United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. Wang United States Magistrate Judge.
matter comes before the court for recommendation on Defendant
Nutrien, Ltd.’s Motion to Dismiss Under Fed.R.Civ.P.
12(b)(6) (“Motion to Dismiss” or
“Motion”), filed July 13, 2018. [#15]. The
undersigned considers the Motion pursuant to 28 U.S.C. §
636(b), Rule 72 of the Federal Rules of Civil Procedure, and
the memorandum dated July 16, 2018 [#17]. This court
concludes that oral argument will not materially assist in
the resolution of this matter. Accordingly, having reviewed
the Motion and associated briefing, the applicable case law,
and otherwise being fully advised, I respectfully
RECOMMEND that the Motion to Dismiss be
GRANTED IN PART and DENIED IN PART.
court draws the following facts from the Complaint and
presumes they are true for purposes of the instant Motion.
Plaintiff Thomas Warner (“Plaintiff” or
“Mr. Warner”), a citizen of Texas, alleges that
in 2017 he was the Vice President of International Retail
Operations for Agrium, Inc.-a company that later merged with
PotashCorp to form Nutrien, Ltd. [Id. at
¶¶ 4-5]. Defendant Nutrien, Ltd.
“Nutrien”) is a Canadian corporation with its
principal place of business located in Saskatoon,
Saskatchewan and its United States headquarters in Loveland,
Colorado. See [id. at ¶ 6].
in late 2017, Mr. Warner “expressed his discontent with
the current direction” of Nutrien and sought “a
long-term role at [Nutrien] that would be meaningful and
satisfactory to him.” [Id. at ¶ 13]. In
or about January 2018, Plaintiff learned that Nutrien was
investigating certain allegations lodged against Plaintiff
back in September 2017. See [id. at
¶¶ 14-15]. These included a false allegation that
Plaintiff was having an affair with his assistant and that
Plaintiff “used an unauthorized travel agent to book
company travel to South America”-an allegation
previously raised to and addressed by Mr. Warner.
See [id.]. Despite assurances that the
investigation was “nothing to worry about and would be
resolved soon, ” Plaintiff met with Nutrien’s
outside counsel who largely focused the meeting on various
expense reports prepared by Plaintiff and the “business
purpose” for each. [Id. at ¶¶
17-18]. Nutrien terminated Plaintiff “for cause”
based on Plaintiff’s business expenses and unauthorized
use of a travel agent on March 2, 2018. See
[id. at ¶ 19].
his employment Mr. Warner participated in Agrium,
Inc.’s Performance Recognition Plan (“PRP”)
and Performance Share Unit (“PSU”) and Restricted
Share Unit (“RSU”) Plan (“PSU/RSU
Plan”). See [#2 at ¶ 10]. Mr. Warner
alleges that the PRP “was essentially an annual
bonus”, while the PSU/RSU Plan was a “type of
bonus that effectively award[ed] stocks to
participants.” [Id. at ¶¶ 11-12].
Plaintiff alleges that at the time of his termination Nutrien
informed him “that he would receive his vested PSUs and
RSUs, ” totaling roughly $500, 000, but that he would
not receive any severance, 2017 PRP bonus, unvested
PSUs/RSUs, or vested SARs. See [id. at
¶¶ 20-22]. Nutrien did, however, offer Mr. Warner
$1 million (a total exceeding his SARs and 2017 PRP bonus) in
exchange for Mr. Warner signing a non-compete agreement.
See [id. at ¶ 20]. In response to Mr.
Warner’s questioning of the scope of the non-compete
agreement, Nutrien informed Plaintiff that it would withhold
Plaintiff’s vested PSUs and RSUs, though it increased
its offer to $1.5 million (a total exceeding the withheld
SARs, 2017 PRP bonus, and PSUs and RSUs) if Plaintiff would
sign the non-compete agreement. See [id. at
he is entitled to his 2017 PRP bonus and vested PSUs and RSUs
despite the “for cause” termination (and perhaps
additional monies if his termination was without
cause) and believing that Nutrien’s withholding of the
same violates the terms of the PRP and PSU/RSU Plan,
Plaintiff filed suit against Nutrien in the Larimer County
District Court. See generally [#1; #2]. Mr. Warner
asserts claims for breach of contract (or “Claim
1”) and civil theft (or “Claim 2”). See
generally [#2]. Defendant removed this matter to this
District, invoking this court’s diversity jurisdiction
pursuant to 28 U.S.C. § 1332. See [#1]; see
also [#24 (denying Plaintiff’s Motion for
now moves to dismiss Mr. Warner’s claims. [#15].
Plaintiff has since responded, following a stay of the
response deadline pending Judge Arguello’s ruling on
Plaintiff’s Motion for Remand, and Defendant has
replied. Because the Motion is ripe for Recommendation, I
consider the Parties’ arguments below.
