United States District Court, W.D. North Carolina, Charlotte Division
C. KEESLER, UNITED STATES MAGISTRATE JUDGE.
MATTER IS BEFORE THE COURT on “Defendants'
Second Motion For Partial Summary Judgment” (Document
No. 117) and Plaintiff's “Motion For Partial
Summary Judgment” (Document No. 120). The parties have
consented to Magistrate Judge jurisdiction pursuant to 28
U.S.C. § 636(c), and these motions are ripe for
disposition. Having carefully considered the motions, the
record, and applicable authority, the undersigned will
grant Defendants' motion and deny
action, Plaintiff Anne Baclawski (“Baclawski” or
“Plaintiff”) “seeks redress for overtime
violations and unlawful retaliation pursuant to the Fair
Labor Standards Act, 29 U.S.C. §§ 201 et seq.
(“FLSA”) and the North Carolina Wage and Hour Act
(“NCWHA”).” (Document No. 14, p.1).
Plaintiff was employed by Defendants between October 2013 and
primary duties and responsibilities were running errands for,
serving as a housekeeper and nanny for, and taking care of
the personal residences of Mr. Peter Fioretti.”
(Document No. 14, p.1). Although Plaintiff primarily worked
for Defendant Peter Fioretti (“Fioretti”), she
claims that Defendant Mountain Real Estate Capital LLC
(“Mountain”) was also her employer and/or
“joint employer.” (Document No. 14, p.3).
Plaintiff further contends that Defendant Mountain Asset
Management Group LLC (“Mt. Asset Mgmt.”) was her
employer and/or “joint employer, ” and that she
received her paycheck from Mt. Asset Mgmt. (Document No. 14,
specifically, Plaintiff alleges that she worked a
“substantial number of overtime hours, ” but
instead of paying her appropriately for those hours,
Defendant Fioretti, Mountain's chief executive officer,
sought to misclassify her as a 1099 independent contractor
and an exempt, salaried employee of Mountain - in order to
evade overtime pay requirements. (Document No. 14, p.1).
“As a result, Plaintiff repeatedly complained to
Fioretti about the fact that she was not being compensated
for the substantial number of overtime hours that she was
working.” (Document No. 14, p.89). In or about June
2015, Plaintiff resigned her employment. (Document No. 14,
alleges that Defendants retaliated against her when she
sought compensation for her overtime hours by: demanding
repayment of $25, 000; threatening her arrest; and
threatening to sue her boyfriend, John Milem
(“Milem”). (Document No. 14, p.2, 91-92).
initiated this action with the filing of her
“Complaint” (Document No. 1) on September 8,
2015. Plaintiff contends that Defendants violated the Fair
Labor Standards Act and the N.C. Wage and Hour Act by failing
to pay Plaintiff time and a half for hours worked during the
course of her employment, and by unlawfully retaliating
against the Plaintiff. See (Document No. 1).
November 4, 2015, Mountain and Fioretti filed an action
against Plaintiff and Milem in the Superior Court of
Mecklenburg County. (Document No. 14, p.92). The allegations
in the state court action include stealing a mattress from
Defendant Fioretti, using Defendants' money to repair a
truck, and failing to disclose that Plaintiff had an economic
interest in Milem's company when she recommended that
Defendant Fioretti retain its services. Defendants contend
that they were unable to bring these claims in this federal
lawsuit because the claims are not compulsory counterclaims
and because this Court did not have an independent
jurisdictional basis over those claims or Milem.
“First Amended Complaint” (Document No. 14) was
filed on November 21, 2015, and asserts five (5) causes of
action against Defendants: (1) Fair Labor Standards Act -
Overtime Wages; (2) Fair Labor Standards Act - Retaliation;
(3) N.C. Wage and Hour Act - Overtime Wages; (4) N.C. Wage
and Hour Act - Retaliation; and (5) N.C. Retaliation In
Employment Discrimination Act - Retaliation. (Document No.
14, pp.94-99). The “Answer to Amended Complaint by
Peter Fioretti, Mountain Asset Management Group LLC, and
Mountain Real Estate Capital LLC” (Document No. 15) was
filed on December 14, 2015.
January 6, 2016, the Court entered a “Pretrial Order
And Case Management Plan” (Document No. 18). The Court
set case deadlines as follows: discovery completion - July
15, 2016; mediation - August 5, 2016; motions deadline -
September 16, 2016; and trial - January 9, 2017. (Document
parties filed a “Notice Of Settlement” (Document
No. 28) on July 1, 2016; however, in exchanging settlement
documents, the parties realized they had a continuing dispute
that prevented complete agreement. See (Document
Nos. 30, 33, 37 and 41). The undersigned ultimately declined
to enforce the purported settlement agreement. See
(Document No. 48).
November 21, 2016, the parties filed their “Joint
Stipulation of Consent to Exercise Jurisdiction by a United
States Magistrate Judge.” Case deadlines were re-set on
January 19, 2017 as follows: discovery completion - March 31,
2017; motions deadline - April 21, 2017; and trial - August
7, 2017. (Document No. 55).
“Motion For Summary Judgment” (Document No. 63)
was filed April 18, 2017; and “Defendants' Motion
For Partial Summary Judgment” (Document No. 65) was
filed April 21, 2017. A motions hearing was held on June 29,
2017; and on July 18, 2017, the undersigned denied
Plaintiff's motion in part, and granted in part and
denied in part Defendant's motion. (Document No. 77). The
Court concluded that Defendant's claims related to the
state court action were not retaliatory as a matter of law,
and thus granted Defendant's motion as to that part of
Plaintiff's retaliation claims. (Document No. 77,
September 8, 2017, a Final Pretrial Conference was scheduled
for October 24, 2017, to be followed by a trial beginning
October 31, 2017. “Plaintiff's Emergency Motion To
Continue Trial” (Document No. 107) was filed on October
23, 2017. The “…Emergency Motion…”
was granted, but a Final Pretrial Conference / hearing was
still held on October 24, 2017.
the hearing on October 24, 2017, the undersigned determined
that the dispositive motions deadline should be re-opened for
the limited purpose of addressing any remaining allegation of
retaliation. See (Document No. 115, pp.5-6). Based
on the arguments of counsel, it appeared likely that there
was no genuine issue of fact regarding a retaliation claim to
present to a jury. Id. The remaining retaliation
claim seemed to simply be that Defendants had demanded
Plaintiff “return a portion of her lawfully owed
compensation.” See (Document No. 115, p.5)
(quoting Document No. 14, pp.91, 97-98).
“Defendants' counsel acknowledged at the hearing
that they had initially made such a demand, but soon
thereafter realized the demand was in error, and promptly
withdrew their request for a return of compensation.”
on the foregoing, the parties were allowed to file additional
dispositive motions by November 22, 2017; and this matter was
re-scheduled for trial during the undersigned's civil
term beginning February 5, 2018. (Document Nos. 115 and 116).
A Final Pretrial Conference is scheduled for January 30,
2018. (Document No. 116).
pending before the Court are: “Defendants' Second
Motion For Partial Summary Judgment” (Document No. 117)
and Plaintiff's “Motion For Partial Summary
Judgment” (Document No. 120) filed on November 22,
2017. These motions have been full briefed, with the
exception of Plaintiff failing to file a reply brief, or
notice of intent not to reply, as ...