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DerKevorkian v. Lionbridge Technologies

January 26, 2006


The opinion of the court was delivered by: Lewis T. Babcock, Chief Judge


This matter is before me on: 1) Defendant, Lionbridge Technologies, Inc., d/b/a Lionbridge U.S., Inc.'s, Motion for Summary Judgment, filed on March 23, 2005; and 2) Defendants, Sharryn E. Ross and Ross, Martel & Silverman, LLP's, Motion for Summary Judgment, filed on September 12, 2005, seeking judgment in their favor and dismissal of Plaintiff, Isabelle DerKevorkian's, complaint. Oral arguments would not materially assist me in the determination of these motions. After consideration of the motions, as well as all related pleadings, I GRANT IN PART and DENY IN PART Defendant Lionbridge's motion, and GRANT Defendants Sharryn E. Ross and Ross, Martel & Silverman, LLP's motion for the following reasons.


I. Underlying Facts

The following facts, which have not been challenged by Defendant Lionbridge for the purpose of this motion, are taken from Plaintiff's amended complaint. Plaintiff is a citizen of France. In July 1997, she began working as an intern for a company in Boulder, Colorado, and was subsequently hired by that company as a Translator. In 2000, Defendant Lionbridge acquired the company and, as a result, Plaintiff became a Lionbridge employee. In early 2000, Plaintiff was promoted to Project Manager and, in April of 2001, was promoted to the position of Translation Manager.

Plaintiff's work visa was to expire on October 1, 2003. In order to continue living and working in the United States beyond that time, Plaintiff needed to obtain permanent resident status, or a "green card." As a result, Plaintiff requested sponsorship by Lionbridge pursuant to its Permanent Resident Program. Under this program a foreign employee can request Lionbridge's sponsorship of his or her green card application with the United States Immigration and Naturalization Service (the "INS"), now the Bureau of Immigration and Customs Enforcement under the Department of Homeland Security.

Lionbridge approved its sponsorship of Plaintiff's green card application on December 17, 2001. To participate in the program, Plaintiff was required to remain employed at Lionbridge for two years following receipt of her green card and Plaintiff could not move to another position within the organization until the application had been on file with the INS for 180 days. Additionally, Plaintiff agreed to allow Lionbridge's legal counsel handle her application.

In early March of 2002, Lionbridge retained Defendants Sharryn Ross and her law firm to handle Plaintiff's green card application. At that point it became apparent that Plaintiff's work visa had not been properly amended to reflect her April 2001 promotion to Translation Manager. As part of the process of amending Plaintiff's visa, Plaintiff's position of Translation Manager was classified by the State of Colorado Department of Labor Certification as a "Level Two, General and Operations Manager." The Department's applicable prevailing wage of a "Level Two, General and Operations Manager" was $106,288, which significantly exceeded Plaintiff's actual salary of $57,000.

In September 2002, Lionbridge informed Plaintiff of the prevailing wage discrepancy, and the fact that it was unwilling to pay her within 5% of the assessed prevailing wage for the position of Translation Manager. As a result, Lionbridge suggested that Plaintiff accept a demotion, without a decrease in pay, to the position of Translator. Plaintiff refused, as she believed such demotion would adversely affect her career and would limit her duties to translation work. After some negotiations, Plaintiff and Lionbridge were unable to agree on a feasible solution, and Lionbridge ultimately did not file an application with the INS for Plaintiff's green card. Plaintiff's work visa expired on October 1, 2003. At that time she was forced to resign her employment with Lionbridge and has since left the United States.

II. Law

Defendant Lionbridge's motion for summary judgment is predicated on Federal Rule of Civil Procedure 12(b)(6), in that it maintains that all of Plaintiff's claims against it should be dismissed with prejudice because, as a matter of law, Plaintiff fails to state claims upon which relief can be granted in light of the undisputed facts. A claim may be dismissed for failure to state a claim upon which relief can be granted either because it asserts a legal theory not cognizable as a matter of law, or because the claim fails to allege sufficient facts to support a cognizable legal claim. Fed. R. Civ. P. 12(b)(6); Morey v. Miano, 141 F. Supp.2d 1061, 1062 (D.N.M. 2001). See also Van Schaack v. Phipps, 558 P.2d 581, 585 (Colo. App. 1976)(citations omitted)("[a] judgment of dismissal for failure to state a claim upon which relief can be granted may be entered upon a motion for summary judgment").