Rule 12(b)(6) a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion
under Rule 12(b)(6), the court must “accept as true all
well-pleaded factual allegations . . . and view these
allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124 (10th Cir. 2010) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). A
plaintiff may not rely on mere labels or conclusions,
“and a formulistic formulaic recitation of the elements
of a cause of action will not do.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather,
“a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009); see also Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)
(explaining that plausibility refers “to the scope of
the allegations in a complaint, ” and that the
allegations must be sufficient to nudge a plaintiff’s
claim(s) “across the line from conceivable to
plausible.”). The court may also consider materials
beyond the complaint if the documents are central to the
plaintiff’s claims, referred to in the complaint, and
if the parties do not dispute their authenticity. See
Cty. of Santa Fe, N.M. v. Public Serv. Co. of N.M., 311
F.3d 1031, 1035 (10th Cir. 2002). The court must ultimately
“determine whether the complaint sufficiently alleges
facts supporting all the elements necessary to establish an
entitlement to relief under the legal theory proposed.”
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160
(10th Cir. 2007).
Conflicts of Law
addressing the Parties’ substantive arguments this
court must first ascertain the law that governs
Plaintiff’s claims. Ordinarily, “[i]n a diversity
action, [this court] appl[ies] the substantive law of the
forum state, including its choice of law rules.”
Pepsi-Cola Bottling Co. of Pittsburg v. PepsiCo,
Inc., 431 F.3d 1241, 1255 (10th Cir. 2005). Colorado is
the forum state in this action. “In contract and tort,
‘Colorado follows the ‘most significant
relationship’ approach of the Restatement (Second) of
Conflict of Laws.’” Gorsuch, Ltd., B.C. v.
Wells Fargo Nat. Bank Ass’n, 771 F.3d 1230, 1236
n.7 (10th Cir. 2014) (quoting ITT Specialty Risk Servs.
v. Avis Rent A Car Sys., Inc., 985 P.2d 43, 47
courts typically apply the law chosen by the Parties in the
choice-of-law provisions to govern their contractual rights.
See, e.g., Kipling v. State Farm Mut. Auto. Ins.
Co., 159 F.Supp. 3d 1254, 1265 (D. Colo. 2016);
Wright v. Martek Power, Inc., 314 F.Supp.2d 1065,
1067-68 (D. Colo. 2004). The PRP’s and the PSU/RSU
Plan’s (collectively, “the Plans”)
choice-of-law provisions state, in pertinent part,
“This Plan shall be governed and interpreted in
accordance with the laws of the Province of Alberta and the
laws of Canada applicable therein.” [#2 at 13, 30].
Both Parties appear to agree that Canadian law governs Mr.
Warner’s breach of contract claim, and this court finds
no reason to deviate from the Parties’ expressed intent
in the choice-of-law provisions. See King v. PA
Consulting Grp., Inc., 485 F.3d 577, 585 (10th Cir.
2007) (discussing exceptions contained in § 187(2) of
the Restatement (Second) of Conflict of Laws to applying the
contract’s choice-of-law provisions).
Parties do, however, dispute whether the choice-of-law
provisions govern Mr. Warner’s civil theft claim.
Defendant contends that the civil theft claim arises from the
same facts as the breach of contract claim and, accordingly,
Canadian law is governs Claim 2. [#15 at 6-7]. Nutrien
further argues that assuming the choice-of-law provisions do
not apply, Plaintiff also fails to demonstrate that Colorado
has the most significant relationship to the occurrence and
parties to permit a claim of civil theft under Colorado law.
See [#15 at 6-7; #22 at 7-8]. Plaintiff counters
that the choice-of-law provisions do not contemplate a claim
for civil theft, and that Colorado law applies because the
theft and injury occurred in Colorado. See [#27 at
12-13]. To resolve this preliminary issue, this court must
determine whether the choice-of-law provisions are broad
enough to subsume the tort claim of civil theft.
The Plans provide,
“The Plan shall be governed and interpreted in
accordance with the laws of the Province of Alberta and the
laws of Canada applicable therein. . . . Any actions,
proceedings or claims in any way pertaining to the Plan shall
be commenced in the courts of the State of Colorado in the
case of a Designated employee who was last employed in the
United States by the Corporation or an Affiliate.”
[#2 at 13, 30]. By the plain terms of the Plans, Canadian law
governs the interpretation of the agreement and its
choice-of-law provisions. [Id.]. Under Canadian law,
“[t]he overriding concern is to determine ‘the
intent of the parties and the scope of their
understanding’”; thus, “a decision-maker
must read the contract as a whole, giving the words used
their ordinary and grammatical meaning, consistent with the
surrounding circumstances known to the parties at the time of
formation of the contract.” Creston MolyCorp. v. Sattva Capital Corp.,  2 S.C.R. 633
(S.C.C.) at ¶ 47; see also Thuenken v. Schweer,
 83 N.B.R. 2d 244 (N.B. C.A.) at ¶ 6 (“The
contents of any express term or terms are basic to a true
understanding of the nature, scope and extent of the
contractual rights and duties of the parties”).
“The primary interpretive principle is that when the
language of the policy is unambiguous, the court should give
effect to clear language, reading ...