Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kelly v. Hospitality Ventures LLC

United States District Court, E.D. North Carolina, Western Division

September 5, 2017

BRANDON KELLY on behalf of himself and all others similarly situated, Plaintiff,
v.
HOSPITALITY VENTURES LLC doing business as Umstead Hotel and Spa, SAS INSTITUTE INC., NC CULINARY VENTURES LLC doing business as An Asian Cuisine, and ANN B. GOODNIGHT, Defendants.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This matter is before the court on plaintiff's motion to amend complaint (DE 37).[1] The motion has been briefed fully, and the issues raised are ripe for ruling. For the following reasons, plaintiff's motion is granted in part and denied in part.

         STATEMENT OF THE CASE

         Plaintiff commenced this action on February 21, 2017, asserting claims against defendants under the Fair Labor Standards Act (FLSA) and the North Carolina Wage and Hour Act (NCWHA), based upon their alleged failure to pay plaintiff adequate wages and overtime compensation, as well as alleged acts of retaliation, during plaintiff's work as a server at a restaurant in Cary, North Carolina, named An Asian Cuisine (“An” or the “restaurant”). Plaintiff seeks damages for unpaid minimum wages; overtime compensation; liquidated and statutory damages; further damages and other relief for retaliation; as well as fees, costs, and interest. On February 22, 2017, plaintiff filed a consent to join suit by another former server at the restaurant, Wai Man Tom (“Tom”), as a party plaintiff in collective action under the FLSA. Defendants Hospitality Ventures LLC doing business as Umstead Hotel and Spa (“Umstead”), SAS Institute Inc. (“SAS”), and NC Culinary Ventures LLC doing business as An (collectively, the “entity defendants”), filed an answer on March 31, 2017.

         Defendant Goodnight filed a motion to dismiss the same date, asserting that plaintiff fails to state a claim against her, on the basis that plaintiff does not allege that defendant Goodnight was an employer or plaintiff under the FLSA or NCWHA. Plaintiff responded in opposition to the motion on April 20, 2017.

         On April 26, 2017, plaintiff filed an emergency motion for hearing, referencing “alarming circumstances brought to their attention by counsel for Defendants on the morning of April 26, 2017.” (DE 25). The court set hearing for the afternoon of April 27, 2017. That day, defendants filed a notice describing certain emails that counsel for defendants received “from an unknown person about this action, ” purportedly sent from “Kathy Hanrahan, ” (“Hanrahan”), an editor for WRAL Television in Raleigh, North Carolina. (DE 27 at 1-2). Defendants noted that Hanrahan “denies sending the emails and she has contacted the Federal Bureau of Investigation (“FBI”) about the misuse of her identity, ” and defendants asserted that the emails raise issue as to whether probable cause exists that a federal criminal offense has been committed. (Id. at 2).

         The court held telephonic hearing on April 27, 2017, wherein plaintiff's counsel expressed concern that defendants' counsel may have “committed an ethical violation . . . of the North Carolina Rules of Professional Conduct by communicating with a party that they know was represented by counsel.” (DE 29 at 6). Plaintiff's counsel also expressed concern, inter alia, that defendants may have retaliated against plaintiff, in violation of § 15(a)(3) of the FLSA, by causing Hanrahan to report to FBI. (DE 29 at 10). After hearing the perspective of plaintiff and defendants' counsel, the court suggested that “plaintiff['s] counsel seek the guidance of the North Carolina State Bar, ” and the court invited the parties to submit a consent motion regarding scheduling. (Id. at 22)

         On May 17, 2017, plaintiff filed the instant motion to amend complaint, proposing to make three main categories of changes discussed further herein:

1. Amendments to which defendants do not object, including substitution of proposed plaintiff Tom as named plaintiff and designation of plaintiff as an opt-in plaintiff under the FLSA.
2. Additional allegations regarding defendant Goodnight.
3. Additional allegation that defendants “contacted law enforcement, and/or threatened to pursue criminal charges, against Opt-In Plaintiff Kelly, in an effort to pressure him to voluntarily dismiss this lawsuit, and/or have his counsel withdraw from the matter, in order to retaliate against him for this lawsuit.” (DE 38-2).

         On May 19, 2017, by consent order, the court held in abeyance ruling on defendant Goodnight's motion to dismiss until the court entered an order on the motion to amend. The court also extended the deadline for filing a discovery plan until 15 days from the date of the court's order on the motion to amend.

         On June 6, 2017, plaintiff filed a motion for disqualification of defendants' counsel (the “motion to disqualify”) “for numerous violations of the North Carolina Rules of Professional Conduct.” (DE 41). In support of the motion to disqualify, plaintiff noted that the violations had been subject of grievances filed with the North Carolina State Bar (see DE 42 at 8; DE 42-5), and that such violations included alleged “retaliatory threats” to pursue criminal charges, pressure to cause plaintiff to voluntarily dismiss the lawsuit, and to have counsel withdraw from the matter. (DE 42 at 19-22).[2] Defendant's responded in opposition to the motion to disqualify, and plaintiff replied.

         On August 7, 2017, defendants filed a supplemental memorandum in opposition to the motion to disqualify, attaching letters from the North Carolina State Bar dismissing the grievances filed against defendants' counsel, in which the North Carolina State Bar stated that “there was not probable to believe that you violated the Rules of Professional Conduct.” (DE 56; DE 56-1; DE 56-2;DE 56-3;DE 56-4;DE 56-5). On August 9, 2017, the court denied by margin order the motion to disqualify.

         STATEMENT OF ALLEGED FACTS

         The facts alleged in the complaint and proposed amended complaint as pertinent to the instant motion may be summarized as follows. The restaurant operated in Cary, North Carolina, between 2004 and January, 2017. During its operation, the restaurant offered customers “a fine dining experience with authentic Asian cuisine.” (DE 38-1 ¶ 16). Plaintiff worked at the restaurant as an hourly server from approximately 2010 to January 2017, and proposed plaintiff Tom worked at the restaurant as an hourly server from approximately May 2012 to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.