Rose v. Harloe Management Corp. et al

Filing 19

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 1/17/2017. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DOMINIC J. ROSE, SR.,

:

Plaintiff,

:

v.

:

HARLOE MANAGEMENT CORP.,
et al.,

Civil Action No. GLR-16-761

:
:

Defendants.
MEMORANDUM OPINION
THIS MATTER arises out of Plaintiff Dominic Rose, Sr.’s
termination
(“Harloe

from

Defendant

Management”).

Harloe

Pending

Management

before

the

Court

Corporation
is

Harloe

Management and Diana Harloe’s Partial Motion to Dismiss (ECF No.
10).

The Motion is fully briefed and no hearing is necessary.

See Local Rule 105.6 (D.Md. 2016).

For the reasons outlined

below, the Court will grant in part and deny in part the Motion.
I.
A.

BACKGROUND

Factual Background
In

March

1987,

William

Harloe,

Jr.,

late

husband

of

Defendant Diana Harloe, hired Mr. Rose as an employee of Harloe
Management, a small family-owned business.
No. 2).

(Compl. ¶¶ 7-8, ECF

At his initial hiring, Mr. Rose did not receive a

written employment agreement.

(Id. ¶ 9).

For the next seven years, Mr. Rose served as a “general
employee” of the corporation until he was promoted to “Director

of Operations” in 1994.
promotion, Mr. Rose

(Id. ¶ 10).

After he accepted this

and Harloe Management

did not execute a

written employment agreement outlining Mr. Rose’s compensation
and duties.

(Id.).

Instead, Mr. Harloe promised Mr. Rose that

“if things went well,” then Mr. Rose would be transferred a
percentage of the company.

(Id. ¶ 12).

As the Director of Operations, Mr. Rose was in charge of
managing and operating all nine of Harloe Management’s Burger
King

franchises.

(Id.

¶

11).

At

that

time,

Burger

King

Corporation required one district manager for every four stores.
(Id. ¶ 12).
Management

Mr. Harloe acknowledged that Mr. Rose saved Harloe
from

having

Mr.

Rose’s

to

pay

two

other

salaried

employees.

(Id.)
Under
successful.

(Id.

performance,

Mr.

¶

tenure,
13).

Harloe

As

Harloe
a

contacted

Management

result
his

of

was

very

this

positive

attorney,

Seymore

Goldstein, to discuss the potential ownership transfer promised
previously.

(Id.

¶

14).

After

that

meeting,

Mr.

Harloe

followed up with Mr. Rose and explained that Mr. Goldstein was
uncomfortable with the transfer because Mr. Rose was not family.
(Id.).

Nevertheless, Mr. Harloe insisted that he would find a

way to follow through with his promise to Mr. Rose.

2

(Id.).

In the years that followed, Mr. Rose continued to work as
the Director of Operations and satisfy his duties, never taking
vacations or calling out sick.

(Id. ¶ 18-19).

During this

time, Mr. Harloe would frequently acknowledge Mr. Rose’s work
ethic and sacrifices for Harloe Management.

(Id. ¶ 19).

Then, in 2010, Mr. Harloe, facing personal issues, stopped
coming into the office or his stores.

(Id. ¶ 20).

In his

place, Mrs. Harloe became more involved in the business.
In August 2012, Mr. Harloe committed suicide.

(Id.).

(Id. ¶ 21).

The

night of Mr. Harloe’s death, Mr. Rose visited Mrs. Harloe and
stayed

with

her

until

9:00

a.m.,

matters after Mr. Harloe’s death.

helping
(Id.).

her

with

initial

Mrs. Harloe thanked

Mr. Rose and told him that she would not be able to run Harloe
Management without him.
Shortly

(Id.).

thereafter,

Mr.

Goldstein

and

Mrs.

Harloe’s

accountant told Mr. Rose that all business affairs were now his
responsibility.

(Id. ¶ 22).

