Leschak v. Raiseworks, Llc et alMOTION to Dismiss . DocumentS.D.N.Y.April 15, 2015Case r.l4-cv-08072-FM Document 39 Filed 04/15/15 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JEANELESCHAK, Plaintiff, v. RAISEWORKS, LLC, RAISECO HOLDINGS, LLC, GARY CHODES, and GEOFF MILLER, Defendants. > Case No. 14-cv-8072 (PKC) (FM) (ECF CASE) J NOTICE OF MOTION PLEASE TAKE NOTICE, upon the Affirmation of Laura-Michelle Horgan, Esq., dated April 15, 2015, and exhibits attached thereto; and upon the Memorandum of Law in Support of Defendants' Motion to Dismiss Plaintiffs Complaint; and the pleadings and proceedings heretofore had herein. Defendants Raiseworks, LLC ("Raiseworks"), Raiseco Holdings, LLC ("Raiseco"), Gary Chodes ("Chodes"), and Geoff Miller ^Miller") (collectively, "Defendants,r) will move this Court before the Honorable Judge Frank Maas, United States Magistrate Judge at United States Courthouse located at 500 Pearl St., New York, NY 10007-1312, on a date and at a time designated by the Court or as soon as counsel may be heard for an Order granting Defendants' Motion to dismiss Plaintiffs Second Amended Complaint for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6), and for such other and further relief that this Court may deem just and proper. Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 1 of 31 Case l:14~cv-08072-FM Document 39 Filed 04/15/15 Page 2 of 3 PLEASE TAKE FURTHER NOTICE, that pursuant to Stipulation and Order filed by the Court on April 7, 20 1 5, any opposing affidavits and answering memoranda shall be served on or before May 6, 2015, and Defendants' reply papers shall be due on or before May 13, 2015. Dated: Rye, New York April 15, 2015 By: Dorf & Nelson LLP 7l -/I ILL/L f'Ui TO: Robert L. Levy, Esq. Bantle & Levy LLP 817 Broadway New York, NY 10003 212.228.9666 Fax: 212.228.7654 Email: levy@civilrightsfirm.com Attorneyfor PlaintiffJeane Leschak Christopher Alan Macey, Jr., Esq Bell & Bell LLP 1617 John F. Kennedy Blvd., Suite 1020 Philadelphia, PA 19103 (215) 569-2500 Fax: (215) 569-2220 Email: cliristonhermacev@bellandbelllaw.com Attorneyfor PlaintiffJeane Leschak -Jonathan B. Nelson, Esq. J Laura-Michelle Horgan, Esq. 555 Theodore Fremd Avenue Rye, New York 10580 Tel.: (914) 381-7600 Fax: (914) 381-7608 inelson@/dorflaw. com lhorgan@,dorflaw. com Attorneysfor Defendants Raiseworks, LLC, Raiseco Holdings, LLC, Gaiy Chodes and GeoffMiller Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 2 of 31 Case l:14-cv-08072-FM Document 39 Filed 04/15/15 Page 3 of 3 James Alfred Bell, Esq. Bell & Bell LLP 1617 John F. Kennedy Blvd., Suite 1020 Philadelphia, PA 19103 (215) 569-2500 Fax: (215) 569-2220 Email: iamesbell@bellandbelllaw.com Attorneyfor PlaintiffJeane Leschak Jennifer Calabrese Bell, Esq. Bell & Bell LLP 1617 John F. Kennedy Blvd., Suite 1020 Philadelphia, PA 19103 (215) 569-2500 Fax: (215) 569-2220 Email: ienniferbell@bellandbelllaw.com Attorneyfor PlaintiffJeane Leschak Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 3 of 31 Case l:14-cv-08072-FM Documents Filed 04/15/15 Page lot 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JEANE LESCHAK, Plaintiff, v. RAISEWORKS, LLC, RAISECO HOLDINGS, LLC, GARY CHODES, and GEOFF MILLER, Defendants. > J Case No. 14-cv-8072 (PKC) (FM) (EOF CASE) AFFIRMATION IN SUPPORT LAURA-MICHELLE HORGAN, an attorney duly admitted to practice law before this Court and the courts of the State ofNew York, hereby deposes and says: 1. I am an associate at Dorf & Nelson LLP, counsel for Raiseworks, LLC ("Raiseworks"), Raiseco Holdings, LLC ("Raiseco"), Gary Chodes ("Chodes"), and Geoff Miller ("Miller") (collectively, "Defendants") herein, and as such I am fully familiar with the facts and circumstances of the within action. 2. I submit this Affirmation in support of Defendants' motion to dismiss Plaintiff's Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and such other and further relief that the Court may deem proper. 