good morning and may please the court my name is brian broke and i am here representing myself today as well as my co plaintiff matthew p d and i'm going to assume it's purely coincidental of the st case today with all about what a bad idea it is for someone to represent himself required that complains allegations be accepted as true and that all reasonable inferences be drawn in our favor nd new york's long quantum arrowroot which precisely applies to this situation where both mr p and i had  it's yes the term we used was bonus but it really because of the unusual situation of me joining this firm i wasn't just joining it as an ordinary associate looking for a job or being contacted by a firm that needed us and yes your hon i had a case i had a client client who you know came with me from a large large law firm there and then when the relationship with simon soured left with me as well and continued to be my client until we finally resolved all of his matters a few months ago problem is that the in terms of the ultimate share of the cutey matter revenue what was agreed was that it should be fair and i considered certainly that this could be a contract claim but fair is such a vague term and i believe there is case law out there that that that is not enforceable term because how can you show what the parties reasonably meant that to be and what was the total that you were paid the total that i was paid was slightly over three hundred thousand dollars and that was over what period of time or for what period of time that covered work over a period of time from mid july of two thousand and eleven through trying to do the exact math here because it left i'd say about april two thousand and twelve but it didn't cover what's important is there that there was a huge amount of money that was paid by the client after that period of time where no portion of that was shared with me and bills that were issued for time after february th two thousand and eleven so right after i had a four hundred hour month simon unilaterally said i want to change these terms misspoke in terms of saying change the terms of change that term the base salary term the problem was and this is what i said in responses term if it's a term it's a term it is a term but it's not the complete term because the complaint yes there's no doubt there's a term of an agreement whether that agreement is valid enforceable though is the question here and i think that's where the district court got tripped up is the fact that there was a preliminary agreement that i was going to show up to work but we were going to leave it for another day to decide what percentage exactly i get of the revenue because there were so many questions up in the air the bills weren't being paid by mr cutie they were being paid by his former employer who he happened to be suing in arbitration and who had been the one responsible for causing him to be discretionary that it was going to be fixed at a later time it was never done but in your initial complaint the district court focused on paragraph thirty five which i think judge jacobs privacy where you use you say that simon would calculate the amount that he thought was fair and distributed to brooke with his next paycheck and if brooke then believe the i was unfair he shouldn't just fixing it with simon so that type of language is is discretionary type language that's not non discretionary language you would use if you not the st place that the term fix appears and also appears in paragraph twenty six dollars of a thirteen where when discussing salary before that day simon agreed that brooke would receive origination credit for bringing in the executive matter then non discretionary the st time why did you say it was a non discretionary bonus it was going to be fixed we didn't fix it at that time because we didn't know how much they were going to pay out when you said i didn't use my lawyer to file this i was not pro se below didn't use the word non discretionary here i think because it was understood that that was clear from implication not only in paragraph twenty six where it refers to not deciding the percentage at that time he didn't say i'll decide it later he said let's decide this later and so and in addition paragraph thirty two where it refers to here are the terms that he offered on the date that i accepted it one of which was a base salary which he described as artificially low and elsewhere in the complaint that st the fact that that's because it was seen as essentially a draw against what would be an amount proportional to my own billings but in addition it says not only would i get the base salary but that there would be periodic bonuses based on revenue generated from the executive matter and proportionate to brooke's own billings plus an unspecified percentage of origination credit for other attorneys billings then in addition simon said that he would pay discretionary bonuses for brooks work on other firm matters just as he did for everyone else in the firm so the implication was met there and it's understood if this was certainly a statute or apply statutory construction or this was a contract the absentee omission of the term discretionary from the line before it would have significance because when a bonus discretionary the complaint says it's discretionary so it only said that applied as to work on other matters and it's important to keep in mind that the options here were to go either to essentially start my own firm collect my full hourly  rate or otherwise go you know and join simon and simon was assuring me that i was a more financially beneficial plan to join with him so i would like to briefly address my partner matt's pete's claims because i think his claims make it absolutely clear the district court's fundamental errors in a very simple way i'm not sure you're able to appear to have someone then yes well i am a licensed imagine a universe in which it is not a sufficient allegation of the reasonable value of someone's services when the complaint alleges that the person worked a certain number of hours that there was a specific hourly rate that was billed to and paid by a  party that fits squarely within the realm of what is considered to be the preferred way to calculate quantum error damages in the district court just actually and it's in the original pinioned disregarded all those allegations and said there was nothing in there