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Carollo v. Federal Debt Assistance Association, LLC

United States District Court, D. Maryland

September 25, 2017

ELIZABETH CAROLLO, et al., Plaintiffs,
v.
FEDERAL DEBT ASSISTANCE ASSOCIATION, LLC, et al., Defendants.

          MEMORANDUM OPINION

          Richard D. Bennett, United States District Judge

         Plaintiffs Elizabeth Carollo, Russell Sutton, and Michael William Johnson (“Plaintiffs”) have filed this action against defendants Federal Debt Assistance Association, LLC (“FDAA”), Vincent Piccione, David Piccione, Robert Pantoulis, Nicholas Pantoulis, and Anne Marie Diaz (collectively, “Defendants”). In Count I, Plaintiffs allege that all defendants failed to pay wages in violation the Maryland Wage Payment and Collection Law (“MWPCL”), Md. Code, Lab. & Empl., §§ 3-501 et seq. In Count II, Plaintiffs allege that all Defendants failed to pay wages in violation of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201 et seq. In Count III, Plaintiffs allege that Defendant FDAA breached contracts with Plaintiffs by refusing in bad faith to pay wages to Plaintiffs. In Count IV, Plaintiff Johnson alleges that Defendant David Piccione assaulted him in relation to the ongoing wage dispute. In Count V, Plaintiff Johnson alleges that Defendant David Piccione also battered him.

         On or about March 30, 2017, Plaintiffs filed the original Complaint in the Circuit Court for Baltimore County, Maryland. On May 3, 2017, Defendant FDAA removed the case to this Court pursuant to federal question jurisdiction under 28 U.S.C. §§ 1331 and 1441. On May 10, 2017, Defendants FDAA, Robert Pantoulis, and Vincent Piccione filed Motions to Dismiss. (ECF Nos. 6, 7.) On May 11, 2017, Defendants Anne Marie Diaz, Nicholas Pantoulis, and David Piccione also filed a Motion to Dismiss. (ECF No. 10.) After Plaintiffs filed an Amended Complaint on May 24, 2017 (ECF No. 12), Defendants filed Motions to Dismiss Plaintiffs' Amended Complaint (ECF Nos. 14-16). Pending before this Court are the initial Motions to Dismiss (ECF Nos. 6, 7, 10) along with the Motions to Dismiss Plaintiffs' Amended Complaint (ECF Nos. 14-16). The individual Defendants assert that the Amended Complaint fails to show that they are “employer[s]” subject to suit under either the MWPCL or FLSA, and all Motions to Dismiss taken together challenge the factual sufficiency of each count in the Amended Complaint.

         The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, the initial Motions to Dismiss (ECF Nos. 6, 7, 10) are DENIED as MOOT. The Motion to Dismiss Plaintiffs' Amended Complaint by Anne Marie Diaz, Nicholas Pantoulis, and David Piccione (ECF No. 14) is GRANTED IN PART and DENIED IN PART. Specifically, it is GRANTED as to all counts against Anne Marie Diaz and Nicholas Pantoulis, and it is DENIED as to all counts against David Piccione. The FDAA's second Motion to Dismiss (ECF No. 15) is DENIED. The Motion to Dismiss Plaintiffs' Amended Complaint by Robert Pantoulis and Vincent Piccione (ECF No. 16) is DENIED. Accordingly, the case shall proceed as to Defendants Federal Debt Assistance Association, LCC (“FDAA”), Vincent Piccione, David Piccione, and Robert Pantoulis.

         BACKGROUND

         In ruling on a motion to dismiss, this Court “accept[s] as true all well-pleaded facts in [the] [C]omplaint and construe[s] them in the light most favorable to the plaintiff.” Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017). The Plaintiffs in this case worked as salespersons for FDAA in Baltimore. (Am. Compl. ¶ 2, ECF No. 12.) Pursuant to their compensation agreements, Plaintiffs were to be paid “a base salary of $1[, ]250.00 plus 5% or 10% commissions for customers for which they sold services (depending if they were a floor ‘leader' that month), and ‘residuals' for additional payments made by customers brought in by them.” (Id. ¶ 16.) Defendants have allegedly failed to pay Plaintiff Carollo at least $12, 233.00 for “work performed and completed” during January and February 2017. (Id. ¶ 17.) Defendants have allegedly failed to pay Plaintiff Sutton at least $16, 810.00 for “work performed and completed” during December 2016 and January 2017. (Id. ¶ 18.) Defendants have also allegedly failed to pay plaintiff Johnson at least $15, 000.00 for “work performed and completed” during November 2016, December 2016, and January 2017. (Id. ¶ 19.)

         Four of the five individual Defendants, Vincent Piccione, David Piccione, Robert Pantoulis, and Nicholas Pantoulis, are “owners and operators of FDAA.” (Id. ¶ 2.) Three of the four “owners and operators, ” Vincent Piccione, David Piccione, and Robert Pantoulis, “worked at FDAA on a daily basis and authorized the payment of wages” during the time of Plaintiffs' employment. (Id.) These three Defendants had the power to hire, fire, or discipline the Plaintiffs; “set the rate and method of compensation”; manage the Plaintiffs' work duties and schedules; and “maintain[] or cause[] to be maintained all employment records relating to Plaintiffs.” Id. More specifically, Defendant David Piccione “was the owner with primary responsibility in determining payroll.” (Id. ¶ 3.) When Plaintiff Sutton complained about unpaid wages, Defendants David Piccione and Vincent Piccione told Sutton they would not pay him “anything.” (Id. ¶ 4.) David Piccione added that FDAA was not paying because Sutton allegedly “relapsed.” Id. Defendants David Piccione and Vincent Piccione also refused to pay Plaintiff Carollo's unpaid wages. (Id. ¶ 6.) Vincent Piccione subsequently sent Carollo “a text threatening to pursue a theft charge against her if she pursued a wage claim.” (Id.) Defendant Robert Pantoulis “signed [p]laintiffs' paychecks.” (Id. ¶ 3.) When Plaintiff Carollo asked Robert Pantoulis about her wages, Robert Pantoulis said, “my name is at the bottom of the check and I can decide whether to pay you or not.” (Id. ¶ 5.)

         Defendant Nicholas Pantoulis told plaintiff Carollo on three occasions that he would make sure that she was paid her wages by February 28, 2017, but he did not respond to Carollo when she tried to contact him a fourth time on the matter. (Id. ¶ 6.)

         Defendant Diaz is the CFO of FDAA whose duties include in part the calculation and payment of wages. (Id. ¶ 7.) Diaz refused to pay the unpaid wages when requested by the Plaintiffs. (Id.)

         On or around March 15, 2017, Plaintiff Johnson went to the FDAA offices to get his paycheck because the defendants had not returned his phone calls regarding unpaid wages. (Id. ¶ 21.) “Defendant David Piccione said that Defendants were not going to pay Johnson because Johnson was part of a lawsuit, which he was not at the time. When Johnson turned to leave, Defendant David Piccione became angry because he believed that Johnson was being verbally disrespectful to him.” (Id.) Defendant David Piccione then tackled Johnson to the ground.

         STANDARD OF REVIEW

         Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006); see also Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). The sufficiency of a complaint is assessed by reference to the pleading requirements of Rule 8(a)(2), which provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         To survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl., Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). Under the plausibility standard, a complaint must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013).

         In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual allegations contained in the complaint” and must “draw all reasonable inferences [from those facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015). While a court must accept as true all the factual allegations contained in the complaint, legal conclusions drawn from those facts are not afforded such deference. Iqbal, 556 U.S. at 678 (stating that ...


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