Doc. 12-5 at 3.)

In late April 2018, after starting with Ceridian, Guhne was

informed that his stock option award was reduced from the promised

75,000 shares to 40,761 shares, allegedly due to an unexpected

stock split that occurred shortly after he accepted the offer.

(Id. ¶¶ 24, 27.)

In early 2019, under the direction of new President Leigh

Turner, Ceridian’s sales group was reorganized. (Id. ¶¶ 34, 36.)

Instead of being promoted to Executive Vice President of Global

Sales or Senior Vice President of North America Sales, Guhne was

given the role of Head of the East Coast Division. (Id. ¶ 36.)

In that position, he was assigned a number of inexperienced team

members and, as a result, the team did not bring in a large volume

of sales in 2019. (Id. ¶¶ 45-47.) Despite this, Guhne met his

personal sales goals each month and, in December 2019, was able to

land two large accounts, each worth over five million dollars.

(Id. ¶¶ 49-54, 61.) Even so, on November 8, 2019, he was informed

that he would be terminated due to unspecified performance issues,

and he was subsequently terminated on December 31, 2019. (Id.

¶¶ 54-55.)

Thereafter, Guhne was unable to seek re-employment with

Ultimate due to Ultimate’s strict prohibition on re-hiring

individuals who left the company. (Id. ¶¶ 14–15.) Ceridian

allegedly knew of this policy and used it to its advantage by

recruiting and subsequently terminating Guhne specifically to

remove a competing salesperson from the market. (Id.)

On January 23, 2020, consistent with the Commission Plan,

Guhne received payment for 50% of the outstanding commissions for

his December 2019 sales, worth $125,275. (Id. ¶¶ 62, 73.) At

that time, he contacted Ceridian to confirm that he would receive

the remaining 50% of the commissions, but he received no response.

(Id. ¶ 64.)

On April 3, 2020, Guhne filed a charge of discrimination with

the Equal Employment Opportunity Commission (“EEOC”), alleging age

discrimination in violation of the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. (Id. ¶ 65.)

In June 2020, Ceridian informed him that he would not receive

the remaining 50% of the commissions on the sales he made in

December 2019. (Id. ¶ 66.) In light of this, on August 6, 2020,

he filed a charge of retaliation in violation of the ADEA with the

EEOC. (Id. ¶¶ 67-68.)

On October 7, 2020, Guhne filed the present lawsuit. (Doc.

1.) Ceridian timely filed an answer along with five exhibits.

(Doc. 12.) At the same time, Ceridian moved for partial judgment

on the pleadings under Federal Rule of Civil Procedure 12(c) or,

in the alternative, a partial dismissal for forum non conveniens

(Doc. 15), and to seal certain documents submitted with its answer

(Doc. 13). All motions are fully briefed and ready for resolution.

(See Docs. 14, 16, 19, 21.)

II. ANALYSIS

A. Motion for Judgment on the Pleadings

1. Standard of Review

Federal Rule of Civil Procedure 12(c) provides that “[a]fter

the pleadings are closed — but early enough not to delay trial —

a party may move for judgment on the pleadings.” Fed. R. Civ. P.

12(c). A motion for judgment on the pleadings pursuant to Rule

12(c) is analyzed under the same standard as a motion to dismiss

under Rule 12(b)(6). Burbach Broad. Co. of Del. v. Elkins Radio

Corp., 278 F.3d 401, 405–06 (4th Cir. 2002). Under Rule 12(b)(6),

“a complaint must contain sufficient factual matter . . . to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when

the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. In applying this standard, the court

must accept as true the facts alleged in the complaint and all

reasonable inferences must be drawn in the plaintiff’s favor.

Burbach, 278 F.3d at 405–06; Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam); Ibarra v. United States, 120 F.3d 472, 474

(4th Cir. 1997). However, the court “need not accept the legal

conclusions drawn from the facts.” Spaulding v. Wells Fargo Bank,

N.A., 714 F.3d 769, 776 (4th Cir. 2013) (quoting E. Shore Mkts.,

Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir.

2000)). “[L]egal conclusions, elements of a cause of action, and

bare assertions devoid of further factual enhancement fail to

constitute well-pled facts,” and a court does not consider

“unwarranted inferences, unreasonable conclusions, or arguments.”

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,

255 (4th Cir. 2009); see also Iqbal, 556 U.S. at 678 (explaining

that mere legal conclusions are not accepted as true, and

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice”

(alteration in original) (quoting Twombly, 550 U.S. at 555)).

On a Rule 12(c) motion, unlike on a Rule 12(b)(6) motion, the

court may consider the answer as well as the complaint. Alexander

v. City of Greensboro, No. 1:09–CV–293, 2011 WL 3360644, at *2

(M.D.N.C. Aug. 3, 2011). The “factual allegations in the answer

are taken as true to the extent they have not been denied or do

not conflict with the complaint.” Farmer v. Wilson Hous. Auth.,

393 F. Supp. 2d 384, 386 (E.D.N.C. 2004) (internal quotation marks

omitted); see also Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D.N.C.

1991). For the “purposes of this motion[,] [a] [d]efendant cannot

rely on allegations of fact contained only in the answer, including

affirmative defenses, which contradict [the] complaint” because a

plaintiff is “not required to reply to [a] [d]efendant's answer,

and all allegations in the answer are deemed denied.” Jadoff, 140

F.R.D. at 332; see Fed. R. Civ. P. 8(b)(6) (“If a responsive

pleading is not required, an allegation is considered denied or

avoided.”). A motion for judgment on the pleadings is properly

granted only if taking all of the non-moving party's factual

allegations as true, no genuine issues of material fact remain and

the case can be determined as a matter of law. Smith v. McDonald,

562 F. Supp. 829, 842 (M.D.N.C. 1983), aff'd, 737 F.2d 427 (4th

Cir. 1984), aff'd, 472 U.S. 479 (1985); Med–Trans Corp. v. Benton,

581 F. Supp. 2d 721, 728 (E.D.N.C. 2008); see also Priority Auto

Grp., Inc. v. Ford Motor Co., 757 F.3d 137, 139 (4th Cir. 2014).

