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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND DENNIS W. TRIPLETT, JR. v. STRUCTURAL PRESERVATION SYSTEMS, INC. * * * Civil No. JFM-05-298 * Exempt from ECF * * ***** MEMORANDUM Plaintiff has filed this pro se action for breach of contract and fraud.1 Defendant has filed a motion to dismiss. The motion will be granted but plaintiff will be granted leave to amend. Plaintiff's present allegations are insufficient to state a viable claim for breach of contract. The October 5, 1998 letter that plaintiff relies upon and attaches as Exhibit 1 to his complaint concludes by expressly stating: Please understand that nothing contained in this letter is intended to create a contract of continued employment, as employment with SPS is at will. Instead, this letter serves as an outline of the benefits and salary to be offered upon employment. These benefits and programs may be altered by the company from time to time. In light of this provision of the letter, it is extremely unlikely that plaintiff will be able to frame allegations that do state a claim for breach of contract under Maryland law for nonpayment of his bonus. See Windesheim v. Verizon Network Integration Corp., 212 F. Supp. 2d 456, 462 (D. Md. 2002). Nevertheless, if plaintiff wants to take one additional opportunity to state such a claim, he may amend his complaint. Plaintiff's claim for fraud is insufficient because it is not stated with particularity as

Although plaintiff is appearing pro se, his papers are extremely well prepared. Nevertheless, because of the difficult nature of the issues presented, plaintiff may wish to consider retaining counsel to represent him.

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required by Fed. R. Civ. P. 9(b). Moreover, to the extent that the claim is premised upon defendant simply having paid plaintiff a smaller bonus than he believed he was entitled to, it has the same inherent difficulty as does plaintiff's breach of contract claim. However, plaintiff also appears to allege that defendant actually agreed to pay a bonus twice the amount that it paid, wrongfully required plaintiff to sign a covenant not to compete before paying one-half of the bonus, and then failed to pay that half of the bonus after plaintiff did sign the covenant not to compete. If that is plaintiff's claim, it may be a cognizable one for fraud. However, in that event, plaintiff must state with particularity when defendant agreed to pay him the full bonus to which he alleges he is entitled and the particulars of any misrepresentations that were made to him. These particulars must include the identity of the person who made the misrepresentations and the time when he or she made them. A separate order effecting the ruling made in this memorandum is being entered herewith.

Date: April 13, 2005

/s/ J. Frederick Motz United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND DENNIS W. TRIPLETT, JR. v. STRUCTURAL PRESERVATION SYSTEMS, INC. * * * Civil No. JFM-05-298 * Exempt from ECF * * ***** ORDER For the reasons stated in the memorandum entered herewith, it is, this 13th day of April 2005 ORDERED 1. Defendant's motion to dismiss is granted; and 2. Plaintiff is granted leave until May 13, 2005 to file an amended complaint.

/s/ J. Frederick Motz United States District Judge

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