     09-1436-cv
     Joseph F. Cooper v. PSI Group, Inc.

 1                              UNITED STATES COURT OF APPEALS
 2                                  FOR THE SECOND CIRCUIT
 3
 4                                         SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
 7   A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
 8   GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
 9   LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
10   THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
11   ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
12   A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
13   COUNSEL.
14
15          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
16   Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 5th day of
17   February , two thousand ten.
18
19   Present:
20              Joseph M. McLaughlin,
21              Pierre N. Leval,
22              Richard C. Wesley,
23                            Circuit Judges,
24
25   ________________________________________________
26
27   Joseph F. Cooper,
28
29              Plaintiff-Appellant,
30
31                       v.                                         No. 09-1436
32
33   PSI Group, Inc., Siemens Dematic Mail SVC Inc.,
34
35              Defendant-Appellees,
36
37   Siemens Dematic Corp.,
38
39              Defendant.
40
41   ________________________________________________

                                                    1
 1   For Plaintiff-Appellant:                          JAMES H. HOWARD , Phelon, Fitzgerald & Wood,
 2                                                     P.C., Manchester, CT
 3
 4   For Defendant-Appellees:                          JOHN G. STRETTON , Edwards Angel Palmer &
 5                                                     Dodge, Stamford, CT, for defendant-appellee PSI
 6                                                     Group, Inc.
 7
 8                                                     THOMAS F. ALLEN , JR., Carrington, Coleman,
 9                                                     Sloman & Blumenthal, L.L.P., Dallas, TX
10                                                     (Margaret P. Mason, LeClair Ryan, New Haven,
11                                                     CT, and Rebecca Visosky, Carrington, Coleman,
12                                                     Sloman & Blumenthal, L.L.P., Dallas, TX, on the
13                                                     brief), for defendant-appellee Siemens Dematic
14                                                     Mail SVC Inc.
15
16   ________________________________________________
17
18          Appeal from the United States District Court for the District of Connecticut (Bryant, J.).
19
20          ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

21   DECREED the judgment of the district court be AFFIRMED in part, VACATED in part, and

22   REMANDED for further proceedings.

23          Plaintiff Joseph Cooper appeals from (1) the district court’s June 5, 2008 order granting in

24   part defendants’ motion to dismiss, and (2) the district court’s March 23, 2009 order granting

25   summary judgment to defendants on the remaining claims. We assume the parties’ familiarity with

26   the underlying facts, the procedural history, and the issues presented for review.

27          We review a district court’s grant of a motion to dismiss de novo, accepting all factual

28   allegations in the complaint as true and drawing all reasonable inferences in the plaintiff’s favor.

29   Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). We also review a district court’s

30   grant of summary judgment de novo. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465 (2d

31   Cir. 2001). “Summary judgment is appropriate only when there are no genuine issues of material


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 1   fact and the movant is entitled to judgment as a matter of law.” Id. When making this

 2   determination, the court must view the evidence in the light most favorable to the non-moving party,

 3   drawing all reasonable inferences in that party’s favor. Id. at 465-66.

 4          The district court granted Siemens’ motion to dismiss Cooper’s claim under the Connecticut

 5   Wage Act, Conn. Gen. Stat. § 31-72, on the ground that a two-year statute of limitations applied.

 6   That statute of limitations, Conn. Gen. Stat. § 52-596, provides that “[n]o action for the payment of

 7   remuneration for employment payable periodically shall be brought but within two years after the

 8   right of action accrues.” Id. (emphasis added). Cooper argues that the district court erred in applying

 9   this statute to his claim, which sought to recover unpaid commissions, because those commissions

10   were not “payable periodically.”

11          We agree. Siemens points to no contractual provision that specifies or requires that Cooper’s

12   commission payments be made on any periodic schedule. The contract appears to be silent as to

13   when Cooper was entitled to receive these commission payments. Accordingly, the district court

14   erred when it concluded that Cooper’s remuneration was “payable periodically” and that his wage

15   act claim against Siemens was therefore barred by the two-year statute of limitations.

16          Cooper’s remaining claims, however, were properly disposed of by the district court. The

17   letter agreement between Cooper and PSI was integrated on the subject of commissions, both

18   because they were “mentioned, covered, or dealt with in the writing,” Associated Catalog

19   Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 740 (1989) (internal quotation marks omitted), and

20   because the letter agreement contained a merger clause, which “is conclusive evidence of the parties’

21   intent to create a fully integrated agreement,” Alstom Power, Inc. v. Balcke-Durr, Inc., 269 Conn.

22   599, 612 (2004). This integration bars Cooper’s attempt to introduce evidence of a conflicting

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 1   conversation he had with a PSI manager prior to being hired, and thus bars his assertion that he

 2   should have been paid commissions “in accordance with the [Siemens] Employment Agreement.”

 3          Cooper’s claims against Siemens and PSI based on a theory of unjust enrichment are also

 4   without merit. “[A]n express contract between the parties precludes recognition of an implied-in-law

 5   contract governing the same subject matter,” Meaney v. Connecticut Hosp. Ass’n, Inc., 250 Conn.

 6   500, 517 (1999) (internal quotation marks omitted), and thus precludes recovery for unjust

 7   enrichment. See Vertex, Inc. v. City of Waterbury, 278 Conn. 557, 574 (2006). Cooper entered into

 8   written employment agreements with both PSI and Siemens, and those agreements addressed the

 9   subject of commissions. Accordingly, Cooper cannot recover on a theory of unjust enrichment.

10          For the foregoing reasons, the judgment of the district court is hereby AFFIRMED in part,

11   VACATED in part, and REMANDED for further proceedings.

12

13                                                     FOR THE COURT:
14                                                     CATHERINE O’HAGAN WOLFE, CLERK
15
16




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