and  that shows both of the district court was not applying the rule twelve b sixteen or faithfully to the complaint was picking and choosing bits and pieces and not the whole and it was not applying the law of quantum merit correctly at that time  may please the court good morning your honor some kenneth murphy from mr simon simon and partners your router's this case in preparing for it yesterday and looking over the briefs refreshing my recollection reminded me of the old adage if it walks like a quacks like a duck you can't call it a chicken the complaint itself lays out make oral agreement to be an at will employee with discretionary bonuses at the discretion of the employer now the employee may not have been happy about that and may have hoped subjectively that at some point in time that a war would have agreed to some set match and he says he's taken steps sure to make sure we agree on the well if there was a component of his salary that was supposed to be non discretionary ok but was not sent was a non discretionary component was not sent whether reason apple employee or not he would potentially have a point here this case will suggest if you're not that there would be no agreement then of a material term right no contract correct or not he said over and over to this record this was a non discretionary component whatever ambiguity there might have been in the written complaint i want to read he said i want to repeat to make clear this is not discretionary and the district court just dismissed the case didn't say anything in the opinion about discretionary doesn't make it not discretionary you've got an employer employee relationship he accepted bonuses in september october that were up and on discretion he explains the whole situation he says the discretionary part was the same that the other lawyers were getting the non discretionary part was the matter he brought in and they didn't send it initially because they don't know how much was going to be paid out by the client so they left that open and he said his base salary w draw against the non discretionary bonus so there's a lot of details about why he believed based upon their discussions that this was nondiscretionary fixed number that was going to be i would argue your honor that the conduct the after that conversation was june th of two thousand and eleven the conduct there after and the conduct that he participated in working continuing to work excepting the bonuses regularly and some that one up some that went down some that he was happy with some that he complained about and the course of conduct there in his substantial performance affirmed that the contract that's a motion to dismiss issue that we're going to we're going to make that he says in the complaint that he was continually trying to negotiate the counter proposal so why would you have discovery play it out to see what those interactions were over time his wishful thinking and his efforts to renegotiate do not a non discretionary bonus make is what i would submit to your hon saying what he's saying is essentially in any context in any employment agreement in new york if the employer he goes back and says i want more you said i could have more i want to talk about it and the employer says well i'll hear you want it and maybe i'll give you more here maybe i'll give you more there this isn't the ordinary case he says it was a civic reason was kept open because he had a week to see how much the client was going to pay that this wasn't just a normal situation we're going to based on a bonus this was a matter he was bringing in that the  bonus percentage was we kept open to see how much it was worth right so this is not an ordinary keys right i would submit that it's an ordinary case like any other employee who brings in a customer whether it's a law firm or a sales or a plumbing company where somebody picks up a potential customer it's an ordinary case in that regard is very normal for employees to be remunerated or rewarded for bringing in business and that's essentially what this was the case in the st department kaplan that says ordinarily the question of whether unpaid compensation concert's a discretionary bonus were non for earned wage is a question of fact but when you see what i think you see in those cases your honor is that's in instances where employees don't get any bonus at all not actionable at least for a motion to dismiss whether was discretionary or not in that case your honor was the bonus was not paid at all that's my point those cases hold for the principle that when you have the right to a discretionary bonus and the employer gives you no discretionary bonus and gives you no analysis of how they came to the conclusion on whether to give you that bonus or not then it falls into the bucket of compensation and for that reason it cannot be dismissed on summary judgment  employee who gets a discretionary bonus cannot sue for unjust enrichment or quantum merriment for that unjust and for that bonus so what you're calling something broader than that i understand that you're saying that once you accept some portion of sound you can argue that it was nondiscretionary that his argument was not discretion you're saying no if you would it was not discretion you wouldn't take any money from a bonus i don't know that mr files is a matter of law i would go then to the case i think it's bessemer trust which we cited in our papers and i go back to that general this court has said look you can employ hire someone as an at will employee you can terminate them at any time by the same token you can change the terms of their employment at any time so i think this court on that basis alone could dismiss this complaint based upon the fact that over the course of several months mr brook accepted those payments maybe not happy with it but he took the money he accepted the money one dollar point i want to make is it was two hundred and ninety five thousand dollars in bonuses he was offered for seven months of work in addition it was eighty seven thousand dollars in salary so the sum total would have been just shy of three hundred and ninety thousand dollars for seven months of work if he had accepted the last seventy five thousand dollars bonus which he was in agreement cites i know this is a small portion of the money but just for purposes of the analysis that was weeks before the agreement quote unquote agreement was