Case 1:14-cv-02068-LMM Document 10 Filed 08/21/14 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DHR INTERNATIONAL, INC.,
Plaintiff,
v.
BRIAN MCGOWAN,
Defendant.

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CIVIL ACTION
FILE NO. 1:14-cv-02068-WSD

PLAINTIFFS INITIAL DISCLOSURES

(1)

State precisely the classification of the cause of action being filed,

a brief factual outline of the case including plaintiff's contentions as to what

defendant did or failed to do, and a succinct statement of the legal issues in the
case.
This is a breach of contract action. From July 2, 2012 to May 23, 2014,
defendant Brian

McGowan (McGowan) was an employee of DHR

International, Inc. (DHR). McGowans Employment Agreement with DHR set

forth that McGowan would be paid a bonus of $100,000, but that if he resigned
within two years of his start date, the bonus would be recoverable by DHR. As
McGowan resigned before the second anniversary of his start date, $100,000 is
now due and owing to DHR. Furthermore, the Employment Agreement set forth

Case 1:14-cv-02068-LMM Document 10 Filed 08/21/14 Page 2 of 12

that DHR would issue to McGowan a one-time recoverable advance of $100,000

on the condition that if he did not collect $600,000 in fees by December 31, 2012
this advance will be recoverable.

McGowan did not collect $600,000 before

December 31, 2012 and consequently this advance is now due and owing to
DHR.

Finally, McGowan owes DHR $105,328.34, which reflects the total of

recoverable net monthly draw payments paid to McGowan in excess of his fees
received.
(2)

Describe in detail all statutes, codes, regulations, legal principles,

standards and customs or usages, and illustrative case law which plaintiff
contends are applicable to this action.
For its First Cause of Action Breach of Contract DHR is relying upon
the parties agreement that the Employment Agreement is to be interpreted
under and governed by the laws of the State of Illinois. Under Illinois law, the
elements of a breach of contract claim are: (1) the existence of a valid and
enforceable contract; (2) performance by the plaintiff; (3) breach of contract by
the defendant; and (4) resultant injury to the plaintiff. See, e.g., Timan v. Ourada,
972 N.E.2d 744, 751 (2nd Dist. 2012).

An agreement which is not reasonably

susceptible to more than one reasonable interpretation is considered to be

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unambiguous; a contract is not ambiguous because the parties disagree about its
meaning. Gold v. Ziff Communications Co., 265 Ill. App. 3d 953, 963 (1st Dist. 1994).
A conditional bonus is neither an earned bonus nor an earned wage.
McGlaughlin v. Sternberg Lanterns, Inc., 395 Ill. App. 3d 544 (2nd Dist. 2009).
In the alternative, for its Second Cause of Action Unjust Enrichment
DHR is operating under Georgia law, which sets forth that the theory of unjust
enrichment applies when as a matter of fact there is no legal contract, but where
the party sought to be charged has been conferred a benefit by the party
contending an unjust enrichment which the benefited party equitably ought to
return or compensate for. See, e.g., Smith v. McClung, 215 Ga. App. 786, 789 (Ct.
App. 1994).
For its Third Cause of Action Bad Faith DHR is relying upon O.C.G.A.
13-6-11. O.C.G.A. 13-6-11 sets forth that while [t]he expenses of litigation
generally shall not be allowed as a part of the damageswhere the plaintiff has
specially pleaded and has made prayer therefor and where the defendant has
acted in bad faith, has been stubbornly litigious, or has caused the plaintiff
unnecessary trouble and expense, the jury may allow them.
(3)

Provide the name and, if known, the address and telephone

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Case 1:14-cv-02068-LMM Document 10 Filed 08/21/14 Page 4 of 12

number of each individual likely to have discoverable information that you

may use to support your claims or defenses, unless solely for impeachment,
identifying the subjects of the information.

(Attach witness list to Initial

Disclosures as Attachment A.)

See Attachment A.
(4)

Provide the name of any person who may be used at trial to

present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.
For all experts described in Fed.R.Civ.P. 26(a)(2)(B), provide a separate written
report satisfying the provisions of that rule. (Attach expert witness list and
written reports to Initial Disclosures as Attachment B.)
None at this time, though Plaintiff reserves the right to supplement this
disclosure as necessary.
(5)

Provide a copy of, or a description by category and location of, all

documents, data compilations, and tangible things in your possession,

custody, or control that you may use to support your claims or defenses unless
solely for impeachment, identifying the subjects of the information. (Attach
document list and descriptions to Initial Disclosures as Attachment C.)
See Attachment C.
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Case 1:14-cv-02068-LMM Document 10 Filed 08/21/14 Page 5 of 12

(6)

In the space provided below, provide a computation of any

category of damages claimed by you.

In addition, include a copy of, or

describe by category and location of, the documents or other evidentiary

material, not privileged or protected from disclosure, on which such
computation is based, including materials bearing on the nature and extent of
injuries suffered, making such documents or evidentiary material available for
inspection and copying as under Fed.R.Civ.P. 34.

(Attach any copies and

descriptions to Initial Disclosures as Attachment D.)

