              Case: 12-10502      Date Filed: 07/23/2012   Page: 1 of 4

                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________

                                    No. 12-10502
                                Non-Argument Calendar
                              ________________________

                     D.C. Docket No. 2:10-cv-00469-UA-DNF


LEONARD ACCARDI,
                                                           Plaintiff-Appellant,
                                        versus

EMS TECHNOLOGIES, INC.,
a Georgia corporation, et al.,
                                                           Defendants,

EMS AVIATION, INC.,
f/d/b/a Formation, Inc., a
New Jersey corporation,
                                                           Defendant-Appellee.

                             __________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                   (July 23, 2012)

Before CARNES, WILSON, and HILL, Circuit Judges:
              Case: 12-10502    Date Filed: 07/23/2012   Page: 2 of 4

PER CURIAM:



      This is an appeal from the grant of defendant/appellee’s, EMS Aviation,

Inc., f/d/b/a Formation, Inc. (Formation), motion for summary judgment, and the

denial of plaintiff/appellant’s, Leonard Accardi (Accardi), motion for summary

judgment. This diversity appeal involves an alleged breach of contract, i.e., a

consulting agreement (Consulting Agreement), between Accardi and his former

employer, Formation.

      In 2006, Accardi signed the Consulting Agreement with Formation. It

stated that Accardi would work 20-30 hours per month, in exchange for $2,000 per

month, plus a 2% commission on sales for which he provided “sales coverage.”

The Consulting Agreement contained a termination clause: “There is no term for

this consultancy agreement and either party can, acting in good faith, terminate

with a 30-day written notice. Commissions earned on sales completed prior to

termination will continue for a period of six months.”

      Both parties agree that Accardi acquired two new and substantial clients for

Formation, Aircell and Row 44, during his consultancy. Accardi concedes that he

received all commissions for sales to Aircell and Row 44, during his tenure.




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                 Case: 12-10502        Date Filed: 07/23/2012       Page: 3 of 4

      In 2008, Formation determined that Aircell and Row 44, as valued clients,

needed full-time, not part-time attention. The company hired Kin Seto, as Vice

President of Business Development and Marketing in November 2008, to take

responsibility for the Aircell and Row 44 accounts. Formation decided to

terminate Accardi.

      In accordance with the terms of the Consulting Agreement, on November

24, 2008, Formation gave written notice to Accardi, terminating his consultancy,

effective December 24, 2008. It acknowledged that sales made by Accardi and

completed prior to December 24, 2008, would continue for a period of six months.

      At the time, Accardi did not challenge the termination. He continued to

receive his residual commission payments as contemplated by the Consulting

Agreement.

      In July 2010, Accardi filed suit against Formation, alleging that Formation

breached the Consulting Agreement by refusing to pay future commissions and by

terminating in bad faith.1 The district court concluded that Accardi had failed to

establish any of his claims, and there were no genuine issues of material fact,

precluding summary judgment in favor of Formation. We agree.




      1
          Accardi also claimed a breach of the implied duty of good faith and fair dealing.

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              Case: 12-10502    Date Filed: 07/23/2012   Page: 4 of 4

      We have reviewed the record in this appeal, the briefs and the arguments of

counsel. Finding no error, we affirm the judgment of the district court.

      AFFIRMED.




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