3. A true and correct copy of Plaintiff's Second Amended Complaint, filed on November 13, 2014, ECF Doc. No. 15, is annexed hereto as Exhibit "A." 4. A fully executed copy of the offer of employment from Diane Westerback at Raiseworks to Leschak dated May 12, 2014, hereinafter the "Offer Letter," is annexed hereto as Exhibit 'B.: Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 4 of 31 Case l:14-cv-08072-FM Document 41 Filed 04/15/15 Page 2 of 2 5. A true and correct copy of an Order of the Honorable Frank Maas, United States Magistrate Judge, dated March 11, 2015, ECF Doc. No. 35, is annexed hereto as Exhibit "C" 6. For the reasons set forth herein, as well as in Defendants' Memorandum ofLaw in Support ofTheir Motion to Dismiss, Defendants' motion should be granted in its entirety. WHEREFORE, Defendants respectfully request that this Court grant their motion to dismiss Plaintiffs Second Amended Complaint, and any such other and further relief that the Court may deem just and proper. DATED; Rye, New York ^ April 15, 2015 * / //i - LAURA-MICHELLE HORGAN Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 5 of 31 Case l:14-cv-08072-FM Document 42 Filed 04/15/15 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JEANELESCHAK, v. Plaintiff, RAISEWORKS, LLC, RAISECO HOLDINGS, LLC, GARY CHODES, and GEOFF MILLER, Defendants. > Case No. 14-cv-8072 (PKC) (FM) (ECF CASE) J CERTIFICATE OF SERVICE STATE OF NEW YORK ss.: COUNTY OF WESTCHESTER Laura-Michelle Horgan, Esq., an attorney admitted to the practice of law before the various Courts of the State of New York, hereby affirms, pursuant to the F.R.C.P. under penalty of perjury, the following to be true: On April 15, 2015, deponent served the following documents to the attorneys/parties in this action via ECF: 1) Notice ofMotion 2) Affirmation in Support and exhibits attached thereto; 3) Memorandum of Law in Support of Defendants' Motion to Dismiss Plaintiffs Complaint. [CONTINUED ON NEXT PAGE] Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 6 of 31 Case l:14-cv-08072-FM Document 42 Filed 04/15/15 Page 2 of 2 TO: Robert L. Levy, Esq. Bantle & Levy LLP 817 Broadway New York, NY 10003 212.228.9666 Fax: 212.228.7654 Email: levy@civilrightsfirm.com Attorneyfor PlaintiffJeane Leschak Christopher Alan Macey, Jr., Esq Bell & Bell LLP 1617 John F. Kennedy Blvd., Suite 1020 Philadelphia, PA 19103 (215) 569-2500 Fax: (215) 569-2220 Email: christophermacev@bellandbelllaw.com Attorneyfor PlaintiffJeane Leschak James Alfred Bell, Esq. Bell & Bell LLP 1617 JohnF. Kennedy Blvd., Suite 1020 Philadelphia, PA 19103 (215) 569-2500 Fax: (215) 569-2220 Email: iamesbell@beHandbelllaw.com Attorneyfor PlaintiffJeane Leschak Jennifer Calabrese Bell, Esq. Bell & Bell LLP 1617 JohnF. Kennedy Blvd., Suite 1020 Philadelphia, PA 19103 (215) 569-2500 Fax: (215) 569-2220 Email: ienniferbell@bellandbelllaw.com Attorneyfor PlaintiffJeane Leschak DATED: Rye, New York April 15, 2015 (LU.H * AURA-MICHELLE HORGAN Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 7 of 31 Exhibit A Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 8 of 31 ggaeol 1 1 mew&mmpm oaiocianea&Magl RtlMm^BStES Ra@@eLLlD(6fLfi6 Robert L. Levy (RL- 1 633) BANTLE& LEVY LLP 817 Broadway New York, New York 10003 (212) 228-9666 -and- James A. Bell IV Jennifer C. Bell Christopher A. Macey Bell & Bell LLP* One Penn Center - Suite 1020 1617 John F. Kennedy Blvd. Philadelphia, PA 19103 (215) 569-2500 Attorneysfor Plaintiff Admitted Pro Hac Vice UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x JEANE LESCHAK, Plaintiff, 14 Civ. 08072 ECF Case - against - RAISEWORKS, LLC, RAISECO HOLDINGS, LLC, SECOND AMENDED GARY CHODES and GEOFF MILLER COMPLAINT AND JURY DEMAND Defendants. Plaintiff Jeane Leschak, by and through her attorneys, as and for her Second Amended Complaint against Defendants Raiseworks, LLC, Raiseco Holdings, LLC, Gary Chodes and Geoff Miller, alleges as follows: Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 9 of 31 11 EmncnnHatimSl RHMm42£SI£5 m^22c&fm NATURE OF THE ACTION 1. This is an action for an award of damages, liquidated damages, attorneys5 fees and other relief on behalf ofPlaintiff Jeane Leschak ("Ms. Leschak55), a former employee of Raiseworks, LLC and Raiseco Holdings, LLC (collectively "Raiseworks"), Chief Executive Officer Gary Chodes ("Mr. Chodes") and Geoff Miller ("Mr. Miller"), among others. Ms. Leschak has been harmed by Defendants' breaches of contract and by Defendants' reffisal to pay wages and benefits due to her, including bonus, severance, vacation pay, benefits and other payments. This action arises under the New York Labor Law, § 160 et seq.. and the common law of the State ofNew York. JURISDICTION AND VENUE 2. This Court has diversity jurisdiction of this matter pursuant to 28 U.S.C. § 1332. 