In “determining a motion for judgment on the pleadings, the

court may consider documents incorporated by reference in the

pleadings” without converting the motion into one for summary

judgment. Farmer, 393 F. Supp. 2d at 386 (internal quotation marks

omitted) (citing Parks v. Alteon, Inc., 161 F. Supp. 2d 645, 649

n.1 (M.D.N.C. 2001)). However, documents attached to the answer

are part of the pleadings for Rule 12(c) purposes only if the

documents are integral to the complaint and authentic. See Goines

v. Valley Cmty. Servs. Bd., 822 F.3d 159, 164 (4th Cir. 2016);

Pulte Home Corp. v. Montgomery Cnty., MD, 909 F.3d 685, 693 (4th

Cir. 2018) (applying Goines in the 12(c) context). A document is

considered integral to the complaint where the complaint relies

heavily upon its terms and effect, or the document has an

independent legal significance to the claim. See Goines, 822 F.3d

at 166. “When the plaintiff . . . incorporates a document upon

which his claim is based, or when the complaint otherwise shows

that the plaintiff has adopted the contents of the document,” the

court may credit the document over conflicting allegations in the

complaint. Id. at 167. However, it is inappropriate to treat the

contents of a document as true where the plaintiff incorporates

the document for purposes other than its truthfulness. Id. “The

purpose for which the document is offered is particularly important

where the document is one prepared by or for the defendant.” Id.

at 168.

2. Documents Attached to the Answer

Ceridian has attached five exhibits to its answer that it

contends the court should consider: Ceridian’s offer letter to

Guhne (Doc. 12-1); Ceridian’s 2018 equity incentive plan

prospectus (Doc. 12-2); a consent form to Ceridian’s Commission

Plan’s terms and conditions (Doc. 12-3); Ceridian’s 2019 global

sales policy (Doc. 12-4); and Guhne’s 2019 personal sales incentive

compensation plan (Doc. 12-5). Guhne argues that the court should

not consider these documents as part of the pleadings because

“their existence is not admitted on the face of the [c]omplaint

and they are deemed disputed.” (Doc. 19 at 8 (internal quotation

marks omitted).) In response, Ceridian argues that each of the

documents is authentic and central to Guhne’s claims. (Doc. 21 at

2.) Before proceeding to the dispositive motion, therefore, the

court must examine each document to determine whether it should be

considered in assessing whether Guhne’s claims are plausibly

stated.

a. The Offer Letter

Ceridian first attaches a copy of Ceridian’s offer letter to

Guhne dated March 20, 2018. (Doc. 12-1.) Although Guhne argues

that the existence of this document is not admitted on the face of

the complaint (Doc. 19 at 7-8), this is inaccurate. The complaint

specifically indicates that Guhne’s breach of contract claim is

based on his written offer of employment. (See Doc. 1 ¶¶ 105–06

(“As part of the offer of employment . . . Guhne was assured, in

writing, that Ceridian’s Board of Directors, would approve th[e

stock option] award if [] Guhne accepted the offer of employment

. . . . Guhne accepted Ceridian’s offer of employment.”) (emphasis

added); see also id. ¶¶ 28-29.) Moreover, the document is integral

to the complaint in that Guhne’s breach of contract claim is based

upon Ceridian’s alleged violation of the terms of the offer letter.

(Id. ¶¶ 105-108.) Because the offer letter is both integral to

the complaint and its existence is not disputed, it may be

considered in evaluating the present motion.2

b. The Equity Incentive Plan Prospectus

Ceridian next attaches a copy of its 2018 equity incentive

plan prospectus. (Doc. 12-2.) Ceridian argues that this

prospectus is integral to the complaint because the prospectus is

incorporated in the offer letter and is central to several of

2 Although Guhne suggests that the offer letter is inadmissible because

Ceridian failed to authenticate it, documents may be considered on a

Rule 12(c) motion if “the authenticity is not challenged.” Mendenhall

v. Hanesbrands, Inc., 856 F. Supp. 2d 717, 724 (M.D.N.C. 2012). Here,

Guhne’s opposition fails to actually challenge the authenticity of the

offer letter. (See Doc. 19 at 7-9.) Additionally, in reply to Guhne’s

opposition, Ceridian has authenticated the offer letter through the

affidavit of Susan Tohyama. (Doc. 21-1.)

Guhne’s claims.3 (Doc. 21 at 2.) However, unlike the offer letter,

the prospectus is never mentioned or incorporated by reference on

the face of the complaint. (See Doc. 1.) Additionally, the

prospectus does not appear to be integral to Guhne’s claims

because, while he makes claims relating to the issuance of stock,

his claims do not arise from representations made within the

prospectus. Rather, the claims pertaining to his stock options

involve the oral representations made by Malley. While the

prospectus may be integral to Ceridian’s defenses, it cannot be

considered at the pleadings stage on that basis. Because the

complaint does not explicitly incorporate the prospectus and the

prospectus lacks an independent legal significance to Guhne’s

claims, its existence is deemed disputed and the court will not

consider it here.4

c. Commission Plan Documents

Ceridian lastly offers a consent form to Ceridian’s

Commission Plan’s terms and conditions (Doc. 12-3), Ceridian’s

2019 global sales policy (Doc. 12-4), and a copy of Guhne’s 2019

sales incentive compensation plan (Doc. 12-5), collectively “the

3 Although the offer letter references Ceridian’s 2013 equity incentive

plan prospectus (Doc. 12-1), Ceridian has submitted an unchallenged

affidavit and exhibit showing that the 2013 and 2018 prospectuses are

the same (see Doc. 21-1).

4 As mentioned above, the prospectus is referenced in the offer letter.

(See Doc. 12-1.) However, the court is unwilling to accept the document

as integral to the complaint on that basis alone.

commission plan documents.” Ceridian argues that these documents

are the “sole basis for determining Guhne’s entitlement to

commissions” which is key to his claim of unpaid wages under the

WHA. (Doc. 21 at 2.) Although Guhne does not challenge the

authenticity of these documents, he argues that the existence of

these documents is not admitted on the face of the complaint and

contests their relevance. (See Doc. 19 at 8-9.) Yet, the

complaint contains multiple references to Ceridian’s Commission

Plan. (See Doc. 1 ¶¶ 58-60 (describing administration of the

Commission Plan and explaining “Guhne was entitled to participate

in Ceridian’s [Commission Plan] . . . . Guhne was entitled to earn

commissions . . . [p]ursuant to the Commission Plan which was

revised in 2019”).) In addition to admitting the existence of the

plan, Guhne plainly bases his claim for unpaid wages on it. (See

id. ¶¶ 98–100 (“Ceridian has not paid [] Guhne commissions . . .

pursuant to Ceridian’s commission policy.”).) As the existence of

the Commission Plan is admitted on the face of the complaint and

his claim for unpaid wages is based on it, the commission plan

documents may be considered in the present motion as integral to

the complaint and authentic.

Having resolved the scope of the documents that can properly

be considered at this stage, the court turns to the specific claims

being challenged.5

3. Unpaid Wages Under the Wage and Hour Act

Guhne brings a claim for one violation of the WHA based upon

Ceridian’s failure to pay him the outstanding 50% commissions on

his December 2019 sales. (Id. ¶¶ 98-99.) Ceridian argues that

judgment on the pleadings is appropriate because Guhne was paid

all commissions that he earned under the Commission Plan and any

outstanding commissions were forfeited upon his termination, as

provided by the Commission Plan. (Doc. 16 at 10–12.) In response,

Guhne argues that he is entitled to payment for all commissions on

sales he made during the employment relationship and that Ceridian

was prevented from rescinding those commissions. (Doc. 19 at 10–

11.)

