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
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