3. The amount in controversy in this matter exceeds the jurisdictional minimum of $75,000. 4. The Parties hereto are citizens and residents of different states. Upon information and belief. Defendant Geoff Miller is a citizen and/or subject and resident of a foreign state, Guernsey. 5. Plaintiff is a resident and citizen ofNew Jersey: a. Ms. Leschak has had a primary residence at the same address in Princeton, New Jersey for over twenty-five years; b. Although Raiseworks offered to lease Plaintiff an apartment in Manhattan for Plaintiff to work from during the workweek, at no time did Plaintiff indicate an intent to "reside in New York"; c. During her employment with Raiseworks Plaintiff returned on Friday afternoons to her Princeton, New Jersey home, where she remained with her husband until Monday morning when she returned to Manhattan to work. d. Plaintiff's husband has at all times resided at Plaintiffs Princeton address: Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 10 of 31 a^eedll34e0\£a8O22i™ [I5eaoiMt]m§l FiMD342Ha£5 R^ge33D6tLE6 e. Plaintiffs husband has a business located in New Jersey in very close proximity to Plaintiffs Princeton home; f. Plaintiffworked for her husband's business in Woodbridge, New Jersey prior to becoming employed by Defendants; g. Plaintiff files her taxes in New Jersey and did so while employed by Raiseworks, with her Princeton address listed as her home address on her tax returns; h. Plaintiff is, and at the time she was employed by Raiseworks was, registered to vote in New Jersey; i. In the past five years. Plaintiff has been called for jury duty on two separate occasions in New Jersey, once in April 201 1 and has been called again for April 2015; j . Plaintiffmaintains a New Jersey driver's license, did so while employed at Raiseworks, and never attempted to obtain a New York license at any time; and k. Upon being fired and directed by Raiseworks to vacate the Manhattan apartment within three days. Plaintiff immediately returned to her Princeton, New Jersey residence full time. 6. At the time she filed her Complaint initiating this civil action, Ms. Leschak was living in her Princeton home on a seven-day-per-week basis with no intention to reside in New York, or any state other than New Jersey. 7. This Court has supplemental jurisdiction over any New York state law claims pursuant to 28 U.S.C. § 1367. 8. This action properly lies in the Southern District ofNew York because Defendants employed Plaintiff in this jurisdiction, contracted with Plaintiff in this jurisdiction, and because the causes of action alleged herein arose in this jurisdiction. PARTIES 9. Plaintiff Jeane Leschak is a citizen and resident ofPrinceton, New Jersey and the United States ofAmerica. Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 11 of 31 cGtoconeertmei mMmmms naggeMofifLBe 10. Defendant Raiseworks, LLC is a Delaware limited liability company with a principal place ofbusiness and an office address at 121 W. 26th Street, 12th Floor, New York, New York 10001, where Plaintiff was employed. Raiseworks, LLC's members consist ofMr. Chodes, a citizen and resident of Illinois, and GLI Finance Limited, a citizen and/or subject of Guernsey, a foreign state, with a principal place of business in Guernsey. Raiseworks, LLC is a citizen ofDelaware, New York, Illinois and Guernsey. Raiseworks, LLC is not a citizen ofNew Jersey. 1 1 . Defendant Raiseco Holdings, LLC is a Delaware limited liability company with a principal place of business in Illinois and an office address at 121 W. 26th Street, 12th Floor, New York, New York 1000 1 , where Plaintiffwas employed. Raiseco Holdings, LLC's sole member is Mr, Chodes, who is a citizen and resident of Illinois. Raiseco Holdings, LLC is a citizen of Delaware and Illinois. Raiseco Holdings, LLC is not a citizen ofNew Jersey. 