They also indicated that going

forward, Mr. Rose would need to participate in all financial
meetings

and

communicated

strategic
Rose’s

(Id.).

responsibilities

as

Mrs.

Harloe

the

remaining

operating partner to all of the Burger King managers.

(Id. at ¶

21-22).

Mr.

decisions.

She also promised Mr. Rose that she would formally

address the ownership transfer in the immediate future.
3

(Id. ¶

23).

At that point, Mr. Rose believed that he was operating as

part owner of Harloe Management.
In

April

2013,

Mr.

(Id.).

Rose

met

with

Mrs.

Harloe,

Mr.

Goldstein, and Mrs. Harloe’s accountant to discuss his future in
Harloe Management.

(Id.).

During this meeting, Mrs. Harloe

repeatedly told Mr. Rose that she was in the process of making
him a franchisee and formally finalizing his ownership in Harloe
Management.
offer

(Id.).

guaranteeing

current

salary

and

company was sold.

Mrs. Harloe also presented Mr. Rose with an
employment
ten

for

percent

(Id. ¶ 24).

of

multiple

years

the

proceeds

net

with
if

his
the

After the meeting, Mrs. Harloe

personally assured Mr. Rose that he would receive a percentage
of the company, regardless of whether Mr. Goldstein approved.
(Id.).

In response, Mr. Rose indicated that he was satisfied

with the offer so long as all that was presented to him came to
fruition.

(Id.).

Over the next year and a half, Mrs. Harloe continually
referred

to

Corporation,

Mr.
its

Rose

as

clients,

a

partner

and

its

to

the

associates.

Burger

King

(Id.

26).

¶

Nonetheless, the ownership interest was never transferred due to
what Mrs. Harloe described as an “estate issue.”

(Id.).

In early 2015, Mrs. Harloe and Mr. Rose began to disagree
on

how

to

move

forward

with

the
4

business.

(Id.

¶

27).

Ultimately,

their

relationship

deteriorated

so

severely

that

Mrs. Harloe fired Mr. Rose in a meeting on October 26, 2015 and
offered

him

a

separation

agreement.

(Id.

¶

28).

At

this

meeting, and later in a letter to the Defendants’ counsel dated
November

6,

2015,

termination.

Mr.

Rose

(Id. ¶ 40).

expressed

his

concerns

with

the

On November 10, 2015, Mr. Goldstein

responded via letter that Mr. Rose was “discharged for cause”
and

retracted

the

October 26, 2015.

severance

package

offered

to

Mr.

Rose

on

(Id. ¶ 41).

Mr. Rose alleges Defendants failed to compensate him in
several ways. First, he asserts that Defendants did not pay him
for three of the days he worked during his final pay period.
(Id.

¶

29).

Second,

he

asserts

that

Defendants

did

not

compensate him for unused vacation that he accumulated at Harloe
Management.
not

(Id. ¶ 30).

compensate

accumulated.

him

Third, he alleges that Defendants did

for

(Id. ¶ 31).

unused

sick

leave

that

he

also

Fourth, Mr. Rose asserts that he

worked at least twenty hours a week of uncompensated overtime.
(Id. ¶ 33).
B.

Procedural Background
Mr. Rose commenced this action in the Circuit Court for

Baltimore County, Maryland on January 29, 2016.

(ECF No. 1).

Defendants removed the case to this Court on March 16, 2016.
5

(Id.).

Mr. Rose asserts the Defendants violated three statutes:

(1) Maryland Wage and Hour Law (“MWHL”), Md. Code Ann., Lab. &
Empl. (“Lab. & Empl.”) §§ 3-401, et. seq. (West 2017) (Count I);
the Maryland Wage Payment and Collection Law (“MWPCL”), Lab. &
Empl.

§§

3-501,

et.

seq.

