United States District Court, E.D. Virginia, Alexandria Division
O'Grady United States District Judge.
Nicolo Nisbett has brought a five-count Complaint against
Defendants Reconart, Inc. and Hristo Marintchev. Defendants
have moved to dismiss. (Dkt. No. 12). The matter has been
fully briefed, and the Court found that a hearing was not
necessary to resolve the issues presented by the parties.
Nisbett brings five claims against Defendants. These claims
fall into two categories. First, Counts I, II, and V allege
breach of contract and quantum meruit claims based on
Plaintiffs 5.5 years of work for Reconart. Second. Counts III
and IV allege wrongful termination and related claims arising
from Plaintiffs termination. For the following reasons, the
Court DENIES the motion to dismiss for the breach of
contract/quantum meruit claims, but GRANTS the motion for the
wrongful termination claims. Because only the wrongful
termination claim is alleged against Defendant Marintchev, he
is hereby DISMISSED from the case entirely.
Nisbett is a software sales and marketing professional.
Nisbett met Marintchev, the majority owner of Reconart, while
Nisbett was working with a company called Fiserv in 2005. In
2010, Marintchev convinced Nisbett to join Reconart and
manage the sales and marketing department of the software
startup. At the time, Nisbett had a job offer with Fiserv in
his home country of England, but he decided to join Reconart,
in part, because Marintchev could sponsor his permanent
residence application in the U.S.
began working full-time and exclusively for Reconart in
October 2010. His duties were significant. See
Compl. ¶ 7. In exchange for his work, "Marintchev
promised Nisbett 10 percent commission on all sales made by
the company." Id. ¶ 8. Marintchev also
promised Nisbett a 24.5% ownership stake in Reconart
(Marintchev would keep his 51% stake and a third party, Ivan
Popov, would also have a 24.5% stake). In spite of these
promises, Nisbett "willingly deferred such compensation
while the company was starting, but always expected that
Marintchev would keep his word to pay commissions or to
otherwise reasonably compensate him for his significant
services." Id. Reconart paid salaries to
Marintchev, Popov, and its other employees.
launched its software product in 2011, and Nisbett's
duties increased accordingly. He began working 60-80 hour
weeks and staying up late and on weekends so he could speak
with international clients in Australia and other parts of
the world. Due in part to these efforts, Reconart experienced
steady growth from 2011 to 2014. Sales dipped in 2015,
they saw an uptick again in Ql of 2016.
his entire 5.5 years at Reconart, Nisbett received only $74,
583 in actual compensation, all of which came in 2012 and
2013. Throughout his tenure at the company, Reconart
reimbursed Nisbett for expenses. Prior to March 1, 2016,
Marintchev had never questioned Nisbett's expenses.
November 3, 2015,  Marintchev, Popov, and Nisbett executed a
Corporate Shareholders' Agreement (the
"Agreement") that is central to the parties'
dispute in this case.Generally, the Agreement sets forth the
ownership structure of Popov and Nisbett owning 24.5% of the
company and Marintchev owning 51%. The Agreement also sets
forth the owners' capital investment in the company and
contemplates their appointment as officers of the
are a few key provisions that are worth summarizing here:
§ 1.1.6. "Canital Contribution"
This term is defined as "the cash and services provided
by each Shareholder for shares of common stock of the
Corporation as listed in Exhibit A."
§ 1.1.16. "Starting Assets and
This term is defined as the "tangible and intangible
property owned or owed by the Corporation and listed in
§ 3.1. Capital Contributions
This Section states that Marintchev has made a contribution
of $510 while Nisbett and Popov have each contributed $245.
§ 4.1. Board of Directors.
This Section states that Marintchev, Popov, and Nisbett shall
make up the original Board of Directors. They shall continue
until: (a) they are no longer employed; (b) death,
resignation, or disability; or (c) they are ...