12. Defendant Gary Chodes is the Chief Executive Officer of Raiseworks with a business address at 121 W. 26th Street, 12th Floor, New York, New York 10001, who had supervisory authority over Plaintiff, and was responsible for the decision to withhold the unpaid wages described herein from Plaintiff. 13. At all relevant times Mr. Chodes was profoundly involved in the day-to-day operations ofRaiseworks and supervised employee tasks and responsibilities. 14. Mr. Chodes is a citizen and resident of Illinois and the United States ofAmerica. Mr. Chodes is not a citizen or resident ofNew Jersey. Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 12 of 31 gaasel 1 1 [Bccwneoih^gl FUMCQ^SBSIBB F®§ge55D(6fL66 15. Defendant GeoffMiller is an owner, director, and/or officer ofRaiseworks who was responsible for the decision to withhold the unpaid wages described herein from Plaintiff. 1 16. At all relevant times, one or more of the employees ofRaiseworks understood Mr. Miller to be a manager or boss for Raiseworks. 17. Mr. Miller had the power to control Ms. Leschak's employment 18. Even ifMr. Miller's control over Ms. Leschak may have been restricted, or exercised only occasionally, he still retained such control, and, for example, exercised it with respect to participating in the decision not to pay her the wages at issue in this civil action. 19. Mr. Miller is a citizen and/or subject and resident of Guernsey, a foreign state. Mr. Miller is not a citizen or resident ofNew Jersey. 20. Upon information and belief, both Mr. Chodes and Mr. Miller are among the ten largest shareholders of Raiseworks. 21. At all relevant times, Mr. Miller and Mr. Chodes had the power to hire and fire employees, supervise and control employee work schedules or conditions of employment, and to determine the rate and method ofpayment. Among other things, both Mr. Miller and Mr. Chodes participated in the decision not to pay Ms. Leschak; they determined the rate and method ofpayment for her wages. 22. At all relevant times, Mr. Chodes and Mr. Miller employed Ms. Leschak as owners, proprietors, agents, superintendents, foremen or other subordinates of Raiseworks. 23. At all relevant times. Defendants Raiseworks, LLC, Raiseco Holdings, LLC, Gary Chodes and GeoffMiller each are and have been employers within the meaning of the laws at 1 Upon information and belief. Prospect Capital Corporation (NASDAQ: PSEC) and Prospect Capital Management, LLC were also involved in the decision to withhold the unpaid wages described herein from Ms. Leschak. Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 13 of 31 Q^BeailJ4eo>^3Sa22™ LEMiaorMti^ei fflMm42££l£5 R^ge66o6tLB6 issue in this suit, and are accordingly subject to the provisions of said laws. 24. At all relevant times, Ms. Leschak has been an employee within the meaning of the laws at issue in this suit, and is accordingly entitled to the protection of said laws. 25. Mr. Chodes and Mr. Miller may be jointly and severally personally liable under New York Business Corporations Law § 630 for all debts, wages or salaries due and owing to Ms. Leschak for services performed by her for Raiseworks ifjudgment is entered against Raiseworks and Raiseworks fails to satisfy the judgment. STATEMENT OF FACTS 26. Ms. Leschak was recruited to work at Raiseworks by Executive Vice President of Operations Diane Westerback beginning in May 2014. 27. Prior to joining Raiseworks, Ms. Leschak held a position with her spouse's company, a position that she left in reliance upon Raiseworks' promises described at length herein. 28. Ms. Leschak's former position was filled by another individual hired after Ms. Leschak accepted Raiseworks' offer of employment. 29. At the inception of her employment, Raiseworks and Ms. Leschak entered into a written employment Agreement (the "Agreement") that provides for an annual salary of $180,000, a substantial bonus, and severance provisions as described in further detail herein. 30. During her tenure with Raiseworks, Ms. Leschak worked tirelessly to advance the company's interests, often working 12-hour days and putting forth her best effort to fulfill the requirements of her position. 