United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PLAINTIFF'S MOTION TO DISMISS [#35]
AND GRANTING MOTIONS TO WITHDRAW [#37, 41]
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.
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. 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 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.
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
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.
Complaint raises allegations of discrimination, retaliation
and 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
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
LAW & ANALYSIS
Motion for Dismissal
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
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
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.
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 March 2018 deposition as argued by