Where, as here, this is a federal court sitting in diversity, my "task is to ascertain and apply Colorado law to the end that the result obtained in federal court is the result that would have been reached if this litigation had been pursued in a Colorado court." Perlmutter v. U.S. Gypsum Co., 54 F.3d 659, 662 (10th Cir. 1995)(quoting Lutz Farms v. Asgrow Seed Co., 948 F.2d 638, 641 (10th Cir. 1991)). As such, I regard the pronouncements of the Supreme Court of Colorado as authoritative statements of Colorado law and "in the absence of any compelling reason to disregard [them]," I follow decisions of the Colorado Court of Appeals as well. Perlmutter v. U.S. Gypsum, supra, 54 F.3d at 662 (citing Romero v. International Harvester Co., 979 F.2d 1444, 1449 fn. 3 (10th Cir. 1992)).

III. Breach of Contract/Promissory Estoppel

In her amended complaint, Plaintiff asserts claims against Defendant Lionbridge for breach of contract (First Claim For Relief) and promissory estoppel (Second Claim For Relief). She alleges that a contract was created when Lionbridge agreed to sponsor her under its Permanent Resident Program, and that Lionbridge subsequently breached this agreement by failing to adequately "assist and support" Plaintiff in the process of applying for her green card. Alternatively, she asserts that Lionbridge's agreement to provide sponsorship under the Permanent Resident Program constituted a promise to assist and support Plaintiff in the process of applying for her green card. Such promise included "taking all reasonable and appropriate actions to enable Plaintiff to apply for the green card." Specifically, Plaintiff asserts that Lionbridge refused to take reasonable actions to proceed with her application process which included: challenging or paying her the prevailing wage determination assigned to her position; commissioning a private salary survey or a qualified industry salary survey in lieu of that determination; "tweaking" or redefining her job description in order to conform to a lower classification; or demoting Plaintiff to the position of Translator once her green card was issued.

In its motion for summary judgment, Lionbridge argues that Plaintiff has failed to state a legally cognizable claim for breach of contract or promissory estoppel, as a matter of law, because Plaintiff concedes that her employment relationship with Lionbridge was at-will. Because Plaintiff does not allege a violation of termination procedures or any agreement or promise of continued employment, and acknowledges the at-will relationship, Lionbridge asserts that she cannot state a claim for breach of contract or promissory estoppel.

Lionbridge's characterization of Plaintiff's claims is misplaced. Plaintiff is not seeking damages for an alleged wrongful termination of the employment relationship. Rather, she seeks damages for Lionbridge's alleged breach of a separate and distinct agreement -- specifically, Lionbridge's agreement to sponsor Plaintiff's green card application. Although such agreement is clearly within the context of the employment relationship, I disagree with Lionbridge's assertion that her "green card application is inextricably linked to her employment with Lionbridge as her sponsor, and to Lionbridge's right to terminate her employment at any time." Although it is true that "Lionbridge's sponsorship of her for a green card does not alter the at-will relationship," Plaintiff's claims are not based on a termination from her employment. Instead, her claim is that a contract was created by Lionbridge's agreement to fully sponsor Plaintiff under the terms of the Permanent Resident Program; that Lionbridge breached that contract by failing to assist and support Plaintiff in the process of applying for lawful permanent residence status; and that as a proximate result of that breach, Plaintiff has suffered damages. See Wisehart v. Meganck, 66 P.3d 124, 129 (Colo. App. 2002)(comparing a case in which the plaintiff's claim was not related to the at-will termination right). As a result, Plaintiff has adequately asserted in her amended complaint a breach of contract claim cognizable under Colorado law. See generally Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987)(ruling that personnel policies or practices can form the basis of an enforceable contract between employer and employee).

For the same reasons, I likewise conclude that Plaintiff adequately states a promissory estoppel claim for which relief can be granted under Colorado law. Plaintiff claims that Lionbridge's agreement to provide full sponsorship under its Permanent Resident Program constituted a promise to pay the costs associated with the application and to assist and support her in the process of applying for lawful permanent resident status -- which included taking all reasonable and appropriate actions related to her application; that she reasonably believed that Lionbridge would take such actions; that such promise was made with the reasonable expectation that it would induce her to act; that she reasonably relied on Lionbridge's promise to her detriment; and that such reliance has caused her damages. "Promises which are ancillary to an otherwise at-will employment arrangement, such as termination procedures contained in employee manuals, may support a claim for promissory estoppel." Pickell v. Arizona Components Co., 902 P.2d 392, 395 (Colo. App. 1994), rev'd on other grounds, 931 P.2d. 1184 (Colo. 1997).