3 1 . Ms. Leschak was repeatedly told that she was doing a good job at Raiseworks, and on at least two occasions when she specifically asked Ms. Westerback and Senior Manager Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 14 of 31 Oa38ellL^4es^OBSiC722RSy Q&mciiinsCTbtHei FiSdclDM£SZ£5 FEig§e77a6fl£6 Amy Wang if her performance was satisfactory, she was assured that her performance was, in fact, exceptional. 32. Despite her strong performance, when Karen Kulaga joined Raiseworks in June 20 1 4, Ms. Leschak was almost immediately targeted by Ms. Kulaga, who made a number of inappropriate comments to Ms. Leschak and displayed open hostility toward her. 33. For example, in July 2014, Ms. Kulaga cornered Ms. Leschak in a small computer closet and angrily stated, "you are making more money than me" and "it is not right and I cannot stay in this office." 34. Ms. Kulaga also expressed alarm over Raiseworks' provision of an apartment for Ms. Leschak, repeatedly indicating that she was offended by the idea that Ms. Leschak was receiving such wages and benefits. 35. During this confrontation, Ms. Kulaga implied that she was unwilling to work with Ms. Leschak and also told Ms. Leschak, "Gary [Chodes] will make it right," and closed the door to the computer closet in Ms. Leschak's face. 36. Ms. Leschak was so disturbed and shaken by the inappropriateness ofthese comments and actions that she reported them to Ms. Westerback, with the expectation that appropriate action would be taken. 37. Thereafter, Ms. Kulaga was often dismissive and demeaning toward Ms. Leschak without any justification, and appeared to be focused on pushing Ms. Leschak out of the company.2 38. On August 5, 2014, Ms. Leschak was abruptly terminated from her position. 2 Inexplicably, Ms. Kulaga frequently berated Ms. Leschak and reminded her that "we are not regulated," implying a willingness to engage in questionable practices, and expressing frustration with Ms. Leschak's desire to conduct business properly and follow applicable guidelines. Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 15 of 31 Q^GelllS4GevGra722M/] CGtociiineeiti^Sl Rt1fejcDM£BI£5 i=iag§e68D(6tUB6 39. During her termination meeting attended by Ms. Leschak, Mr. Chodes, Ms. Westerback and an attorney - Susan Joseph, Mr. Chodes advised Ms. Leschak that she was being let go because "this is a start-up and you are not a fit." 40. Mr. Chodes also told Ms. Leschak during this meeting that she had done the job, and been "hard working" and "professional." 4 1 . Further, Mr. Chodes promised Ms. Leschak that he would give her a good recommendation and offered to assist her in finding a new position. 42. Ms. Leschak was also offered a severance agreement during this meeting, including a minimal severance of $37,500, an offer not to contest unemployment benefits and a specific acknowledgment that it would supersede the terms of Ms. Leschak's employment Agreement with Raiseworks. 43 . Ms. Leschak's employment Agreement with Raiseworks specifically provides that Ms. Leschak will be paid an annual salary of $ 1 80,000, and that in the event of her termination without cause3 during the two-year term of the Agreement, she will "be entitled to a 12-month severance for a 24-month non-compete." 44. The Agreement contains no provision requiring that Ms. Leschak release any claims against Raiseworks in order to become entitled to the severance required by the Agreement. 45. Ms. Leschak's employment Agreement also requires that Ms. Leschak be paid an annual bonus of between 20 and 40 percent of her annual salary ofwhich Ms. Leschak was not 3 Any suggestion that Raiseworks had cause to terminate Ms. Leschak's employment would be inconsistent with the statements made to Ms. Leschak during her employment, the statements made during her termination meeting, Ms. Leschak's actual performance, and the company's offer of severance to Ms. Leschak upon her termination. Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 16 of 31 Q^selllteovQM722Fm CE)0€iiineeitit43.61 RHSdcCB^BEffi Rgi@ge99o(6tLB6 paid any portion despite her exemplary performance. 46. Ms. Leschak's exemplaiy performance is demonstrated by the fact that she completed all tasks assigned to her, met all deadlines she was asked to meet, and was praised by Raiseworks for her performance. 