(Count

III);

and

the

Fair

Labor

Standards Act (“FLSA”), 29 U.S.C. § 201, et. seq. (Count II).
(Compl., ECF No. 2).
claims:

(1)

breach

Mr. Rose also raises seven common law
of

contract

(Count

IV);

(2)

specific

performance (Count V); (3) unjust enrichment (Count VI), (4)
promissory

estoppel

(Count

VII);

(5)

intentional

misrepresentation (Count VIII);1 (6) negligent misrepresentation
(Count IX); and (7) fraud (Count X).

(Id.).

On March 22, 2016, Defendants moved to dismiss Counts I,
II, and III in part, and dismiss Counts VI, VIII, and X in their
entirety.

(ECF No. 10).

Mr. Rose responded in opposition (ECF

No. 13) on April 6, 2016, and Defendant replied (ECF No. 16) on
April 25, 2016.

1

The Complaint mistakenly labels what would be Counts Eight
and Nine, respectively, as Count Eight. The first Count Eight
(Intentional Misrepresentation) will thus be referred to as
“Count
VIII”
and
the
subsequent
Count
Eight
(Negligent
Misrepresentation) as “Count IX.”
6

II.
A.

DISCUSSION

Standards of Review
1.
“The

Rule 12(b)(6)
purpose

of

a

sufficiency

of

a

surrounding

the

facts,

Rule

12(b)(6)

complaint,”

not

to

merits

the

applicability of defenses.”

motion

of

is

to

test

“resolve
a

the

contests

claim,

or

the

Edwards v. City of Goldsboro, 178

F.3d 231, 243–44 (4th Cir. 1999) (quoting Republican Party v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992)).

A complaint fails

to state a claim if it does not contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief,” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to
relief that is plausible on its face,” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference
alleged.”

that

the

defendant

is

liable

for

the

Id. (citing Twombly, 550 U.S. at 556).

misconduct
“Threadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
550 U.S. at 555).
forecast

evidence

Id. (citing Twombly,

Though the plaintiff is not required to
to

prove

the
7

elements

of

the

claim,

the

complaint

must

allege

sufficient

facts

to

establish

each

element.

Goss v. Bank of Am., N.A., 917 F.Supp.2d 445, 449

(D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th
Cir. 2012)), aff’d sub nom. Goss v. Bank of Am., NA, 546 F.App’x
165 (4th Cir. 2013).
In considering a Rule 12(b)(6) motion, a court must examine
the complaint as a whole, consider the factual allegations in
the complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff.

Albright v. Oliver,

510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm’rs of Davidson
Cty.,

407

F.3d

266,

268

(4th

Cir.

Rhodes, 416 U.S. 232, 236 (1974)).

2005)

(citing

Scheuer

v.

But, the court need not

accept unsupported or conclusory factual allegations devoid of
any reference to actual events, United Black Firefighters v.
Hirst,

604 F.2d 844, 847 (4th Cir. 1979), legal conclusions

couched

as

factual

allegations,

Iqbal,

556

U.S.

at

678,

or

“allegations that are merely conclusory, unwarranted deductions
of fact[,] or unreasonable inferences,” Veney v. Wyche, 293 F.3d
726, 730 (4th Cir. 2002).
Generally, “a court may not consider extrinsic evidence at
the 12(b)(6) stage.”

Chesapeake Bay Found., Inc. v. Severstal

Sparrows Point, LLC, 794 F.Supp.2d 602, 611 (D.Md. 2011).
however,

“a

defendant

attaches
8

a

document

to

its

motion

If,
to

dismiss, ‘a court may consider it in determining whether to
dismiss
relied

the
on

challenge

complaint
in

its

the

if

it

was

integral

to

complaint

and

if

plaintiffs

authenticity.’”

Id.

the

(quoting

and

Am.

explicitly
do

not

Chiropractic

Ass’n, Inc. v. Trigon Healthcare Inc., 367 F.3d 212, 234 (4th
Cir.

2004)).

When

the

“bare

allegations

of

the

complaint”

conflict with exhibits or other properly considered documents,
“the exhibits or documents prevail.”