reached that he says he never got paid for the agreement was reached in june th right now but he started working on the matter prior to that he said he never got any money so what would not be actionable i suppose on that simple basis for that period of time he could have brought a single isolated claim i can assure you there's nothing in the record to say that he ever asked the employer please pay me he was a lawyer responsible about the end to he says at the end it was a lot of money paid at the very end that he did not get it on the record is very clear dollar for dollar from february on got every penny and then the last payment for work he had done that was payment for work while he was the associate at the firm he was offered seventy five thousand dollars he refused it he keeps saying i was never given anything from the last five hundred thousand dollars the employer said to him i will give you a seventy five thousand dollars bonus even though you took the client and you're gone and you've left and we no longer have the work yeah well i mean that would be reasonably so i think from an employer for the purpose that here we are eight years later in a lawsuit over this thing i don't think it was anything unconscionable or improper for the employer to say i will give you a seventy five thousand dollars discretionary bonus if you sign a release and he refused to sign it  moment mr peet i think that there has to be a reasonable expectation on the quantum erowid front and i think this is what judge daniel's opinion said and i think it makes sense mr peet was paid one hundred and twenty five dollars per hour for every hour that he  worked he wanted to pay to be paid four hundred and fifty dollars per hour that's what his pleading state four hundred and fifty dollars per hour is what the employer was playing he was a contract attorney it's not reasonable to expect that you'll get every dollar that is paid for your work by the where someone gave a dollar amount for what they plea their pleading this is what i'm worth here's a number of my hourly rate and last on a motion to dismiss you decide to sell the case which is not there was no overhead with respect to him right you weren't paying his benefits or anything or act right so he's saying this is what the rd party paid you for my services and i'm just in one from a pleading standpoint that case should go forward what other number would he be able to set it is  what a rd parties actually paid for his services i just think that's an unreasonable estimation on a for a contract attorney who is being paid one hundred and twenty five dollars an hour is that you had a case called long ago that was cited in the papers someone who is an independent consultant wanted the employer to pay what she would have gotten as an independent consultant and the case was reversed on summary judgment in the nd circuit as in a footnote said it's not reasonable that she would get what she is an independent consultant because you know there's overhead now she's an appointee but they didn't say case case over that was something that we worked out what what the docs and should be made where there was overhead if there was no overhead so i don't understand how you could distinguish the one go from this one i still would submit to the court that there has to be some expectation of a number we didn't see a number for mr p the amount and the value of that of his services he was remunerated for the contract was perhaps i will revisit it maybe i'll pay you more mr simon met his obligation to pay of the one hundred and twenty five there was an agreement to agree he didn't have to pay more in the future and for that reason i this really comes down to at least as to my claims is the standard of review and whether i am entitled to the reasonable inferences from the complaint as to the original complaint on that one it did not say the expressed words this component is non discretionary but it is certainly implied again and again and there is and there are a few statements in there which were what happened to make it into the complaint when trying to support of a fraud claim which we're not pursuing on appeal that one focused on in isolation could go the other way but that doesn't mean what element would be non discretionary mean to say that you expected something is one thing but all you've said this you expected a fair amount and fairness is in the eye i suppose both to hold the pay you are in the payee but it does suggest some discretion in setting an amount doesn't it it does but that discretion belongs to both parties because it also alleges that that the two of us simon and i would together have that discussion in the complaint it says that simon in fact when i proposed what about it was nondiscretionary i mean you're both go sheeting even in your telling of this circumstance all that was not discretionary was that there would be a bonus payment yes so that's right the only thing that was agreed on is that there would be a bonus payment and as mentioned before there was a two month period when i happen to bill the most hours where once the money was actually received from doing read no bonus payment was made without the added requirement of a release which is essentially trying to negotiate a contract and not trying to perform on an existing contract if there was one but in terms of you know it's understandable how the good sister court could think that there was discretion and where there isn't an agreement whenever there's a parties that have an agreement to agree they aren't going to be able to compel the other to actually agree there was no way to force simon to agree to something that's why these contracts are unenforceable he has the discretion to agree or not but if parties have an agreement to agree as we did where the only thing we agreed on is that it should be fair and obviously confidential there was enough filed in other course for me to be able to say that they certainly did seek to recover the entirety of the attorney's fees from him later and there were disputes over when they should stop payment payments were slow payments were oftentimes negotiated and that was something that even though i had been associated greenberg traurig i was very familiar with and in fact there had been prior appellate counsel retained that withdrew because duane reed wasn't paying them and so this was a situation eyes i see that