Prescott v. Morgreen Solar Solutions, LLC

352 F. Supp. 3d 529
CourtDistrict Court, E.D. North Carolina
DecidedNovember 29, 2018
DocketNO. 5:17-CV-365-FL
StatusPublished
Cited by13 cases

This text of 352 F. Supp. 3d 529 (Prescott v. Morgreen Solar Solutions, LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prescott v. Morgreen Solar Solutions, LLC, 352 F. Supp. 3d 529 (E.D.N.C. 2018).

Opinion

LOUISE W. FLANAGAN, United States District Judge *532This matter is before the court on cross-claimant Vaughn Industries, LLC's ("Vaughn") motion for entry of default against cross-defendants MorGreen Solar Solutions, LLC ("MorGreen") and Darrin Green ("Green") (collectively, "MorGreen defendants"), (DE 39), and MorGreen defendants' motion to set aside order on plaintiffs' motion for entry of default, (DE 57). Also pending are plaintiffs' and cross-claimant Vaughn's motions to strike MorGreen defendants' answer, (DE 54, DE 59). For the following reasons, the court grants cross-claimant Vaughn's motion for entry of default, denies MorGreen defendants' motion to set aside order on motion for entry of default, and grants plaintiffs' and cross-claimant Vaughn's motions to strike MorGreen defendants' answer.

STATEMENT OF THE CASE

Plaintiffs filed complaint in this court July 21, 2017, claiming defendants misclassified them as independent contractors, willfully failed to remit compensation for all hours worked, willfully failed to remit required overtime pay, and violated statutory record-keeping requirements. Count one alleges violations of the Fair Labor Standards Act, 29 U.S.C. §§ 206, 207 ("FLSA"), and plaintiffs proceed on that claim in the posture of a proposed FLSA collective action. See 29 U.S.C. § 216(b). Count two alleges violations of the North Carolina Wage and Hour Act, N.C. Gen. Stat. §§ 95-25.6, .7, & .13, and plaintiffs proceed on that claim in the posture of a putative class under Federal Rule of Civil Procedure 23.

Summons was issued as to all defendants, and as relevant here, service of process of plaintiffs' summons and complaint was made on defendant Green on August 2, 2017, (DE 7), and defendant MorGreen by and through defendant Green on August 24, 2017, (DE 15).

Cross-claimant Vaughn answered plaintiffs' complaint September 28, 2017, and initiated cross-claims against MorGreen defendants as well as counterclaims against opt-in plaintiff John Crisco, "who was employed as the Chief Procurement Officer, a Project Manager, and a Field Supervisor" for defendant MorGreen, asserting against all parties claims for breach of contract, contribution, and indemnification. (DE 17 at 19).

No answer having been filed by MorGreen defendants, on January 26, 2018, plaintiffs moved for entry of default against MorGreen defendants, which was granted on March 16, 2018 by the clerk of the court. (DE 27, DE 44). On March 15, 2018, cross-claimant Vaughn filed the instant motion for entry of default on its cross-claims against MorGreen defendants. (DE 39). On March 26, 2018, plaintiff filed motion for default judgment. (DE 46).1

During this time period, on March 14, 2018, MorGreen defendants' attorney filed *533notice of appearance. (DE 34). Without seeking leave of the court, on April 12, 2018, MorGreen defendants filed answer to complaint, asserting 19 affirmative defenses as well as asserting counterclaims against opt-in plaintiffs John Crisco and Kira Crisco ("Criscos"), the latter of whom was previously employed as office manager of defendant MorGreen and is the spouse of John Crisco. (DE 52 at 17, 23). MorGreen defendants bring the following counterclaims against the Criscos: tortious interference with a contract, tortious interference with prospective economic relations, conversion, indemnification, and contribution. (See id. )

Also during this period, on April 17, 2018, the court granted plaintiffs and cross-claimant Vaughn's joint motion for settlement approval, resolving all claims as to those parties, finding that "the settlements followed extensive investigation and negotiation, and was the result of a formal mediation involving vigorous arm's-length settlement discussions and the assistance of an experienced mediator." (DE 56 at 2). The court "dismisse[d] all claims of Plaintiffs who submitted individually executed settlement agreements in this matter, as they relate to Defendant Vaughn only, based on or arising out of any acts, facts, transactions, occurrences, representations or omissions alleged in the Complaint in this matter on the merits and with prejudice and without costs to any of the parties as against any other settling party, except as provided in the parties' mediation agreement and individually-executed settlement agreements." (Id. at 5).

Both plaintiffs and cross-claimant Vaughn filed the instant motions to strike MorGreen defendants' answer on April 16, 2018 and April 20, 2018, respectively. (DE 54, DE 59). MorGreen defendants did not file response to the motions to strike, but on April 17, 2018, filed the instant motion to set aside order on motion for entry of default, offering unverified statement that "[d]efendants had consulted with several law firms, none of which were willing and/or able to take them on as clients. Defendants filed an answer with the Court on April 12, 2018, which was as early as they could possibly find counsel." (DE 58 ¶¶ 2-3).

On August 27, 2018, the court issued order, holding the instant motion for default judgment, motions to strike, and motion to set aside entry of default, as well as plaintiffs' motion for entry of default judgment, in abeyance pending further briefing, directing MorGreen defendants to submit further information to the court. More specifically, the court directed MorGreen defendants to file sworn affidavit(s) attesting to the following:

1. The date on which MorGreen defendants contacted any lawyer in furtherance of securing representation in this matter and the corresponding date of response of that lawyer or his or her firm to any request for representation (MorGreen defendants need not identify any lawyer or firm by name, but may refer to each by unique identifier such as lawyer or firm 1, lawyer or firm 2, and so on);
2. What the response was, i.e. was there willingness to represent MorGreen defendants specified upon their satisfaction of financial or other or additional terms by a date certain, and if so identify
a) Generally the performance term(s) stated on which said agreement to undertake representation rested;
b) MorGreen defendants' performance deadline; and
c) Whether MorGreen defendants timely satisfied stated performance *534obligation(s) on which agreement to undertake representation rested; and
3.

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Bluebook (online)
352 F. Supp. 3d 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prescott-v-morgreen-solar-solutions-llc-nced-2018.