RaceRedi Motorsports, LLC

v. Dart Mach., Ltd., 640 F.Supp.2d 660, 664 (D.Md. 2009).
2.

Rule 9(b)

Allegations of fraud, which Mr. Rose asserts in Counts VIII
and X, are subject to the heightened pleading standard of Rule
9(b).
776,

Harrison v. Westinghouse Savannah River Co., 176 F.3d
783–784

circumstances

(4th

Cir.

1999).

constituting

particularity.”

fraud”

Under
must

Rule
be

9(b),
stated

“the
“with

The “circumstances constituting fraud” include

the “time, place and contents of the false representation, as
well as the identity of the person making the misrepresentation
and what was obtained thereby.”
Nat.

Mortgage,

(quoting

Inc.,

Windsor

(D.Md. 1983)).

197

Assocs.

Superior Bank, F.S.B. v. Tandem

F.Supp.2d
v.

298,

Greenfeld,

313–14
564

(D.Md.

F.Supp.

2000)

273,

280

Mental conditions, such as malice, intent, and

knowledge, may be alleged generally.
9

Fed.R.Civ.P. 9(b).

Fraud

allegations that fail to comply with Rule 9(b) warrant dismissal
under Rule 12(b)(6).
B.

Harrison, 176 F.3d at 783 n.5.

Analysis
1.

MWHL and FLSA (Counts I and II)

The Court will dismiss Counts I and II to the extent that
they seek to recover damages for unpaid overtime claims that
accrued

prior

to

January

29,

2013

because

both

Counts

are

subject to a three-year statute of limitations.
Count I is subject to the statute-of-limitations period set
out in Labor and Employment Section 5-101, which provides that
“[a] civil action at law shall be filed within three years from
the

date

it

accrues

. . . .”

See

also

Orellana

v.

Cienna

Properties, LLC, No. JKB-11-2515, 2012 WL 203421, at *5 (D.Md.
Jan. 23, 2012) (“[T]he statute of limitations for MWHL claims is
three years.”).
Similarly, Section 255(a) of the FLSA provides that a cause
of action must be commenced within three years after the cause
of action accrues if the violation was “willful.”
§ 255 (West 2017).
alleged

violations

plaintiff[’s]

“Because the question of whether defendants’
were

claims”

but

‘willful’
rather

is
an

not

need

to

allege

specific

facts
10

an

element

“anticipat[ion

limitations defense that defendants may raise,”
not

29 U.S.C.

that

of]

of
a

Mr. Rose does

defendants

willfully

violated the FLSA.

Ford v. Karpathoes, Inc., No. ELH-14-0824,

2014 WL 6621997, at *9, (D.Md. Nov. 20, 2014).

As such, the

Court will apply the FLSA’s three-year statute of limitations to
Mr. Rose’s claims.
Additionally,
overtime

pay

under

accrues

the

upon

MWHL
the

or

the

FLSA,

issuance

of

a

the

claim
pay

for

check

immediately following the work period during which the services
were rendered.

Orellana, 2012 WL 203421, at *3 (citing Nealon

v. Stone, 958 F.2d 584, 591 (4th Cir. 1992)).
Mr. Rose argues that all of his claims for overtime wages,
including those stemming from paychecks issued prior to January
29, 2013, are not time-barred because they did not accrue until
he ultimately discovered that he would not be receiving any back
pay upon his termination in October 2015.

Defendants argue all

claims for overtime wages stemming from paychecks issued prior
to January 29, 2013 are barred by the statute of limitations.
The Court agrees with Defendants.
A new cause of action accrues each time the employer issues
a paycheck in violation of the FLSA or MWHL, rather than upon
termination.
Harloe

Orellana, 2012 WL 203421, at *3.

Management

issued

Mr.

Rose

a

Thus, every time

paycheck

that

did

not

include the statutorily prescribed wages, a new cause of action
for Rose’s unpaid wages accrued.
11

Rose filed the Complaint on

January 29, 2016.