47. In addition, Ms. Leschak's Agreement provides that she is entitled to "four weeks ofvacation each calendar year, beginning in calendar year 2014." 48. Ms. Leschak's Agreement with Raiseworks also specifies that she is "eligible for the same benefits as all other employees." 49. Significantly, the Agreement also promises Ms. Leschak a two-year term of employment, specifying that, "This employment agreement shall carry a term of2 years." Ms. Leschak was promised a minimum two years of salary, bonus and other benefits specified by the terms of her written contract. 50. Ms. Leschak was not terminated for cause. 51. Ms. Leschak was not paid severance of one year of salary in accordance with her Agreement with Raiseworks. 52. Ms. Leschak was not paid any amount as a bonus in accordance with her Agreement with Raiseworks. 53. Ms. Leschak was not paid for four weeks of vacation time owed to her in accordance with her Agreement with Raiseworks. 54. Although Ms. Leschak did not receive any health benefits during her tenure with Raiseworks, she understands that other employees received reimbursements for COBRA payments and reimbursements for medical and dental expenses. 55. Ms. Leschak was not reimbursed for the COBRA expenses she incurred during Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 17 of 31 QSiaBPil 1 1 3i4eo^?98®q22FM'1 CBoaonaeftiMaSl RflttdcDMSEtBB FSajpeOIMtLES her employment with Raiseworks, nor was she reimbursed for related expenses that she will incur going forward during her severance period consistent with the terms of the Agreement and statements made by Raiseworks management. 56. Ms. Leschak was not paid a minimum two years of salary, bonus and other benefits specified by the terms ofher written contract in accordance with her Agreement. 57. In sum, Ms. Leschak has suffered financial losses due to Raiseworks' breaches of its various promises and agreements with Ms. Leschak and Defendants' conduct including, among other damages: 1) one year of severance; 2) a minimum 20 percent bonus; 3) four weeks ofvacation pay; 3) payment of health benefits for the period of her employment and severance period; and 4) payment of her salary, bonus and benefits for the remainder of the two-year employment term she was promised.4 58. Ms. Leschak has incurred a significant obligation for attorneys' fees as costs as a result of Defendants' conduct. 59. Ms. Leschak requested unequivocally that the earned but unpaid wages described herein be paid to her immediately on or about August 1 5, 20 14. 60. Ms. Leschak has demanded payment of the wages and benefits due to her and Defendants have repeatedly refused to make, or commit themselves to making the requested payments. 4 Raiseworks also promised Ms. Leschak a housing allowance ofup to $3,000 per month, and rented an apartment for Ms. Leschak's use. Despite the fact that Ms. Leschak was a tenant in that apartment and entitled to proper notice and time to vacate the apartment, she was forced to move from the apartment within three days of her termination. 10 Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 18 of 31 0^Eem^a\03S!Gra™ QSioaaneadmSl RflMD3ffi£SI£5 R^peLMM FIRST CAUSE OF ACTION BREACH OF CONTRACT (Plaintiff v. Raiseworks, LLC and Raiseco Holdings, LLC) 6 1 . Plaintiff repeats and incorporates by reference the allegations of all previous paragraphs as fully as though the same were set forth at length herein, 62. Raiseworks entered into a binding, written contract of employment and a contract to pay wages including severance, bonus, benefits, vacation pay and other wages, upon which Plaintiff relied. 63. Ms. Leschak was promised an annual salary of $ 1 80,000 per year during her employment with Raiseworks for a minimum two-year period. 64. Raiseworks breached this promise by terminating Ms. Leschak on August 5, 2014 and offering Ms. Leschak a severance agreement that required Ms. Leschak release all potential claims in exchange for a monetary severance payment.5 65. Raiseworks breached the Agreement by failing to pay Ms. Leschak all of the wages and benefits specifically agreed to in Ms. Leschak's employment Agreement for the entirety of the two-year term of her contract. 