Pettinato v. Professional Parent Care et al
Filing
47
ORDER DENYING PLAINTIFFS MOTION TO DISMISS [#35] AND GRANTING MOTIONS TO WITHDRAW [#37, 41]. Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALLISON PETTINATO,
Plaintiff,
Case No.: 16-cv-14419
Honorable Gershwin A. Drain
v.
PROFESSIONAL PARENT CARE, a
Michigan Corporation, et al.,
Defendants.
___________________________/
ORDER DENYING PLAINTIFF’S MOTION TO DISMISS [#35] AND
GRANTING MOTIONS TO WITHDRAW [#37, 41]
I. INTRODUCTION
Presently before the Court is the Plaintiff Allison Pettinato’s Motion for
Dismissal of both counts of Defendants Professional Parent Care’s and Sanford
Linden’s Counterclaim, filed on March 15, 2018. 1 Defendants’ filed a Response in
Opposition on April 5, 2018.
Also before the Court is counsel’s Motion to
Withdraw for Defendants Professional Parent Care, Inc. (“PPC”) and Sanford
Linden and for Stay of Proceedings, filed on March 26, 2018. Additionally, Laura
Brodeur-McGeorge has also filed a Motion to Withdraw as Counsel, filed on April
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Plaintiff failed to seek concurrence before filing the instant motion in violation of
E.D. Mich. L.R. 7.1(a).
6, 2018. Plaintiff has failed to file a Response to the pending motions to withdraw,
and the time for doing so has passed. See E.D. Mich. L.R. 7.1(e)(2). On May 2,
2018, counsel submitted a Stipulation and Consent for Substitution of Attorneys
indicating that counsel stipulates and consents to the substitution of Bogas &
Konscius, P.C. as attorneys for PPC and Linden. See Dkt. No. 43. On May 3,
2018, Kathleen L. Bogas and Brian E. Koncius filed their appearances on behalf of
these Defendants. See Dkt. Nos. 44 and 45.
Upon review of the parties’ filings, the Court concludes that oral argument
will not aid in the resolution of these matters. Accordingly, the Court will resolve
the instant motions on the briefs and cancels the hearing. See E.D. Mich. L.R.
7.1(f)(2). For the reasons that follow, the Court will deny Plaintiff’s Motion for
Dismissal, and will grant both Motions to Withdraw.
However, because
Defendants have obtained substituted counsel, their request for a stay of the instant
proceedings is unwarranted and will be denied.
II.
FACTUAL BACKGROUND
The facts giving rise to the instant matter have been set forth in previous
orders. See Dkt. Nos. 18, 33. Thus, the Court will only discuss the facts necessary
for resolution of the motions presently before it.
Plaintiff’s Complaint raises allegations of discrimination, retaliation and
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hostile work environment under Title VII and the Elliot Larson Civil Rights Act
stemming from her employment as a caregiver at Defendant Professional Parent
Care (“PPC”). Defendant Sanford Linden is the owner of PPC. Plaintiff maintains
that she was assigned as a caregiver to Defendant Morris Huppert, who she alleges
sexually assaulted and harassed her during her work shifts at his home. When she
complained to PPC and Linden, she was constructively discharged.
On December 1, 2017, Defendants filed a Motion for Leave to Amend
Answer Adding Counterclaim.
Defendants sought to add a Counterclaim for
violation of Michigan statutory law, MICH. COMP. LAWS § 750.539 et seq., based on
Plaintiff’s secret video recording of Huppert during her work shift and of a
conversation she had with Linden and another PPC employee. The Court granted
Defendants’ Motion on February 20, 2018. In granting the motion, the Court
wholly rejected the arguments Plaintiff raised in her opposition brief to Defendants’
Motion for Leave to Amend.
III.
A.