Hence, any claims in Counts I and II for

overtime wages from paychecks issued prior to January 29, 2013
are time-barred and will be dismissed.
2.

MWPCL (Count III)

Mr. Rose seeks to recover compensation under the MWPCL for
(1) unpaid accumulated leave, (2) unpaid wages from his final
pay period, and (3) unpaid overtime.

Defendants argue Mr. Rose

cannot recover for unpaid overtime before January 29, 2013, and
that Count III does not sufficiently state a claim because Mr.
Rose cannot accrue leave from year-to-year by the terms of his
leave policy.

The Court agrees with Defendants regarding Mr.

Rose’s claims for unpaid overtime under the MWPCL, but rejects
Defendants’ argument regarding accrual.
a.

Accumulated Leave and Unpaid Wages

To establish a claim for unpaid wages under the MWPCL, a
plaintiff is required to prove that, after termination, he was
not timely paid for wages due.

See Lab. & Empl. § 3–505.1; see

also Admiral Mortgage, Inc. v. Cooper, 745 A.2d 1026, 1029–30
(Md. 2000).

The MWPCL also provides that an employer is not

required to pay accrued leave if the employer has a written
policy limiting compensation of accrued leave and notified the
employee of this policy in accordance with Section 3-504(a)(1).
Md. Code Ann., Lab. & Empl. § 3-505 (West 2017).
12

In relevant

part, Section 3-504(a)(1) provides: “An employer shall give to
each employee . . . at the time of hiring, notice of . . . leave
benefits” (emphasis added).
Mr.

Rose

alleges

that,

at

the

times

of

his

hiring

and

subsequent promotion, he never received any employment documents
outlining his compensation and leave benefits.
He

has

also

asserts

that,

upon

his

(Compl. ¶ 9).2

termination,

he

did

not

receive compensation for this accumulated unused leave and for
the final three days of his employment.
The

Court

concludes

that

these

(Compl. ¶¶ 29, 39).

factual

sufficient to state a claim under the MWPCL.
Randolph

Hills

Nursing

Care,

Inc.,

No.

allegations

are

See Amenyah v.

TDC-15-3062,

2016

WL

3546219, at *6–7 (D.Md. Jun. 23, 2016) (holding allegations that
employers were liable for failing to compensate employees who
accrued sick and vacation leave, and that plaintiffs failed to
receive or understand employee handbook precluding payment for
accrued leave, sufficiently stated a claim under the MWPCL).

2

The Defendants attach copies of the leave policies to
their Memorandum in Support of their Partial Motion to Dismiss.
(Defs.’ Partial Mot. Dismiss Ex. A, ECF No. 10-2). Because Mr.
Rose alleges that he did not receive any written policies, the
Court will not consider them at this stage.
See Am.
Chiropractic Ass’n, Inc. v. Trigon Healthcare Inc., 367 F.3d
212, 234 (4th Cir. 2004) (requiring documents attached to a
motion to dismiss to be “integral to and explicitly relied on in
the complaint” for the court to consider them at the 12(b)(6)
stage).
13

b.

Overtime

Under the MWPCL, the statute of limitations for an unpaid
overtime claim begins to run two weeks after the employee’s
wages

were

due.

Lab.

&

Empl.

§§

3.507.1,

3.507.2;

Admiral

Mortgage, 745 A.2d at 1029–30; see also Higgins v. Food Lion,
Inc., 197 F.Supp.2d 364, 367-68 (D.Md. 2002) (“Because Plaintiff
filed

his

Complaint

on

July

21,

2000,

his

[MWPCL]

claim

is

limited to paychecks that should have been or were issued on
July 7, 1997 or later.”).
Mr.

Rose

alleges

that

he

was

not

paid

for

overtime

he

worked from the start of his employment with Harloe Management
until his termination.