The WHA and its related regulations recognize and protect

commissions as wages. See N.C. Gen. Stat. § 95–25.2 (defining

“wages” to includes commissions); 13 N.C.A.C. 12.0307(a)

(permitting employers to pay wages as commissions). In line with

5 Ceridian moves for judgment on claims three through eight pursuant to

Rule 12(c) or, in the alternative, dismissal of claims three and eight

for forum non conveniens. “A forum non conveniens dismissal denies

audience to a case on the merits; it is a determination that the merits

should be adjudicated elsewhere.” Sinochem Int'l Co. v. Malaysia Int'l

Shipping Corp., 549 U.S. 422, 432 (2007) (internal punctuation and

citations omitted). As the motion for dismissal for forum non conveniens

is pleaded in the alternative, Ceridian seeks consideration of the merits

of its motion first. (See Doc. 16 at 22 (“If the Court declines to

dismiss Claims Three and Eight with prejudice for failure to state a

claim, then it should dismiss these claims without prejudice pursuant

to the forum non conveniens doctrine.”).) For this reason, the court

reaches the Rule 12(c) motion first.

these regulations, an employer must “notify employees of the

employer[‘s] policies and practices concerning pay, [and] wages

based on . . . commissions,” 13 N.C.A.C. 12.0307(b), including

under what conditions commissions will be paid upon termination of

employment, 13 N.C.A.C. 12.0307(d)(2). An employee “whose

employment is discontinued for any reason shall be paid all wages

due.” N.C. Gen. Stat. § 95–25.7. “Wages based on . . . commissions

. . . shall be paid on the first regular payday after the amount

becomes calculable when a separation occurs.” Id. “Such wages

may not be forfeited unless the employee has been notified in

accordance with [N.C. Gen. Stat. §] 95–25.13 of the employer's

policy or practice which results in forfeiture.” Id. If the

employee is “not so notified,” he is “not subject to such loss or

forfeiture.” Id. Section 95-23.13 provides that employers must

“(1) [n]otify its employees, orally or in writing at the time of

hiring, of the promised wages and the day and place for payment;

[and] (2) [m]ake available to its employees, in writing[,] . . .

employment practices and policies with regard to promised wages.”

Ambiguous policies and practices are “construed against the

employer and in favor of employees.” 13 N.C.A.C. 12.0307(c).

The parties contest when Guhne is considered to have earned

the second half of his commission payments.6 Guhne argues that he

6 The parties agree that Guhne earned the first half of the relevant

commission payments and was paid them in January 2020. (See Doc. 16 at

earned 100% of the commissions because he performed the work

required to earn the commissions prior to his termination, citing

this court’s opinion in Irwin v. Fed. Express Corp., No. 1:14-CV-

00557, 2016 WL 7053383, at *8 (M.D.N.C. Dec. 5, 2016) (“Earned

wages are those wages and benefits due when the employee

has actually performed the work required to earn them.” (quoting

Whitley v. Horton, No. COA03–1459, 2005 WL 351143, at *5 (N.C. Ct.

App. 2005) (internal quotation marks omitted) (emphasis in

original)). (Doc. 19 at 10.) Guhne also points to his 2019 sales

incentive compensation plan which indicates that commissions on

sales worth over five million dollars “will be paid [not earned]

on 50% at time of booking and 50% after 12 months.” (Doc. 12-5 at

3 (emphasis added).) Meanwhile, Ceridian points to the definition

of “earned” in the 2019 global sales policy to show that Guhne did

not earn the commissions merely by performing the work, but at the

time of payment. (Doc. 12-4 at 22 (“All other incentive plan

elements . . . are earned at the time of payment.” (emphasis in

original)).).7 Regardless, however, of which definition of

12; Doc. 19 at 11.)

7 Guhne contends that “payment” is ambiguous, as it could mean either

payment by Ceridian, or payment by the client to Ceridian. (Doc. 19 at

14-15.) This is not a reasonable reading of the documents. The documents

revolve around the payment of commissions by Ceridian to employees, not

payment by clients. (See Doc. 12-3 at 2 (“The [Commission] Plan sets

forth the terms and conditions under which the employee . . . could

receive incentive payments from Ceridian . . . .”).) In line with that,

the documents consistently use the term “payment” to refer to payments

by Ceridian to employees. For example, the 2019 sales incentive

“earned” is applied, by the terms of the Commission Plan, Guhne

forfeited his right to payment when his employment was terminated.

Pursuant to the WHA, certain earned wages – including

commissions – may be forfeited with appropriate notice. Here, the

Commission Plan is clear: “In the case of a termination . . .

Ceridian shall only be responsible for paying out

commissions/bonuses ‘earned’, as previously defined, up to the

effective date of termination . . . . For clarity, no

commissions/bonuses can be earned after the last month of (i)

employment with Ceridian . . . .” (Doc. 12-4 at 24 (emphasis in

original).) Combined with the Commission Plan’s indication that

commissions “are earned at the time of payment,” (id. at 22), and

that 50% of the commissions for sales worth over five million

dollars are paid one year after the sale (12-5 at 3), it is

unambiguous that a condition to receiving certain commissions is

to remain employed with Ceridian through the one-year period

following the first billing event. Guhne has not alleged that he

did not receive the commission plan documents that outline the

Commission Plan – in fact, a number of his claims are based

compensation plan (upon which Guhne relies) refers to “payment timing”

in discussing when employees will receive commission payments. (Doc.

12-5 at 3.) The same document includes a “payment schedule” that shows

the dates when employees can expect payment. (Id.) There is no

indication from any of the commission plan documents that the term

“payment” is used to refer to payments from clients; the only reference

to payments by clients is the phrase “billing event.” (See Doc. 12-4

at 22; Doc. 17-1 at 3.)

expressly on that plan. (See e.g., Doc. 1 ¶¶ 98–100.) As the

Commission Plan clearly outlines the requirements to receive

commissions, including the one-year anniversary provision, Guhne

has received appropriate notice in line with N.C. Gen. Stat. § 95-

23.13. Therefore, his right to the remaining 50% of the December

2019 commissions is considered forfeited under the WHA. See also

McCabe v. Abbott Labs., Inc., 47 F. Supp. 3d 339, 348 (E.D.N.C.