66. Raiseworks breached the Agreement by failing to pay Ms. Leschak one year of severance pay to which she is contractually entitled. 67. Raiseworks breached the Agreement by failing to pay Ms. Leschak the unused vacation pay she was owed. 68. Raiseworks breached the Agreement by failing to pay Ms. Leschak any portion of her 20% to 40% bonus. 5 This offer of severance after less than three months of employment is evidence that Defendants did not believe that they had cause to terminate Ms. Leschak, but instead realized that they no longer wished to honor the terms of their written Agreement and were willing to make a monetary payment in exchange for a release horn these terms. 11 Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 19 of 31 ateGmimrn&mmpm ntmmmefomsi mMmmsm FBa^em^oss 69. Raiseworks breached the Agreement by failing to pay for or reimburse Ms. Leschak for her health and other benefits provided to other Raiseworks employees. 70. Ms. Leschak relied upon Raiseworks' representations and its written contract with her in accepting the position with Raiseworks and forgoing other opportunities, including leaving employment with her former employer, a position that was thereafter filled. 71 . Ms. Leschak is owed, among other damages for Raiseworks' breaches of its various promises and agreements with Ms. Leschak: 1) one year of severance; 2) a minimum 20 percent bonus; 3) a minimum four weeks ofvacation pay; 3) payment ofhealth and other benefits for the period ofher employment and severance period; and 4) payment ofher salary, bonus and other benefits for the remainder ofthe two-year employment term she was promised. 72. By failing to honor its commitments and covenants under the Agreement as alleged herein, Raiseworks breached its contract with Ms. Leschak. 73. Ms. Leschak seeks damages for Raiseworks' breaches of the Agreement. 74. Raiseworks' conduct is without excuse or justification. SECOND CAUSE OF ACTION NEW YORK LABOR LAW - ARTICLE VI VIOLATION (Plaintiff v. All Defendants) 75. Plaintiff repeats and incorporates by reference the allegations of all previous paragraphs as fully as though the same were set forth at length herein. 76. Defendants violated the New York Labor Law when they failed to pay Ms. Leschak wages, including bonus wages, severance, vacation pay and other compensation, within the time specified by law. 77. At all relevant times. Defendants were each an employer and Plaintiffwas an employee within the meaning of the New York Labor Law. 12 Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 20 of 31 1 1 %Apn^MrP9mM EKoooineatimSl Rt1Mi3G4255I£5 RSig§el333(6fl£6 78. The unpaid compensation, including unpaid bonus, severance, vacation pay and other wages as alleged herein, are wages within the meaning of the New York Labor Law. 79. Defendants willfully failed to pay Plaintiff Jeane Leschak wages earned as defined by the New York Labor Law during the course ofher employment within the time limits prescribed by the New York Labor Law. 80. Following the termination of Plaintiff Jeane Leschak's employment. Defendants willfully failed to pay Plaintiff Jeane Leschak wages earned within the time limits prescribed by the New York Labor Law despite Plaintiff's requests that these wages be paid. 81. As a direct and proximate result ofDefendants' violation of the New York Labor Law, Plaintiff Jeane Leschak has sustained a loss of earnings, liquidated damages, and interest due thereon and has incurred attorneys' fees and costs. THIRD CAUSE OF ACTION PROMISSORY ESTOPPEL/DETRIMENTAL RELIANCE (Plaintiff v. All Defendants) 82. Plaintiff repeats and incorporates by reference the allegations of all previous paragraphs as fully as though the same were set forth at length herein. 83 . For the reasons set forth above. Defendants are liable to Plaintiff under a theory of Promissory Estoppel or Detrimental Reliance. FOURTH CAUSE OF ACTION UNJUST ENRICHMENT (Plaintiff v. All Defendants) 84. Plaintiff repeats and incorporates by reference the allegations of all previous paragraphs as fully as though the same were set forth at length herein. 