LAW & ANALYSIS
Motion for Dismissal
In her present motion, Plaintiff asserts that Defendants’ Counterclaim should
be dismissed. However, Plaintiff merely reasserts the same arguments that have
already been considered and rejected by this Court in its Order Granting
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Defendants’ Motion for Leave to Amend Adding Counterclaim. Plaintiff’s recent
filing fails to advance any new arguments in support of her contention that
Defendants’ Counterclaim is without merit, nor does she provide any new case law
in support of her frivolous motion. As such, her present motion is really an
untimely, as well as unmeritorious motion for reconsideration and is due to be
denied.
Plaintiff continues to rely on Dickerson v. Raphael, 222 Mich. App. 185,
188; 564 N.W.2d 85 (1997), which has no applicability to the video recordings at
issue here.
Dickerson concerned a secret audio recording, transmission and
broadcast of conversations between a woman and her children. Additionally, in
Lewis v. LeGrow, 258 Mich. App. 175; 670 N.W.2d 675 (2003), the Michigan
Court of Appeals held that MICH. COMP. LAWS § 750.539 et seq. properly prohibits
secret videotaping of a third party as invasive of individual privacy.
Here, Defendants’ Counterclaim concerns Plaintiff’s secret video recording
of Linden and another PPC employee in a private office, as well as of Huppert in
his home.
Plaintiff’s case law fails to support her position that dismissal is
warranted. Because Plaintiff fails to advance any authority actually supportive of
her position, the Court declines to determine at this juncture whether an adverse
inference should be drawn regarding her invocation of the Fifth Amendment at her
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March 2018 deposition as argued by Defendants.
B.
Motions to Withdraw
Defendants’ primary counsel, Sue Ellen Eisenberg and Kerry Cahill
(hereinafter the “Eisenberg firm”), seek to withdraw from representing the
Defendants because Defendants have not paid their outstanding balance since
October of 2017. Moreover, the Eisenberg firm asserts that it has recently become
apparent that Defendants have no intention of paying their outstanding balance nor
do they possess the resources to pay their attorneys moving forward.
The Court has discretion to grant leave to withdraw as counsel. United States
v. Mack, 258 F.3d 548, 555-56 (6th Cir. 2001).
Michigan law recognizes a
lawyer’s right to withdraw if a client fails to pay the lawyer’s fees and expenses.
Michigan Rule of Professional Responsibility 1.16(b)(4) and (5) states:
(b) Except as stated in paragraph (c), a lawyer may withdraw from
representing a client if withdrawal can be accomplished without
material adverse effect on the interests of the client, or if:
(4) the client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer’s services and has been given reasonable warning
that the lawyer will withdraw unless the obligation is fulfilled;
(5) the representation will result in an unreasonable financial burden
on the lawyer or has been rendered unreasonably difficult by the client.
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Here, Defendants represented to the Eisenberg firm that payment would be received
early this year. However, counsel has yet to receive any payment toward the
outstanding balance. In March of this year, the Eisenberg firm notified Defendants
that if payment was not received, counsel would be forced to withdraw from
representation.
The Eisenberg firm also asserts that in addition to the unreasonable financial
burden posed by Defendants’ failure to remit payment for six months; Defendants
will not be prejudiced by the withdrawal. Discovery is nearly complete, with only
several of Plaintiff’s noticed depositions outstanding. Moreover, substitute counsel
has already filed notices of appearance in the instant matter.
Additionally, Laura Brodeur-McGeorge has moved to withdraw from
representing the Defendants, who was of-counsel to the Eisenberg firm when she
filed her notice of appearance in this matter. However, on February 28, 2018, Ms.
Brodeur-McGeorge left her position with the Eisenberg firm and has no present
attorney-client relationship with Defendants.
Based on the foregoing, the Eisenberg firm and Attorney Brodeur-McGeorge
will be permitted to withdraw from representing Defendants PPC and Linden in
these proceedings.
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IV.
CONCLUSION
Accordingly, for the reasons articulated above, Plaintiff’s Motion for
Dismissal [#35] is DENIED and Defendants’ Motions to Withdraw [#37] [#41] are
GRANTED.
SO ORDERED.
Dated: May 8, 2018
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 8, 2018, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk
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