2014). Judgment on this claim will be rendered in favor of

Ceridian.8

4. Breach of Contract

Ceridian next moves for judgment as to Guhne’s claim that it

breached the terms of its offer letter. The complaint alleges

that, “[a]s part of the offer of employment to [] Guhne, Ceridian

promised 75,000 shares of stock options in Ceridian. [] Guhne was

assured, in writing, that Ceridian’s Board of Directors, would

approve this award.” (Doc. 1 ¶ 105.) In response, Ceridian

argues, first, that it did not breach the terms of the offer

because the offer promised only that Ceridian would “recommend

that [its] Board of Directors provide” Guhne with the 75,000 shares

of stock, which is not sufficiently definite to constitute an

enforceable promise. (Doc. 16 at 14; see Doc. 12-1.) Second,

8 To the extent Guhne argues that Ceridian denied him further commissions

in bad faith based upon the filing of his ADEA claim (Doc. 19 at 16),

it is duplicative of his retaliation claim (Doc. 1 ¶ 90), which is not

currently under consideration.

Ceridian argues, even if the promise were sufficiently definite to

constitute a binding promise, Ceridian lived up to its obligation

by making the subject recommendation. (Doc. 16 at 14.)

By the terms of Guhne’s offer letter, the offer is governed

by the laws of Minnesota.9 (Doc. 12-1 at 3.) Under Minnesota law,

the essential elements for a breach of contract claim are the

existence of a valid contract and a breach of the terms of that

contract. Olson & Assocs. v. Leffert, Jay & Polglaze, 756 N.W.2d

907, 918 (Minn. Ct. App. 2008). For a promise to be contractually

enforceable, the promise must be both specific and definite. Pine

River State Bank v. Mettille, 333 N.W.2d 622, 626–27 (Minn. 1983).

Where an alleged contract is so vague, indefinite, and uncertain

as to render the meaning and intent of the parties subject to

speculation, the agreement is void and unenforceable. King v.

Dalton Motors, Inc., 109 N.W.2d 51, 52 (Minn. 1961).

Here, Ceridian argues that there was no enforceable promise

because it merely indicated that it would recommend a specific

course of action and recommendations “allow for discretion” such

that “they do not constitute specific and definite enforceable

promises.” (Doc. 21 at 7.) This argument is unavailing. Per the

terms of the offer letter, Ceridian promised to make a specific

recommendation to the Board to grant Guhne 75,000 shares of stock.

9 The parties do not contest this. (See Doc. 16 at 13–14 (citing

Minnesota law); Doc. 19 at 18 (same).)

(Doc. 12-1.) Although this does not constitute a binding promise

for 75,000 shares, it certainly constitutes a binding promise to

make such a recommendation. The promise is neither vague nor

indefinite. As such, there surely was a contractual agreement to

make the recommendation to the Board.

Ceridian next argues that even if there were a binding

agreement to make the subject recommendation, Ceridian lived up to

its obligation by making that recommendation. (Doc. 16 at 14.)

Guhne argues in response that, based on the totality of the

circumstances, Ceridian was not only required to make the subject

recommendation, but also to actually award the promised 75,000

shares. (Doc. 19 at 18-19.)

“The parol evidence rule makes inadmissible evidence

concerning discussions prior to or contemporaneous with the

execution of a written instrument when that evidence contradicts

or varies the terms of the written agreement.” Material Movers,

Inc. v. Hill, 316 N.W.2d 13, 17 (Minn. 1982) (citations omitted).

Where an agreement is ambiguous or incomplete, extrinsic evidence

is admissible to establish the parties’ intent. Id. Although

“[a] determination of whether the written document is a complete

and accurate ‘integration’ of the terms of the contract is not

made solely by an inspection of the writing itself,” Bussard v.

Coll. of St. Thomas, Inc., 200 N.W.2d 155, 161 (Minn. 1972), “[a]

merger clause establishes that the parties intended the writing to

be an integration of their agreement.” Alpha Real Est. Co. of

Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 312 (Minn.

2003).

Here, Guhne argues that the court should consider Malley’s

representations, made prior to the issuance of the offer letter,

that the Board’s approval was a “mere formality,” such that the

offer letter should be interpreted as containing a binding promise

to award Guhne 75,000 in stock options. However, the text of the

employment offer — which promises only that a recommendation would

be made – conflicts with Guhne’s proposed interpretation of the

contract. Further, the offer contains an express merger clause,

providing:

Your acceptance of this offer represents the sole

agreement between you and Ceridian. No promises,

representations, or understandings are part of this

agreement unless referred to in this letter or the signed

attachments to this letter.

(Doc. 12-1 at 3.) This indicates that the parties intended the

letter to be a complete and accurate representation of their

agreement. There are no countervailing facts that would suggest

that the parties intended otherwise. As such, the court declines

to consider representations allegedly made by Malley prior to the

issuance of the offer letter to modify its written terms.

However, an issue of fact remains. Specifically, Guhne has

alleged that Ceridian did not, in good faith, make the promised

recommendation to the Board. (Doc. 19 at 19; see also Doc. 1

¶¶ 23-27.) Although Ceridian contends that it “indisputably made”

the promised recommendation and awarded more stock than promised

after a stock split (Doc. 16 at 14), neither party’s pleadings

speak directly to this issue. As such, whether or not this issue

is amenable to summary judgment, judgment on the pleadings will be

denied.

5. Fraudulent Inducement and Negligent

Misrepresentation

Ceridian next seeks judgment as to Guhne’s claims for

fraudulent inducement and negligent misrepresentation. As these

claims are based on the same conduct and Ceridian’s response to

both is the same (see Doc. 16 at 19), the claims are considered

here jointly.

Guhne alleges that Ceridian, with the intent of removing a

competitor from the marketplace, promised Guhne 75,000 shares of

stock options and a quick promotion to Executive Vice President of

Global Sales or Senior Vice President of North America Sales.

(Doc. 1 ¶¶ 110–34.) At the time of the representations, Guhne

argues, Ceridian knew or should have known that they were false

and calculated to deceive Guhne into accepting Ceridian’s offer of

employment. (Id.) In response, Ceridian argues that these claims

fail as a matter of law because the alleged promises were not

material misrepresentations, the promises were superseded by the

offer letter and barred by its merger clause, and any reliance on

promises that conflicted with the terms of the offer letter was

unreasonable.10 (Doc. 16 at 17; Doc. 21 at 7-8.) In response,

Guhne argues that the promises were definite and clear material

misrepresentations, and that the reasonableness of his reliance is

a question of fact for the jury. (Doc. 19 at 20-21.)

The essential elements of fraud in the inducement are: (i)

the defendant made a false representation or concealed a material

fact he had a duty to disclose; (ii) the false representation

related to a past or existing fact; (iii) the defendant made the

representation knowing it was false or made it recklessly without

knowledge of its truth; (iv) the defendant made the representation

10 Ceridian also suggests in a footnote that Guhne has failed to meet the

heightened pleading standards of Federal Rule of Civil Procedure 9(b).

(Doc. 16 at 15 n.6.) Guhne does not respond to this argument. Even so,

the argument is unavailing. Under Rule 9(b), while mental states may

be pleaded generally, parties must plead with particularity “the time,

place, and contents of the false representations, as well as the identity

of the person making the misrepresentation and what he obtained thereby.”