DHR has been damaged in the amount of $100,000 paid to McGowan
pursuant to the terms and conditions of the Employment Agreement, which set
forth that said amount would be recoverable if McGowan left DHR within two
years of his start date of July 2, 2012; McGowan left DHR on May 23, 2014 but
has refused to return said amount.
DHR has been damaged in an additional amount of $100,000, reflecting
advances paid to McGowan pursuant to the terms and conditions of the
Employment Agreement, which set forth that DHR would recover this amount if
McGowan failed to collect $600,000 in fees by December 31, 2012. McGowan
failed to collect $600,000 in fees but has refused to return said advances.
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DHR has been damaged in the additional amount of $105,328.84, which is

the aggregate amount of draws McGowan received from DHR in excess of
commissions earned.
Pursuant to the terms of the Employment Agreement, in the event of a
dispute arising under the Employment Agreement the prevailing party shall be
entitled to its attorneys fees and expenses.
See Attachment D.
(7)

Attach for inspection and copying as under Fed.R.Civ.P. 34 any

insurance agreement under which any person carrying on an insurance

business may be liable to satisfy part or all of a judgment which may be
entered in this action or to indemnify or reimburse for payments made to
satisfy the judgment.

(Attach copy of insurance agreement to Initial

Disclosures as Attachment E.)

Not applicable.
(8)

Disclose the full name, address, and telephone number of all

persons or legal entities who have a subrogation interest in the cause of action
set forth in plaintiffs cause of action and state the basis and extent of such
interest.
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Case 1:14-cv-02068-LMM Document 10 Filed 08/21/14 Page 7 of 12

Not applicable.
MAGILL ATKINSON DERMER LLP
/S/ Ariel E. Shapiro
________________________________
David M. Atkinson
datkinson@madllp.com
Georgia Bar No. 024460
Ariel E. Shapiro
ashapiro@madllp.com
Georgia Bar No. 81067
Promenade, Suite 1750
1230 Peachtree St., NE
Atlanta, Georgia 30309-3591
(404) 892-8884
RUBERRY, STALMACK & GARVEY, LLC
/s/ James J. Berdelle
James J. Berdelle
james.berdelle@rsg-law.com
500 W. Madison Street
Suite 2300
Chicago, Illinois 60661
Telephone: (312) 466-8050
Attorneys for Plaintiff

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Case 1:14-cv-02068-LMM Document 10 Filed 08/21/14 Page 8 of 12

ATTACHMENT A TO PLAINTIFFS INITIAL DISCLOSURES

1.

Brian McGowan, c/o Defendants counsel, may have discoverable

information regarding his acceptance of the Offer Letter, the parties agreement
to be bound by the terms and conditions of the Employment Agreement, DHRs
performance pursuant to the terms and conditions of the Employment
Agreement, and Defendants subsequent breach of the terms and conditions of
the Employment Agreement.
2.

Geoff Hoffmann, c/o Plaintiffs counsel, may have discoverable

information regarding Defendants acceptance of the Offer Letter, the parties

agreement to be bound by the terms and conditions of the Employment
Agreement, DHRs performance pursuant to the terms and conditions of the
Employment Agreement, and Defendants subsequent breach of the terms and
conditions of the Employment Agreement.
3.

April Drury, c/o Plaintiffs counsel, may have discoverable

information regarding Defendants acceptance of the Offer Letter, the parties

agreement to be bound by the terms and conditions of the Employment
Agreement, DHRs performance pursuant to the terms and conditions of the

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Employment Agreement, and Defendants subsequent breach of the terms and

conditions of the Employment Agreement.
4.

Kevin Morrison, c/o Plaintiffs counsel, may have discoverable

information regarding Defendants acceptance of the Offer Letter, the parties

agreement to be bound by the terms and conditions of the Employment
Agreement, DHRs performance pursuant to the terms and conditions of the
Employment Agreement, and Defendants subsequent breach of the terms and
conditions of the Employment Agreement.
5.

Doug Black, c/o Plaintiffs counsel, c/o Plaintiffs counsel, may have

discoverable information regarding Defendants acceptance of the Offer Letter,

the parties agreement to be bound by the terms and conditions of the
Employment Agreement, DHRs performance pursuant to the terms and
conditions of the Employment Agreement, and Defendants subsequent breach
of the terms and conditions of the Employment Agreement.
Investigation continues.

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ATTACHMENT C TO PLAINTIFFS INITIAL DISCLOSURES

Monthly Consultant Commission Calculations from August 2012 through
May 2013, Bates stamped DHR000001-DHR000022.
Copies

of

Employment

Agreement,

Bates

stamped

DHR000023-

DHR000028, DHR000033-DHR000037.
Copies of Offer Letter, Bates stamped DHR000029-DHR000032.
Correspondence

with

attachments,

Bates

stamped

DHR000093.
Summary reports of owed amounts, DHR000093-DHR000097.
Investigation continues.

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DHR000038-

Case 1:14-cv-02068-LMM Document 10 Filed 08/21/14 Page 11 of 12

ATTACHMENT D TO PLAINTIFFS INITIAL DISCLOSURES

Monthly Consultant Commission Calculations from August 2012 through
May 2013, Bates stamped DHR000001-DHR000022.
Copies

of

Employment

Agreement,

Bates

stamped

DHR000023-

DHR000028, DHR000033- DHR000037.

Copies of Offer Letter, Bates stamped DHR000029-DHR000032.
Correspondence

with

attachments,

Bates

stamped

DHR000093.
Summary reports of owed amounts, DHR000093 DHR000097.
Investigation continues.

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DHR000038-

Case 1:14-cv-02068-LMM Document 10 Filed 08/21/14 Page 12 of 12

CERTIFICATE OF SERVICE
Undersigned counsel hereby certifies that the foregoing Initial Disclosures
was filed electronically with the Clerk of Court using the CM/ECF system,
which will automatically send e-mail notification of such filing to the following
attorneys of record:
Warren R. Hall, Jr.
whall@hagllp.com
Elizabeth M. Newton
enewton@hagllp.com
Hall, Arbery, Gilligan, Robert & Shanlever, LLP
Attorneys for Defendant
/S/ Ariel E. Shapiro
____________________________
Ariel E. Shapiro