Church v. Home Fashions International, LLC

Filing 36

ORDER cancelling the Final Pretrial Conference and trial. Ordering that Plaintiffs shall file a Notice with the Court, supported by affidavit of counsel on or before 8/8/12. Signed by Magistrate Judge David Keesler on 7/30/12. (smj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:10-CV-133-DCK
KEN E. CHURCH and
KEN E. CHURCH ENTERPRISES, LLC,
Plaintiffs,
v.
HOME FASHIONS INTERNATIONAL, LLC
Defendant.
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ORDER

THIS MATTER IS BEFORE THE COURT sua sponte regarding scheduling and
Plaintiffs’ “Notice Of Voluntary Dismissal Of Claim For Commissions” (Document No. 35). The
parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c), and
immediate review of these issues is appropriate.
On July 19, 2012, the undersigned issued an “Order” (Document No. 34) denying
Defendant’s “Notice Of Motion [For Summary Judgment]” (Document No. 27), and granting in part
and denying in part “Plaintiffs’ Motion For Summary Judgment” (Document No. 28). The Court
specifically determined that the uncontroverted facts supported a finding that Plaintiff Ken E.
Church’s employment with Defendant was covered by the North Carolina Wage and Hour Act, and
that the parties had a contract for guaranteed compensation for 18 months that was breached by
Defendant. (Document No. 34). The undersigned concluded that “[a]t minimum, Defendant is
liable to Plaintiff for the six (6) months of guaranteed compensation of $11,000.00 per month it
failed to pay Plaintiff. Id.
However, the Court also found that Plaintiffs had failed to provide sufficient and undisputed
evidence that would allow this Court to conclude that Plaintiff was entitled to an award of

commissions. Id. The Court held that whether Plaintiff hired “key account executives” pursuant
to the Agreement, and if so, whether Plaintiff is owed any commission payments based on either
Plaintiff’s or the key account executives’ sales activity for Defendant, was an issue of fact that
would be decided by a jury at a trial beginning on August 6, 2012. Id. The Court further stated that
“[a]t trial, if one is ultimately required, the Court will hear arguments regarding the issue of
commissions, and will further consider Plaintiffs’ requests for liquidated damages and attorney’s
fees.” Id.
On July 27, 2012, Plaintiffs filed the instant “Notice Of Voluntary Dismissal Of Claim For
Commissions” (Document No. 35). Pursuant to that Notice, Plaintiffs have voluntarily dismissed
their claims to any commissions. (Document No. 35). As such, the undersigned finds that there is
no longer an issue of fact in this case to be determined by a jury.
IT IS, THEREFORE, ORDERED that the Final Pretrial Conference scheduled for July
31, 2012 is CANCELLED.
IT IS FURTHER ORDERED that the trial scheduled to begin on August 6, 2012 is
CANCELLED.
IT IS FURTHER ORDERED that Plaintiffs shall file a Notice with the Court, supported
by an affidavit of counsel, on or before August 8, 2012, outlining in detail: (1) the costs and fees
of this action and the reasonable attorneys’ fees Plaintiffs contend they incurred and are entitled to
recover under N.C.Gen.Stat. § 95-25.22; (2) and all other damages and/or interest in this matter they
contend they are entitled to recover pursuant to the Court’s “Order” (Document No. 34) and
N.C.Gen.Stat. § 95-25.22.
SO ORDERED.

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Signed: July 30, 2012

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