Allison v. Clos-ette Too, L.L.C. et al
| Claire Allison |
| Clos-ette Too, L.L.C., Clos-ette, L.L.C. and Melanie Charlton Fascitelli |
| 1:2014cv01618 |
| March 10, 2014 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| New York |
| James C. Francis |
| Lewis A. Kaplan |
| Fair Labor Standards Act |
| 28 U.S.C. ยง 1441 |
| None |
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Filing
148
ORDER adopting 134 Report and Recommendations, denying 109 Motion for Summary Judgment filed by Claire Allison, granting in part denying in part 113 Motion for Summary Judgment filed by Clos-ette Too, L.L.C. This is an action fo r breach of an alleged employment contract or, alternatively, in quasi contract and for failure to pay plaintiff the minimum wage as required by law and for breach of an alleged contract to transfer equity in Clos-ette Too, LLC to plaintiff. Both sides move for summary judgment. In a report and recommendation dated, April 20, 2015 (the "R&R"), Magistrate Judge James C. Francis, IV, recommended that plaintiff's motion be denied and defendants' granted to the extent of d ismissing the plaintiff's quasi-contract claim regarding equity but denying it in all other respects. Both sides objected to the R&R at least in some respects. Plaintiff objects to so much of the R&R as recommended denial of that part of her m otion as sought summary judgment for her claims for payment of at least the minimum wage under the Fair Labor Standards Act and the New York Labor Law for the period November 30, 2012 until April 4, 2013, this on the premise that the defendants� 39; admitted in the alleged equity agreement that plaintiff was an employee. The objection, however, is without merit both because plaintiff did not rely on that alleged admission in seeking summary judgment and because the characterization of pl aintiff as an "employee" in the alleged equity agreement is ad "admission" only in the evidentiary sense that it is a statement by a party-opponent and therefore admissible against the author under Rule 801(d), not in the sense that it is a binding and conclusive concession of that point. It must be taken together with all other pertinent evidence on the point. In all the circumstances, there is clearly a genuine issue of material fact as to whether plaintiff was an empl oyee during the relevant period. Defendants object to the R&R insofar as Magistrate Judge Francis concluded that there were genuine issues of material fact on most of plaintiff's claims for relief. Having considered the objections and plaintif f's response, the Court finds no error. Accordingly, plaintiff's motion for summary judgment [DI 109] is denied in all respects. Defendants' motion for summary judgment dismissing the complaint [DI 113] is granted to the extent that plaintiff's quasi-contract claim regarding equity is dismissed but denied in all other respects. (Signed by Judge Lewis A. Kaplan on 9/13/2015) (mro)
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Filing
98
MEMORANDUM AND ORDER denying 71 Motion to Amend/Correct; denying 71 Motion to Compel; granting in part and denying in part 85 Motion to Quash: For the foregoing reasons, the plaintiff's motion to amend the complaint and motion to com pel (Docket no. 71) are denied, and her motion to quash (Docket no. 85) is granted in part and denied in part. Discovery is re-opened for the limited purpose of allowing Lone Star and Gerald Casey to respond to the defendants' subpoenas, as limited above; they are directed to do so within 10 days of the issuance of this order. (Signed by Magistrate Judge James C. Francis on 1/9/2015) Copies Mailed By Chambers. (tn)
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Filing
52
ORDER for 23 Motion to Amend/Correct filed by Claire Allison, 15 Motion to Dismiss filed by Melanie Charlton Fascitelli, Clos-ette Too, L.L.C., 17 Motion to Dismiss filed by Clos-ette, L.L.C., 43 Report and Recommendations. Plainti ff's motion for leave to amend the complaint (DI 23) is denied, and the defendants' motions to dismiss for failure to state a claim (DI 15, 17) are (1) granted to the extent of dismissing the plaintiff's common law claims for fraud and promissory estoppel against all three defendants; the claims for breach of contract and quasi-contract against Ms. Fascitelli and Clos-ette; the Fair Labor Standards Act and New York Labor Law claims against Clos-ette; and the New York Civil Rights Law privacy claim and (2) denied with respect to the plaintiff's Labor Law claims against C2 and Ms. Fascitelli and with respect as well as to the quasi-contract claim against C2 all substantially for the reasons set forth in the report and recommendation of Magistrate Judge James C. Francis IV to which no objections have been filed. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 10/7/2014) (ajs)
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