Non-Economic Damages

Lionbridge next argues that Plaintiff cannot seek or recover non-economic damages for emotional distress related to her breach of contract and promissory estoppel claims. I agree.

As to Plaintiff's breach of contract claim, Colorado courts have recognized that a willful or wanton breach will support an award of damages for emotional distress, if such distress is a "natural and probable consequence of the breach." See Trimble v. City & County of Denver, 697 P.2d 716, 731 (Colo. 1985); see also Giampapa v. American Family Mut. Ins. Co., 64 P.3d 230, 238 (Colo. 2003); Brossia v. Rick Const., L.T.D. Liability Co., 81 P.3d 1126, 1131 (Colo. App. 2003)(non-economic damages, such as emotional distress damages, are available in breach of contract actions only in extraordinary contractual circumstances where such damages are foreseeable at the time of contracting); CJI-Civ. 4th 30:35.

Lionbridge asserts that Plaintiff should be precluded from recovering such damages for emotional distress because she failed to specifically plead these special damages as required by Fed. R. Civ. P. 9(g)("[w]hen items of special damage are claimed, they shall be specifically stated"). See also C.R.C.P. 9(g). The Colorado Supreme Court has adopted the general rule that special damages, which are not the usual and natural consequence of the wrongful act complained of, must be specifically pled and proved. Bueno v. Denver Pub. Co., 32 P.3d 491, 496 (Colo. App. 2000)(overruled on other grounds)(citing Tucker v. Parks, 7 Colo. 62, 1 P. 427 (1884)). Therefore, I agree that non-economic damages on a breach of contract claim constitute special damages under Colorado law.

Plaintiff does not contest that she failed to specifically allege any non-economic damages related to her breach of contract claim. Rather, she argues that her factual allegations in her amended complaint are "more than sufficient to satisfy the test for wilful and wanton breach" in order to support an award for non-economic damages. Plaintiff generally alleges in her amended complaint that as a proximate cause of Lionbridge's breach she has "suffered damages in an amount to be determined at trial." Only in her conclusory prayer for damages does Plaintiff seek unspecified "compensatory economic and non-economic damages." Plaintiff's factual allegations, although quite lengthy, fail to specifically allege that Lionbridge's breach rose to the level of wilful and wanton behavior or that she has suffered any particular emotional distress related damages relative to that breach. As such, I conclude that she has failed to specifically plead any non-economic damages related to her breach of contract claim as required by Fed. R. Civ. P. 9(g) and C.R.C.P. 9(g).

I note that the "trial court holds wide discretion to permit amendment of pleadings to include special damages, especially when opposing party is made aware of items prior to trial." Karakehian v. Boyer, 900 P.2d 127, 1281 (Colo.App. 1994)(reversed, in part, on different grounds, 915 P.2d 1295 (Colo. 1996)). "The underlying purpose behind the rule requiring specific pleading of special damages is to put the defendants on notice as to any unusual damages being sought by virtue of their alleged wrongdoing which could not otherwise reasonably be inferred as resulting from the wrongful act." Cox v. Johnston, 484 P.2d 116, 120-21 (Colo. App. 1971)(citing Hunter v. Quaintance, 69 Colo. 28, 168 P. 918 (1917)).

Here, although Lionbridge was on notice that Plaintiff was seeking non-economic damages as a general matter, it was not on pleading notice that she was asserting such damages relative to an unpled claim of wilful and wanton breach. Furthermore, I note that Plaintiff was previously allowed to amend her complaint, after extensive discovery, and that the deadline to amend has passed. Under theses circumstances, I deny Plaintiff's request to amend her complaint to add a specific allegation of wilful and wanton breach of contract by Lionbridge. As to Plaintiff's claim for relief based on a theory of promissory estoppel, Plaintiff has not cited and my research has not revealed any Colorado case that allows for the recovery of non-economic damages for a promissory estoppel claim. In contrast, Lionbridge refers me to Zick v. Krob, 872 P.2d 1290, 1295 (Colo. App. 1993), in which the court noted that "[d]amages awarded in a sufficient amount to compensate for the actual loss sustained is a proper remedy" for a successful promissory estoppel claim. Therefore, although I have ...

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