He has further argued that all of his

claims for overtime are timely because they did not accrue until
he discovered he would not be paid for this overtime upon his
termination.

As explained, however, a claim for overtime pay

accrues two weeks after the date the employer should have paid
the wages.

Admiral Mortgage, 745 A.2d at 1029–30.

Thus, to the

extent that Mr. Rose is seeking to recover unpaid overtime which
should have been paid prior to January 15, 2013, Count III is
dismissed.
3.

Unjust Enrichment (Count VI)

Defendants argue Mr. Rose’s unjust enrichment claim should
be dismissed because it does not identify the benefit conferred.
14

The Court disagrees.
Unjust enrichment claims have three elements: that (1) a
benefit was conferred upon the defendants; (2) the defendants
appreciated

or

knew

of

the

benefit;

and

(3)

it

would

be

inequitable for them to retain the benefit without the payment
of its value.

Hill v. Cross Country Settlements, LLC, 936 A.2d

343, 351 (Md. 2007).
In Quickley v. University of Maryland Medical System Corp.,
the

employer

automatically

deducted

thirty

minutes

plaintiff’s pay for a meal break, even though

from

the

the plaintiff

regularly worked during that period.

No. CCB–12–321, 2012 WL

4069757 at *6 (D.Md. Sept. 12, 2014).

The employer, allegedly

aware of employees working during their meal break, did not
provide

a

means

deduction.
uncompensated

for

Id.
work,

employees
In
the

the

to

face

court

object
of

ruled

to

these

this

automatic

allegations

that

sufficiently stated a claim for unjust enrichment.

the

of

plaintiff

Id.

Here, like the plaintiff in Quickley, Mr. Rose alleges that
he worked overtime to fulfill the duties of his position and
that the Defendants did not

compensate

him accordingly.

He

further alleges that the Defendants received a benefit because
he performed the work of what should have been three salaried
employees, so he ultimately saved them from paying two other
15

employees.

While -- unlike the plaintiff in Quickley -- Mr.

Rose alleges he was able to seek compensation for his labor
through contract negotiations with Defendants, the fact remains
that like the plaintiff in Quickley, Mr. Rose never successfully
received compensation.

The Court, therefore, concludes that the

Complaint sufficiently states a claim for unjust enrichment.
4.

Intentional Misrepresentation by Concealment
IX) and Constructive Fraud (Count X)

(Count

The Court concludes Mr. Rose sufficiently states a claim
for intentional misrepresentation by concealment (Count IX) and
constructive fraud (Count X).
To

state

concealment

a

or

claim

for

fraudulent

intentional
concealment,

misrepresentation
the

plaintiff

by
must

sufficiently allege that: “(1) the defendant owed a duty to the
plaintiff to disclose a material fact; (2) the defendant failed
to disclose that fact; (3) the defendant intended to defraud or
deceive

the

plaintiff;

(4)

the

plaintiff

took

action

in

justifiable reliance on the concealment; and (5) the plaintiff
suffered damages as a result of the defendant’s concealment.”
Green v. H & R Block, Inc., 735 A.2d 1039, 1059 (Md. 1999).

As

stated supra, allegations of fraud are subject to the heightened
pleading standard of Rule 9(b).

Harrison, 176 F.3d at 783–784.

16

To establish a claim for constructive fraud, Mr. Rose must
sufficiently show that he suffered damages due to a “breach of a
legal or equitable duty which, irrespective of the moral guilt
of the fraud feasor, the law declares fraudulent because of its
tendency

to

deceive

others,

to

violate

public

or

private

confidence, or to injure public interests.” Canaj, Inc. v. Baker
and Division Phase III, LLC, 893 A.2d 1067, 1095 (Md. 2006)
(internal quotation marks omitted).
For both intentional misrepresentation by concealment and
constructive

fraud,

allege

the

that

therefore,

defendant

a

owed

plaintiff
a

duty

must
to

the

sufficiently
plaintiff.

