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.

Baclawski v. Fioretti

United States District Court, W.D. North Carolina, Charlotte Division

January 9, 2018

ANNE BACLAWSKI, Plaintiff,
v.
PETER FIORETTI; MOUNTAIN REAL ESTATE CAPITAL LLC; and MOUNTAIN ASSET MANAGEMENT GROUP LLC, Defendants.

          ORDER

          DAVID C. KEESLER, UNITED STATES MAGISTRATE JUDGE.

         THIS 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 Plaintiff's motion.

         I. BACKGROUND

         By this 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 June 2015.

         “Plaintiff's 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, p.4).

         More 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, pp.9091).

         Plaintiff 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).

         Baclawski 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).

         On 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.

         Plaintiff's “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.

         On 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 No. 18).

         The 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).

         On 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).

         Plaintiff's “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, pp.11-12).

         On 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.

         Following 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.” Id.

         Based 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).

         Now 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 ...


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.