U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379

(4th Cir. 2008) (citing Harrison v. Westinghouse Savannah River Co., 176

F.3d 776, 784 (4th Cir. 1999)); Fed. R. Civ. P. 9(b). District courts

are reminded that the purposes of this heightened pleading standard are

to give a defendant sufficient notice to formulate a defense, to protect

against frivolous suits, to eliminate suits where all the fraud facts

are learned after discovery, and to protect defendants from harm to their

goodwill and reputation. Humana, Inc. v. Ameritox, LLC, 267 F. Supp.

3d 669, 677 (M.D.N.C. 2017) (citing Harrison, 176 F.3d at 784). Thus,

“[a] court should hesitate to dismiss a complaint under Rule 9(b) if the

court is satisfied (1) that the defendant has been made aware of the

particular circumstances for which [it] will have to prepare a defense

at trial, and (2) that plaintiff has substantial prediscovery evidence

of those facts.” Harrison, 176 F.3d at 784. These goals are satisfied

here. Guhne alleges that the misrepresentations were made to him by CRO

Malley in early 2018, in discussions leading up to his acceptance of

Ceridian’s offer in April 2018. He further identifies with particularity

the misrepresentations made and what Ceridian gained thereby, and he

alleges that Ceridian authorized Malley to make the misrepresentations.

intending to deceive the plaintiff; (v) the plaintiff reasonably

relied on the representation and acted upon it; and (vi) the

plaintiff suffered injury. Johnson v. Phoenix Mut. Life Ins. Co.,

266 S.E.2d 610, 615 (N.C. 1980); see also Myers & Chapman, Inc. v.

Thomas G. Evans, Inc., 374 S.E.2d 385, 391 (N.C. 1988). “[A]

misrepresentation or omission is ‘material’ if, had it been known

to the party, it would have influenced the party's judgment or

decision to act.” Piazza v. Kirkbride, 827 S.E.2d 479, 489 (N.C.

2019) (quoting Latta v. Rainey, 689 S.E.2d 898, 909 (N.C. Ct. App.

2010)). Although “a mere promissory representation will not

support an action for fraud,” Augustson v. Bank of Am., N.A., 864

F. Supp. 2d 422, 431 (E.D.N.C. 2012) (quoting Braun v. Glade Valley

Sch., Inc., 334 S.E.2d 404, 407 (N.C. Ct. App. 1985)), “[a]

promissory misrepresentation may constitute actionable fraud when

it is made with intent to deceive the promisee, and the promisor,

at the time of making it, has no intent to comply,” Phoenix Mut.,

266 S.E.2d at 616. See also Vincent v. Corbett, 94 S.E.2d 329,

331 (N.C. 1956). Similarly, “[t]he tort of negligent

misrepresentation occurs when a party justifiably relies to his

detriment on information prepared without reasonable care by one

who owed the relying party a duty of care.” Raritan River Steel

Co. v. Cherry, Bekaert & Holland, 367 S.E.2d 609, 612 (N.C. 1988)

(citations omitted). To establish justified reliance, a party

must make a reasonable inquiry regarding the alleged statement.

Dallaire v. Bank of Am., N.A., 760 S.E.2d 263, 267 (N.C. 2014)

(citing Pinney v. State Farm Mut. Ins. Co., 552 S.E.2d 186, 192

(N.C. Ct. App. 2001)).

Ceridian’s first argument – that Malley’s alleged

misrepresentations to Guhne were not material – fails at the

present stage. Ceridian argues that Malley made no material

misrepresentation because the alleged statements involved future

unknown occurrences and therefore constitute promissory

representations. Although a “mere promissory representation” will

generally not support an action for fraud, a promissory

misrepresentation may constitute fraud if the misrepresentation is

made with intent to deceive and with no intent to comply with the

stated promise or representation. Phoenix Mut., 266 S.E.2d at

616. At this stage, Guhne has pleaded that the misrepresentations

were material in that they caused him to leave his employment with

Ultimate. (Doc. 1 ¶ 117.) He further alleges that these

misrepresentations were made with knowledge of their falsity with

intent to deceive. (Id. ¶ 116.) As the court must accept the

allegations of the complaint as true at the current stage, this is

sufficient to survive judgment on the pleadings.

Similarly, Ceridian’s argument that Guhne’s claims are barred

by the merger clause fails as well. Under North Carolina law,

“[w]here [as here] there is a claim for fraud in the inducement,

defenses based upon the fraudulently induced contract will not bar

the claim.” Tradewinds Airlines, Inc. v. C–S Aviation Servs., 733

S.E.2d 162, 169 (N.C. Ct. App. 2012), disc. rev. denied, 743 S.E.2d

189 (N.C. 2013); see also Laundry Mach. Co. v. Skinner, 34 S.E.2d

190, 192–93 (N.C. 1945) (holding that parol evidence could be

introduced in contravention of an integration clause in a contract

where there was fraud in the inducement, which “vitiates the

contract”); Zinn v. Walker, 361 S.E.2d 314, 318 (N.C. Ct. App.

1987) (holding that merger clauses, while generally upheld, will

not bar claims where fraud, bad faith, or negligent omissions are

established); Silicon Knights, Inc. v. Epic Games, Inc., No. 5:07-

CV-275-D, 2011 WL 1134453, at *11 (E.D.N.C. Jan. 25, 2011) (“[T]he

weight of authority holds that disclaimers should not be given

preclusive effect where there is a triable issue that entry into

the agreement containing the disclaimer was induced by fraud or

negligent misrepresentation by the party invoking the disclaimer,

as here.”), report and recommendation adopted, No. 5:07-CV-275-D,

2011 WL 1134447 (E.D.N.C. Mar. 24, 2011). Thus, the mere existence

of a merger clause will not bar Guhne’s claim for fraudulent

inducement or negligent misrepresentation.

The remaining issue is whether Guhne has sufficiently alleged

reasonable reliance on the alleged misrepresentations. In

fraudulent inducement and negligent misrepresentation claims, the

question of reasonable reliance is similar. Marcus Bros. Textiles,

Inc. v. Price Waterhouse, LLP, 513 S.E.2d 320, 327 (N.C. 1999).

For both causes of action, whether the plaintiff reasonably relied

on the defendant's representations is ordinarily a question for

the jury “unless the facts are so clear as to permit only one

conclusion.” Id. (internal citation omitted). Where a plaintiff

alleges misrepresentations that are “directly contrary” to the

express terms of a written contract, reliance is unreasonable as

a matter of law. Abbington SPE, LLC v. U.S. Bank, Nat'l Ass'n,

352 F. Supp. 3d 508, 518 (E.D.N.C. 2016) (collecting

cases), aff'd, 698 F. App'x 750 (4th Cir. 2017).

