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Pettinato v. Professional Parent Care

United States District Court, E.D. Michigan, Southern Division

May 8, 2018

ALLISON PETTINATO, Plaintiff,
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]

          GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.

         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 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 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. LAW & ANALYSIS

         A. 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 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 March 2018 deposition as argued by Defendants.

         B. ...


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