Defendants argue that as employers, Defendants owed no duty to
Mr. Rose, an employee. The Court disagrees.3
Although “[t]here is no precise formula for determining the
existence of a duty of care between two parties,” a plaintiff
3

In their Reply Brief, Defendants also argue that the
Complaint does not state a claim for constructive fraud because
it is based on Defendants’ alleged promises of future action.
(Reply Mem. Supp. Defs.’ Partial Mot. Dismiss at 7). By failing
to raise and argue this point in their initial Motion,
Defendants waived it. See Sher v. Luxury Mortg. Corp., No. ELH11-3656, 2012 WL 5869303, at *9 n.11 (D.Md. Nov. 19, 2012)
(concluding defendant's argument was waived because defendant
did not raise it until reply brief); see also Marshall v. James
B. Nutter & Co., 816 F.Supp.2d 259, 264 (D.Md. 2011) (“This
Court has previously held that ‘the ordinary rule in federal
courts is that an argument raised for the first time in a reply
brief or memorandum will not be considered.’” (quoting Clawson
v. FedEx Ground Package Sys., Inc., 451 F.Supp.2d 731, 735
(D.Md. 2006))).
17

who claims economic loss from misrepresentation must show an
“intimate nexus” between the two parties.

Griesi v. Atl. Gen.

Hosp. Corp., 756 A.2d 548, 554 (Md. 2000).

Maryland courts have

found an intimate nexus between parties who have contemplated a
long-term relationship.
extensive

See id. (holding that facts alleging

pre-contractual

employment

negotiations

establishes

that an intimate nexus was formed); Weisman v. Connors, 540 A.2d
783, 793–94 (Md. 1988) (concluding that two executives engaged
in

pre-contractual

long-term

employment

negotiations

sufficiently established an intimate nexus).
Courts have also considered whether the party making the
alleged misrepresentation “had exclusive control over material
information necessary for [the other party] to understand the
situation.”

Odyssey Travel Ctr., Inc. v. RO Cruises, Inc., 262

F.Supp.2d 618, 628 (D.Md. 2003); see also Griesi, 756 A.2d at
556 (weighing heavily the fact that the prospective employer
maintained exclusive control over vital job information in its
determination that an intimate nexus existed).
Mr. Rose alleges that he worked for and with the Defendants
for nearly twenty-nine years, and that on numerous occasions,
the parties discussed the potential of Mr. Rose becoming a part
owner

in

Harloe

Management.

Over

that

time

and

at

various

meetings, he avers that the Harloes referred to and held him out
18

as a business partner.
maintained

a

close

In addition, Mr. Rose alleges that he

personal

relationship

with

Mr.

and

Mrs.

Harloe, citing various conversations at Mr. Harloe’s funeral and
other personal conversations with Mrs. Harloe after Mr. Harloe’s
death.

What

Corporation
control

and

over

received.

is

the

more,
Diana

like

the

Harloe,

employment

defendant

as

the

Griesi,

owner,

information

See 756 A.2d at 556.

in

and

had

Harloe

exclusive

benefits

to

be

Mr. Rose has sufficiently

alleged that an intimate nexus existed between the two parties
such that a legal duty was owed.
Rose

sufficiently

misrepresentation

by

states

Thus, the Court concludes Mr.
a

concealment

claim
(Count

IX)

for
and

intentional
constructive

fraud (Count X).
III. CONCLUSION
For the foregoing reasons, the Court will GRANT in part and
DENY in part Defendants’ Partial Motion to Dismiss (ECF No. 10).
The Court will DISMISS Counts I and II to the extent Mr. Rose
seeks overtime wages from paychecks issued prior to January 29,
2013.

The Court will DISMISS Count III insofar as Mr. Rose

seeks overtime wages that should have been paid prior to January
15, 2013.

A separate order follows.

19

Entered this 17th day of January, 2017.
/s/
George L. Russell, III
United States District Judge

20