Here, Guhne alleges two material misrepresentations: (1) the

promise of his quick promotion to Executive Vice President of

Global Sales or Senior Vice President of North America Sales and

(2) the promise to grant him 75,000 shares of stock options. These

representations are in tension with the terms of his offer letter,

which provide that Guhne was to be hired into a position of

District Vice President Sales, Enterprise and that a

recommendation would be made to the Board to grant him 75,000

shares of common stock. The issue is whether Guhne has

successfully pleaded reasonable reliance despite this tension. In

relation to the promise of a quick promotion, Guhne has failed to

do so. Although the merger clause does not bar Guhne’s claim for

fraudulent inducement or negligent misrepresentation, the terms of

the merger clause are contrary to the promise of a promotion such

that reliance upon that promise was unreasonable as a matter of

law. The merger clause indicates that “[n]o promises,

representations, or understandings are part of this agreement

unless referred to in this letter.” (Doc. 12-1 at 3.) The promise

of a quick promotion, or any reference to future promotions, do

not appear within the offer letter. Therefore, the alleged promise

of a quick promotion is directly contrary to the terms of the offer

letter, and reliance on such promise would be unreasonable as a

matter of law.11

In relation to the promise of stock options, however, the

facts are not “so clear as to permit only one conclusion.” Compare

Int'l Harvester Credit Corp. v. Bowman, 316 S.E.2d 619, 621 (N.C.

Ct. App. 1984) (finding facts clear, despite guarantors’

indication that they subjectively did not know that they could

incur future obligations, where the guaranty contract indicated

the guarantors “may hereafter” become liable) and Eastway Wrecker

Serv., Inc. v. City of Charlotte, 599 S.E.2d 410, 414 (N.C. Ct.

App. 2004) (finding reliance unreasonable where plaintiff relied

on representations made by City personnel regarding contract

variations while the contract itself provided that only the City

Manager could approve variations), aff'd, 622 S.E.2d 495 (N.C.

2005) with Marcus Bros., 513 S.E.2d at 328 (finding facts not

11 The terms of the alleged promise are also quite vague. Although Guhne

has identified two positions to which he was allegedly promised a

promotion, he does not identify when such promotions were promised to

occur, nor does he detail other material aspects of the promotion, such

as his expected salary.

clear where creditor relied on financial statements showing a

general partner owed money to the company, but the creditor was

unaware that the general partner had no assets and the debt was

worthless). Here, the promise of 75,000 shares of stock options

is not directly contrary to the recommendation for 75,000 shares

set out in the offer letter. The promise was allegedly made by a

high-level executive who told Guhne that “while the stock options

required approval by Ceridian’s Board of Directors, such approval

was only a mere formality and that the Board always approved the

awards as offered.” (Doc. 1 ¶ 20.) The promise is not inconsistent

with the offer letter in that Guhne could have both been promised

a recommendation for a stock award and also been assured that the

Board’s approval was a certainty.12 Given this, the reasonableness

of Guhne’s reliance cannot clearly be determined as a matter of

law but raises an issue of fact. Therefore, Ceridian’s motion for

judgment on the pleadings in relation to Guhne’s fraudulent

inducement and negligent misrepresentation claims to the extent

the claims relate to the alleged promise of 75,000 stock options

12 The merger clause indicates that “[n]o promises, . . . are part of

this agreement unless referred to in this letter.” (Doc. 12-1 at 3

(emphasis added).) At the present stage, it is unclear what it means

for a promise to be “referred to” in the letter, which mentions the

recommendation of 75,000 shares. However, “any determination regarding

the effect of the merger clause would require construction of the

contracts and factual determinations beyond the scope of a Rule 12(b)(6)

motion.” Kaplan Cos. v. PeopleSoft USA, Inc., No. 1:03CV01014, 2005 WL

8167093, at *5 (M.D.N.C. Jan. 19, 2005).

will be denied.

To the extent Ceridian argues that judgment on the pleadings

is appropriate because Ceridian did not make any false statements

with an intent to deceive (Doc. 16 at 18), this is an issue of

fact. The pleadings sufficiently allege that the statements made

by Malley were false and intended to induce Guhne to accept

employment with Ceridian. Whether these claims are true is not

suitable for resolution at the present stage.13

6. UDTPA

Ceridian next moves for judgment as to Guhne’s claim for

violations of the UDTPA, which alleges that Ceridian made false

representations to induce Guhne to leave Ultimate in order to

injure its competition. (Doc. 1 ¶¶ 110-22.) Ceridian argues that

judgment on the pleadings is appropriate because the acts alleged

are not unfair or deceptive under the UDTPA, and because the UDTPA

does not apply to acts within an employer-employee relationship.

13 Ceridian also suggests in a footnote that judgment on the pleadings

is appropriate as to the negligent misrepresentation claim because Guhne

has not alleged that Ceridian owed a duty of care. (Doc. 16 at 19 n.7.)

Under North Carolina law, a breach of duty in negligent misrepresentation

claims occurs when, “[o]ne who, in the course of his business, profession

or employment . . . supplies false information for the guidance of others

in their business transactions, [and thus] is subject to liability for

pecuniary loss caused to them by their justifiable reliance upon the

information, if he fails to exercise reasonable care or competence in

obtaining or communicating the information.” Jordan v. Earthgrains

Baking Cos., 576 S.E.2d 336, 340 (N.C. Ct. App. 2003) (citations

omitted). Although Guhne’s complaint appears to allege facts showing

that Malley met this standard, neither party has sufficiently argued

this issue. As such, judgment on the pleadings on this basis will be

denied.

(Doc. 16 at 20-21.) In response, Guhne argues that the alleged

fraudulent statements can serve as the basis for a claim because

they were made prior to the existence of an employer-employee

relationship and with the intention of harming Ceridian’s

competitor. (Doc. 19 at 23.)

Under the UDTPA, “unfair or deceptive acts or practices in or

affecting commerce” are unlawful. N.C. Gen. Stat. § 75-1.1(a).

“In order to establish a prima facie claim for unfair trade

practices, a plaintiff must show: (1) the defendant committed an

unfair or deceptive act or practice, (2) the action in question

was in or affecting commerce, and (3) the act proximately caused

injury to the plaintiff.” Bumpers v. Cmty. Bank of N. Va., 747

S.E.2d 220, 226 (N.C. 2013) (brackets and internal citations

omitted). An act or practice is considered unfair if it “is

immoral, unethical, oppressive, unscrupulous, or substantially

injurious to consumers” and deceptive if it “has the capacity or

tendency to deceive.” Bob Timberlake Collection, Inc. v. Edwards,

626 S.E.2d 315, 322–23 (N.C. Ct. App. 2006) (quoting Marshall v.

Miller, 276 S.E.2d 397, 403 (N.C. 1981)).

