United States District Court, D. Colorado
WILLIAM POWERS, MAP MANAGEMENT LLC, and BLACK WIDOW LLC, Plaintiffs,
EMCON ASSOCIATES, INC., MICHAEL COCUZZA, and MICHAEL MICHOWSKI, Defendants.
KATHLEEN M. TAFOYA UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Defendants' “Motion
for Summary Judgment.” (Doc. No. 86
[“Mot.”].) Plaintiffs filed a Response (Doc. No.
93 [“Resp.”]), to which Defendants replied. (Doc.
Emcon Associates, Inc. (“Emcon”) is a New Jersey
corporation. (Doc. No. 24 at 2; Doc. No. 58 at 2.) Defendant
Michael Cocuzza is a co-founder and CEO of Emcon. (Doc. No.
24 at 3; Doc. No. 58 at 3.) Defendant Michael Michowski is a
co-founder and Chief Administrative Officer of Emcon. (Doc.
No. 24 at 3; Doc. No. 58 at 3.)
Defendant FMNow LLC (“FMNow”) was a Colorado
limited liability company formed on June 13, 2012. (Doc. No.
93-1.) FMNow's initial Operating Agreement indicates that
Defendants Cocuzza and Michowski each contributed $12, 500.00
of capital and each held 16.667% (one-sixth) ownership
interest. (Doc. No. 86-3; Doc. No. 93-1 at 40.) Emcon paid for
the capital contributions of both individuals. (Doc. No. 93-3
at 95-97.) Three years later, Defendants Michowski
and Cocuzza each issued separate Notes Receivable to Emcon
that they contend include their capital contributions. (Doc.
No. 91-3.) Both Notes Receivable are dated January 1, 2015,
after this litigation began. (Id.)
and Plaintiff Powers executed an Employment Agreement
(“EA”) on October 15, 2012. (Doc. No. 86-2.)
Plaintiff Powers also completed a 1099 Form for 2013. (Doc.
No. 86-6.) Throughout the EA, Plaintiff Powers is referred to
as an “employee” and is designated as
“Director and Business Analyst, Industrial Sector, a
management position.” (Id. at 1.) The EA
contains the following provisions:
[Employees'] responsibilities may change from time to
time, and Employer may assign such other duties as it deems
appropriate in its sole discretion.
Employee agrees to abide by all Company policies as the same
may be prescribed from time to time by Company and furnished
in writing to the Employee.
Employee shall be entitled to participate in the then
applicable 401k program immediately upon establishment of
such program by the employer.
Employee is eligible to participate in Employee Stock Option
Program  to be established in calendar 2013.
In the event the Employee shall resign from the Company or no
longer be employed by the Company for any reason other than
termination by the Company without cause, prior to the end of
a two year period commencing with the signing of the
agreement, then all Options which may have vested in Employee
on or before that time shall lapse and be of no further force
In the event the Company is purchased, merges or sells
substantially all of its assets in exchange of consideration
valued at twenty-five million dollars ($25, 000, 000.00) or
more[, ] then the vesting schedule for Employees' initial
(percent) Options Interest is waived and the entire remaining
(percentage) shall vest immediately.
Both parties acknowledge that Employee is an at-will employee
and has no vested rights to employment.
Following the termination of this Agreement without cause,
Company will continue to pay Employee for the duration of 12
months full earned compensation on all accounts sold at the
date of termination.
THIS AGREEMENT DESCRIBES THE BASIC LEGAL AND ETHICAL
RESPONSIBILITIES THAT EMPLOYEE IS EXPECTED TO OBSERVE AS AN
EXECUTIVE OR MANAGERIAL EMPLOYEE.
(Id. at 1, 2, 5, 6, 9.) (emphasis in original.)
Additionally, the EA also includes a non-compete agreement
prohibiting Plaintiff Powers from working for a competing
business located within the United States for a period of two
years following the termination of his employment.
(Id. at 4-5.)
filed a Statement of Dissolution with the Colorado Secretary
of State on September 2, 2015. (Doc. No. 86-1) Initially,
Plaintiffs also named as Defendants in this action FMNow, Jon
Mattei, President of FMNow, and Patricia Moscarelli, former
President of FMNow. (Doc. No. 24.) Prior to the dissolution
of FMNow, Plaintiffs reached a settlement with Defendants
FMNow and Mattei. (Doc. Nos. 40, 42; Doc. No. 86-12 at
The settlement agreement included the following reservation
of rights: “Nothing in this Agreement and Release shall
apply to any of the other defendants in this Lawsuit. Powers
contends that FMNow is an alter ego of Emcon in the Lawsuit
(and FMNow/Mattei disagree). Nothing in this Agreement and
release shall be construed as an admission that takes a
position against Powers's Interest or contentions in the
Lawsuit.” (Doc. No. 95 at 3.)