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Celentano v. Eli Global, LLC

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

February 4, 2019

MARCELLO CELENTANO, Plaintiff,
v.
ELI GLOBAL LLC AND ECL GROUP LLC, Defendants.

          MEMORANDUM AND RECOMMENDATION

          David S. Cayer United States Magistrate Judge.

         THIS MATTER is before the Court on “Defendants' Rule 12(b)(6) Motion to Dismiss and Alternative Motion to Transfer Division, ” Doc. 10, as well as the parties' briefs and exhibits. Docs. 11, 12, 16 and 24.

         This matter was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) on November 7, 2018, and this Motion is now ripe for the Court's consideration.

         Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that the Motion be denied as discussed below.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This case involves an Employment Confidentiality, Non-Solicitation and Non-Compete Agreement between Plaintiff and Defendants. Accepting the allegations of the Complaint as true, Plaintiff Celentano was hired as CEO by Claris Vision LLC, a private equity owned business consisting of four ophthalmology surgical practices in New England. Defendant Eli Global LLC wholly owns ECL Group LLC. ECL Group LLC owns several eye care practices. In late 2017, as a result of a merger, Defendants employed Plaintiff. He and Defendants entered into an Employment Agreement attached as Exhibit A to Plaintiff's Complaint. Doc. 1. The parties to the Agreement are Plaintiff, Eli Global LLC, and its subsidiary ECL Group LLC. The Agreement designates the “Employer” as “ECL and other entities” Id. at ¶A. The Agreement states that “Executive [Plaintiff] will be employed by Employer as President, Provider Management Division...” Id. at ¶1.2.

         Plaintiff signed the Agreement on or about December 20, 2017 and returned it to Defendants. Plaintiff alleges that “Defendants are believed to have signed the Agreement but did not return a signed copy to him….” Id. at ¶4. Following his employment by Defendants, Plaintiff was based in Chicago and reported to Mike Gallup. Up until his termination, Defendants observed all terms of the Agreement.

         The Agreement allows Plaintiff to be terminated “immediately upon written notice by Employer to [Plaintiff] specifying Cause” or “upon at least thirty (30) days written notice to [Plaintiff] without Cause.” Id. at ¶2.1. If “Employer” terminates Plaintiff without Cause, it must pay him, among other benefits, his annual salary (as it stood immediately prior to termination) for twelve months plus his annual bonus for the year in which his employment was terminated. Id. at ¶2.4(c). The Agreement is construed under North Carolina law. The Agreement also contains a Jurisdiction clause that states “parties hereto irrevocably and unconditionally submit to the exclusive jurisdiction of any State or Federal court sitting in North Carolina, over any suit, action or proceeding arising out of or relating to this Agreement.” Id. at ¶5.12.

         Plaintiff was fired on March 1, 2018. He alleges that he committed none of the acts defined as Cause for termination and is thus entitled to payment under the Agreement. On March 29, 2019, Plaintiff filed his Complaint alleging breach of contract and violation of the North Carolina Wage and Hour Act.

         Defendants filed this Motion to Dismiss arguing that they never employed Plaintiff and did not sign or otherwise assent to the Agreement. Alternatively, they argue that the case should be transferred to the Charlotte Division because neither Defendant resides within the Asheville Division.

         II. STANDARD OF REVIEW

         In reviewing a Rule 12(b)(6) motion, “the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 563. A complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         In Iqbal, the Supreme Court articulated a two-step process for determining whether a complaint meets this plausibility standard. First, the court identifies allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555) (allegation that government officials adopted challenged policy “because of” its adverse effects on protected group was conclusory and not assumed to be true). Although the pleading requirements stated in “Rule 8 [of the Federal Rules of Civil Procedure] mark[] a notable and generous departure from the hyper-technical, code-pleading regime of a prior era ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79.

         Second, to the extent there are well-pleaded factual allegations, the court should assume their truth and then determine whether they plausibly give rise to an entitlement to relief. Id. at 679. “Determining whether a complaint contains sufficient facts to state a plausible claim for relief “will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. “Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it ...


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