Ceridian’s arguments that the acts alleged are not unfair or

deceptive under the UDTPA rely on the same arguments it brings in

relation to Guhne’s fraudulent inducement and negligent

misrepresentation claims. (Doc. 16 at 19.) The court has already

found those arguments unpersuasive, in part, for the reasons stated

in Section E. supra. In line with that analysis, as it pertains

to the alleged promise of 75,000 shares of stock options, judgment

on his UDTPA claim will not be granted on this basis; however,

judgment will be granted in favor of Ceridian on his UDPTA claim

to the extent it is based upon the promise of a quick promotion.

See Section E., supra.

Ceridian’s next contention is that the UDTPA does not apply

in the context of an employer-employee relationship because

transactions internal to a single company are not “in or affecting

commerce.” While it is true that the UDTPA generally does not

apply to employer-employee disputes, where “the gravamen of

[plaintiff’s] [c]omplaint involves alleged fraudulent statements

made prior to employment and designed to induce [plaintiff] to

enter into an employment relationship,” the claim survives. Fusco

v. Northpoint Erm, LLC, No. 3:15CV289, 2016 WL 164329, at *3

(W.D.N.C. Jan. 13, 2016) (citing United Labs., Inc. v. Kuykendall,

370 S.E.2d 375 (N.C. 1988)). Here, the alleged misrepresentations

were made prior to the existence of an employer-employee

relationship, the statements were allegedly made to injure

Ceridian’s competition, and Guhne suffered injuries as a result.

The court is therefore disinclined to dismiss the claim as Guhne

has stated a plausible violation of the UDTPA in so far as it

relates to the alleged promise of 75,000 shares of stock.14

7. Unjust Enrichment

Ceridian next moves for judgment as to Guhne’s unjust

enrichment claim. Pleading in the alternative, Guhne bases his

claim on both the nonpayment of his commissions and Ceridian’s

failure to provide him with the full 75,000 stock options that he

was allegedly promised. (Doc. 1 ¶¶ 149–50.) Ceridian argues that

judgment on the pleadings should be granted because these claims

and the relationship between the parties is expressly governed by

a contract. (Doc. 16 at 21.) Ceridian also argues that Guhne has

received all compensation he was promised. (Doc. 16 at 22.) Guhne

replies that dismissal of this claim is premature because it is

pleaded in the alternative and that any contention about the value

of the stock he received raises an issue of fact not amenable to

decision at this stage. (Doc. 19 at 16–17.)

The elements of an unjust enrichment claim under North

Carolina law are: “(1) plaintiff conferred a measurable benefit to

defendant, (2) defendant knowingly and voluntarily accepted the

benefit, and (3) the benefit was not given gratuitously.” TSC

Rsch. LLC v. Bayer Chems. Corp., 552 F. Supp. 2d 534, 540 (M.D.N.C.

2008). The doctrine of unjust enrichment applies in “circumstances

14 Guhne does not re-allege his claims pertaining to the nonpayment of

his commissions in this cause of action. (See Doc. 1 ¶¶ 138-40.) Rather,

this cause of action is limited to the representations made to him prior

to the acceptance of Ceridian’s offer. (See id.)

where it would be unfair for the recipient to retain [benefits]

without the contributor being repaid or compensated.” Homeq v.

Watkins, 572 S.E.2d 871, 873 (N.C. Ct. App. 2002) (quoting Collins

v. Davis, 315 S.E.2d 759, 761 (N.C. Ct. App. 1984)). “In order to

properly set out a claim for unjust enrichment, a plaintiff must

allege that property or benefits were conferred on a defendant

under circumstances which give rise to a legal or equitable

obligation on the part of the defendant to account for the benefits

received.” Id. (quoting Norman v. Nash Johnson & Sons' Farms,

Inc., 537 S.E.2d 248, 266 (N.C. Ct. App. 2000)). A claim for

unjust enrichment cannot survive where an express contract governs

a party’s claim. Booe v. Shadrick, 369 S.E.2d 554, 570 (N.C.

1988). As such, while an unjust enrichment claim may be pleaded

in the alternative, such a claim should ordinarily be dismissed

where the existence of a governing contract is undisputed. See

Jacobs Vehicle Sys., Inc. v. Yang, No. 1:12CV00181, 2013 WL

4833058, at *11 (M.D.N.C. Sept. 10, 2013) (citing Pan–Am. Prods.

& Holdings, LLC v. R.T.G. Furniture Corp., 825 F. Supp. 2d 664,

696 (M.D.N.C. 2011)).

As to the commissions, Ceridian and Guhne agree that the

nonpayment is governed by the Commission Plan, a contractual

agreement. (See id. ¶¶ 58–60, 98; Doc. 12 ¶¶ 58–60.) Therefore,

to this extent, judgment on the pleadings will be granted in favor

of Ceridian.

Guhne’s claim arising from the promised 75,000 stock options

rests on a potentially different footing, as it is based, at least

in part, on representations allegedly made to induce the offer

letter agreement with Ceridian. (See Doc. 1 ¶ 113 (discussing

fraudulent inducement claim based on the promise of 75,000 shares

of stock options); see also Section E., supra.) To that extent

and for the reasons already noted, it remains to be seen whether

the claim is barred by the parties’ contractual agreement.

However, as the claim is pleaded in the alternative and the court

need not make this determination at this time, it will defer any

definitive ruling. Fed. R. Civ. P. 12(i) (“If a party so moves,

any defense listed in Rule 12(b)(1)-(7) — whether made in a

pleading or by motion — and a motion under Rule 12(c) must be heard

and decided before trial unless the court orders a deferral until

trial.”); see also Campbell Sales Grp., Inc. v. Marx, No. 1:10CV55,

2011 WL 13134278, at *4 (M.D.N.C. Aug. 30, 2011).

B. Alternative Motion to Dismiss for Forum Non Conveniens

Ceridian moves, in the alternative, for the dismissal of

claims three (violation of the WHA) and eight (unjust enrichment)

on the basis of the mandatory forum selection clause embedded in

the Commission Plan’s terms and conditions (Doc. 12-3). (Doc. 16

at 22-24.) Specifically, Ceridian argues that the commission plan

documents contain a forum selection clause which states that “any

dispute regarding the [Commission] Plan will be exclusively venued

in Minnesota State District Court.” (Doc. 16 at 24; see also Doc.

12-3 at 3.) Ceridian urges that, as Guhne’s claims for violation

of the WHA and, in part, for unjust enrichment involve disputed

commissions, the court should dismiss claims three and eight for

forum non conveniens in accordance with the forum selection

clause.15 Because judgment on the pleadings will be granted in

favor of Ceridian on both of these claims to the extent they

implicate the Commission Plan, the court need not consider this

alternative motion and it will be denied as moot.

