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DONALD R. FURTH v. INC. PUBLISHING CORPORATION (07/14/87)

decided: July 14, 1987.

DONALD R. FURTH, PLAINTIFF-APPELLANT,
v.
INC. PUBLISHING CORPORATION, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 85 C 4730 -- Prentice H. Marshall, Judge.

Author: Flaum

Before WOOD, JR., FLAUM, and EASTERBROOK Circuit Judges.

FLAUM, Circuit Judge. The plaintiff, Donald R. Furth, filed suit against his former employer, Inc. Publishing Corporation ("Inc."). He alleged that Inc. had wrongly withheld commissions that were due him. Furth's claim was based on the theory that, because he was the "procuring cause" of the placement of certain advertisements in Inc. magazine, he was entitled to the commissions under state law. At the close of Furth's case, Inc. moved for a dismissal under Federal Rule of Civil Procedure 41(b).*fn1 The district court granted the motion, holding that Furth was not entitled to recovery for approximately 95 % of the advertisements for which he sought commissions. Furth appealed, arguing that he put forth sufficient evidence entitling him to all of the commissions. We disagree with Furth, and affirm the judgment of the district court.

I.

Donald A. Furth was employed by the defendant, Inc., as an advertising salesman for its monthly business publication, Inc. magazine, on a salary-plus-commission basis. His sales territory consisted of fifteen midwestern states. He was employed at Inc. from mid-1978 (its first issue was published in April, 1979) through the end of March, 1984.

Because Furth was an at-will employee, there was no written employment agreement between the parties, except for a written commission schedule. The agreement provided for an annual salary of $60,000, and commissions based on each page of advertising Furth sold.

On March 27, 1984, the associate publisher notified Furth that he was fired. On March 30, Furth received a letter outlining the terms of his termination, Furth was paid his full salary through March 31, 1984. Furthermore, although not obliged to do so, Inc. paid Furth commissions on insertion orders received by Inc. magazine through April 9, 1984, to account for any delays caused by mailing.

Furth filed this diversity action against Inc. Publishing Corporation, asserting that he was entitled to commissions for advertisements printed in Inc. magazine for approximately one year after his discharge. He based his claim on the theory that he had been the "procuring cause" of such advertisements. The case was tried to the court on November 3 and 4, 1986. At the close of Furth's case, the defendant moved for a dismissal "on the ground that upon the facts and the law the plaintiff has shown no right to relief," Fed. R. Civ. P. 41(b). The district court granted the motion as to approximately 95 % of the advertisements for which Furth sought commissions. The court kept five advertisements in the case. The defendant, at that point, stipulated to liability to only those five advertisements, and rested its case. The district court then entered judgment against Inc. for $2,800, and Furth appealed.

On appeal, we must decide whether the district court's findings of fact support its conclusion that Furth failed to prove that he was the procuring cause of the advertisements in question. Furth argues on appeal, as he did in the district court, that because he was "the only salesperson working on and responsible for virtually all of the advertiser accounts . . . for which ads he claims commissions, from the magazine's very inception in 1978, he is entitled to commissions . . . through the magazine's May, 1985 issue." Pl. Br. at 1-2 (footnote omitted). The defendant argues that Furth has put forth no proof to support his claim that he was the procuring cause of the advertisements for which he seeks compensation, and that he was paid all the commissions to which he was entitled.

II.

"In ruling on a Rule 41(b) motion, the court must take an unbiased view of all the evidence, direct and circumstantial, and accord it such weight as the court believes it is entitled to receive." Sanders v. General Services Administration, 707 F.2d 969, 971 (7th Cir. 1983) (citation omitted); accord Hersch v. United States, 719 F.2d 873, 876 (6th Cir. 1983). The district court should make no special inferences in the plaintiff's favor. Sanders, 707 F.2d at 971. The court must weigh all the evidence and decide where the preponderance lies.

In granting a Rule 41(b) motion, a district court's factual findings are made pursuant to Rule 52(a), and may not be set aside unless clearly erroneous. See Fed. R. Civ. P. 41(b); Sanders, 707 F.2d at 971; accord Hersch, 719 F.2d at 877. However, "the question [of] whether the district court's fact findings are clearly erroneous is separate from the question [of] whether, under the facts and the law, the plaintiff has shown no right to relief." 5 J. Moore, J. Lucas, and J. Wicker, Moore's Federal Practice, para. 41.13[1], at 41-166 to 41-167 (2d ed. 1986).*fn2 The plaintiff has the burden of proving his or her case by the preponderance of the evidence. Id. at para. 41.132[4], at 41-178 to 41-179. Therefore, based on the district court's findings of fact (unless shown to be clearly erroneous), we must determine whether, as a matter of law, Furth introduced sufficient evidence to prove by the preponderance of the evidence that he was the procuring cause of the advertisements at issue. Whether Furth actually was the procuring cause of these advertisements is a legal question.

III.

In Illinois,*fn3 absent a written contract to the contrary, Technical Representatives v. Richardson-Merrell, Inc., 107 Ill. App. 3d 830, 833, 438 N.E.2d 599, 602, 63 Ill. Dec. 668 (1st Dist. 1982), a salesperson is "clearly entitled to commission on sales which occurred prior to [his or her] resignation, and, as to post-resignation sales, a commission is in order if it is established that [the salesperson] was the procuring cause of the sale," Scheduling Corporation of America v. Massello (Massello I), 119 Ill. App. 3d 355, 364-65, 456 N.E.2d 298, 305, 74 Ill. Dec. 796 (1st Dist. 1983) (emphasis added) (citing Technical Representatives, 107 Ill. App. 3d at 833, 438 N.E.2d at 602; accord Dahly Tool Co. v. Vermont Tap and Die Co., 742 F.2d 311, 313 (7th Cir. 1984). "Under the procuring cause rule, a [salesperson] may be entitled to commissions on sales made after the termination of a contract if that party procured the sales through its activities prior to termination." Scheduling Corporation of America v. Massello (Massello II), 151 Ill. App. 3d 565, 568, 503 N.E.2d 806, 809, 104 Ill. Dec. 944 (1st Dist. 1987); Schroeder v. Meier-Templeton Associates, Inc., 130 Ill. App. 3d 554, 560, 474 N.E.2d 744, 750, 85 Ill. Dec. 784 (5th Dist. 1984). The purpose of this rule ...


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