C. Motion to Seal

Ceridian has moved to seal the copies of its 2019 global sales

policy (Doc. 12-4) and Guhne’s 2019 sales incentive compensation

plan (Doc. 12-5) that were filed with its answer. (Doc. 13.)

Ceridian has provided redacted versions of both documents for

public viewing. (Docs. 12-4, 12-5.) Although Ceridian has

provided an unredacted version of Guhne’s 2019 sales incentive

compensation plan (Doc. 17-1), it has not provided an unredacted

copy of the 2019 global sales policy. At present, the motion to

seal has been pending since November 20, 2020, and no objection to

the motion has been made. See M.D.N.C. L.R. 5.4(c)(5).

When a party makes a request to seal judicial records, a

15 Ceridian does not contend, nor could it, that Guhne’s unjust enrichment

claim relating to the alleged promise of 75,000 stock options is governed

by the Commission Plan documents and the associated forum selection

clause. (See Doc. 16 at 22-24.)

district court “must comply with certain substantive and

procedural requirements.” Va. Dep't of State Police v. Wash. Post,

386 F.3d 567, 576 (4th Cir. 2004). Procedurally, the court must

(1) give the public notice and a reasonable opportunity to

challenge the request to seal; (2) “consider less drastic

alternatives to sealing”; and (3) if it decides to seal, make

specific findings and state the reasons for its decision to seal

over the alternatives. Id. “As to the substance, the district

court first must determine the source of the right of access with

respect to each document, because only then can it accurately weigh

the competing interests at stake.” Id. (internal quotation marks

and alteration omitted). “While the common law presumption in

favor of access attaches to all ‘judicial records and documents,’

the First Amendment guarantee of access has been extended only to

particular judicial records and documents,” such as materials

filed in connection with a summary judgment motion. Stone v. Univ.

of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988) (internal

citation omitted). The Fourth Circuit has “conclude[d] that the

First Amendment guarantee of access should not be extended to

documents filed in connection with a motion to dismiss” because

“[a] motion to dismiss tests only the facial sufficiency of the

complaint[] [and] a court may not consider any materials outside

the pleadings.” In re Pol’y Mgmt. Sys. Corp., 67 F.3d 296, 1995

WL 541623, at *3 (4th Cir. 1995) (unpublished table decision).16

As a motion for judgment on the pleadings applies a standard

similar to that of a motion to dismiss under 12(b)(6), it is likely

that the First Amendment guarantee of access does not apply to

documents filed in support of such a motion. See U.S. Tobacco

Inc. v. Big S. Wholesale of Va., LLC, No. 5:13-CV-527-F, 2014 WL

1285774, at *2 (E.D.N.C. Mar. 27, 2014) (indicating, on motion for

judgment on the pleadings, that “[t]he parties' briefing suggests

[] only the common law right of access applies . . . and the court

has not located any authority to the contrary”). However, even

under the more stringent First Amendment standard — under which

Ceridian argues — its burden has been met.

“The burden to overcome a First Amendment right of access

rests on the party seeking to restrict access, and that party must

present specific reasons in support of its position.” Wash. Post,

386 F.3d at 575; see Press–Enter. Co. v. Superior Ct., 478 U.S. 1,

15 (1986) (“The First Amendment right of access cannot be overcome

by [a] conclusory assertion.”). The public's right of access “may

be abrogated only in unusual circumstances.” Stone, 855 F.2d at

182. Evaluating whether these “unusual circumstances” exist in a

particular case is conducted in light of the “specific facts and

16 Unpublished opinions of the Fourth Circuit are not precedential but

can be cited for their persuasive, but not controlling, authority. See

Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006).

circumstances” of the case at issue. See Wash. Post, 386 F.3d at

579. In a criminal case involving motions and hearings to which

the public had a First Amendment right of access, the Fourth

Circuit held that the following factors were relevant when

balancing the government's interest in secrecy and the public's

right to access: “whether the records are sought for improper

purposes, such as promoting public scandals or unfairly gaining a

business advantage; whether release would enhance the public's

understanding of an important historical event; and whether the

public has already had access to the information contained in the

records.” In re Knight Publ'g Co., 743 F.2d 231, 235 (4th Cir.

1984) (citing Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597–

608 (1978)); see also Nixon, 435 U.S. at 598 (noting that public

access may be inappropriate for “business information that might

harm a litigant's competitive standing”). Numerous district

courts in this circuit have applied these factors in civil cases.

See, e.g., Adler v. CFA Inst., No. 1:11–CV–1167, 2012 WL 3257822,

at *1 (E.D. Va. Aug. 7, 2012); Mitchell v. Smithfield Packing Co.,

No. 4:08–CV–182–H, 2010 WL 4877054, at *1 (E.D.N.C. Nov. 24, 2010);

Tustin v. Motorists Mut. Ins. Co., 668 F. Supp. 2d 755, 759 (N.D.

W. Va. 2009); Silicon Knights, Inc. v. Epic Games, Inc., No. 5:07–

CV–275–D, 2008 WL 3914463, at *3 (E.D.N.C. Aug. 22, 2008).

The documents sought to be sealed were filed in conjunction

with Ceridian’s answer and motion for judgment on the pleadings.

As discussed above, they are relevant and admissible and were

available for consideration in connection with the present motion.

Because the documents contain confidential internal information

that would provide a significant advantage to Ceridian’s

competitors, the court relied on these documents in its foregoing

analysis, and the motion to seal is unopposed, the court will grant

the motion. See also Guessford v. Pa. Nat’l Mut. Cas. Ins. Co.,

No. 1:12CV260, 2014 WL 12594127, at *5 (M.D.N.C. Sept. 30, 2014)

(“The same protection from disclosure generally applies to

confidential and proprietary business records like the

[compensation plan], which are not typically published to the

public.”).

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that the motion for judgment on the

pleadings and dismissal based on forum non conveniens (Doc. 15) is

granted in part and denied in part as follows:

1. The motion for judgment on pleadings is GRANTED as to

claim three (unpaid wages under the Wage and Hour Act), and this

claim is DISMISSED WITH PREJUDICE;

2. The motion for judgment on the pleadings is DENIED as to

claim four (breach of contract);

3. The motion for judgment on the pleadings as to claims

five (fraudulent inducement), six (negligent misrepresentation),

seven (violations of the UDPTA), and eight (unjust enrichment) is

DENIED to the extent the claims are based upon the alleged promise

of 75,0000 shares of stock options, but is otherwise GRANTED and

those claims are accordingly DISMISSED WITH PREJUDICE to that

extent; and

4. The alternative motion to dismiss claims three and eight

for forum non conveniens is DENIED AS MOOT.

IT IS FURTHER ORDERED that Ceridian’s motion to seal (Doc.

13) is GRANTED.

/s/ Thomas D. Schroeder

United States District Judge

March 26, 2021