85. For the reasons set forth above. Defendants are liable to Plaintiff under a theory of Unjust Enrichment. 13 Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 21 of 31 ates&mAeu&mmFm rmcnmetimsi ms^emofonm FIFTH CAUSE OF ACTION FRAUDULENT INDUCEMENT (Plaintiff v. AH Defendants) 86. Plaintiff repeats and incorporates by reference the allegations of all previous paragraphs as fully as though the same were set forth at length herein. 87. Upon information and belief, at the time that Defendants promised to provide a bonus, a two-year term of employment, severance pay, benefits commensurate with those of other employees, a housing stipend for two years and other benefits to Plaintiff, they did not intend to honor the promises. 88. Upon information and belief, at the time that Defendants promised Ms. Leschak two years of guaranteed employment, they had no intention of actually honoring the promise. 89. Upon information and belief, at the time that Defendants promised Ms. Leschak the rate of compensation of $ 1 80,000 per year, they had no intention of actually honoring the promise. 90. Upon information and belief, at the time that Defendants promised Ms. Leschak she would receive one year of severance if she were terminated without cause, they had no intention of actually honoring the promise. 91 . Upon information and belief, at the time that Defendants promised Ms. Leschak that she would receive a guaranteed bonus of 20% to 40% ofher annual salary, they had no intention of actually honoring the promise. 92. Upon information and belief, at the time that Defendants promised Ms. Leschak she would receive health and other benefits commensurate with other Raiseworks employees, they had no intention of actually honoring the promise. 14 Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 22 of 31 ?SGOOMrtim.Sl Rf?Mm«2£Sl£5 FSffl)geL£5o6fl£6 93. Upon information and belief, at the time that Defendants promised Ms. Leschak she would be entitled to a monthly housing stipend of $2,500 to $3,000 for at least two years, they had no intention of actually honoring the promise. 94. During Ms. Leschak's recruitment process, Raiseworks' officers and employees made misrepresentations regarding their intentions with respect to the material terms and conditions of Ms. Leschak's employment at Raiseworks. 95. Defendants made misrepresentations to Ms. Leschak as described above. 96. The misrepresentations made by Defendants to Ms. Leschak were fraudulent. 97. The misrepresentations by Defendants were of material facts. 98. The misrepresentations induced Ms. Leschak to leave employment with her former employer. 99. The misrepresentations by Defendants induced Ms. Leschak to take employment with Defendants and forego employment with other employers. 100. Defendants intended that Ms. Leschak rely on Defendants' misrepresentations. 101. Ms. Leschak relied on the Defendants' misrepresentations. 102. Ms. Leschak's reliance on Defendants' misrepresentations was a factual cause of the harm suffered by Ms. Leschak. JURY DEMAND 1 03 . Plaintiff hereby demands trial by jury as to all issues so triable. WHEREFORE, Plaintiff respectfully requests that the Court grant judgment for Plaintiff and that it order and award Plaintiff the following relief against Defendants: (1) Actual damages in the form of unpaid bonus, severance, benefits and other wages, and other benefits lost as a result ofDefendants' conduct; in an amount to be proved at trial; 15 Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 23 of 31 oaaaarnaeidmei RHitejcD342£!SIE5 FBsjpeiffixBfLfe (2) Compensatory damages for emotional pain and suffering, inconvenience, mental anguish, humiliation, and loss of reputation in an amount to be proved at trial; (3) Liquidated damages; (4) Punitive damages; (5) Attorneys' fees, costs and disbursements; (6) Interest; (7) Any and all additional relief available to Plaintiff under the relevant laws and the applicable contracts; and (8) Such other and further relief as the Court deems just and proper. DATED: March 25, 2015 BELL iSr BELL LLP* Bell IV Jennifer C. Bell ristopher A. Macey One Perm Center - Suite 1020 1617 John F. Kennedy Blvd. Philadelphia, PA 19103 (215) 569-2500 AttorneysforPlaintiff AdmittedPro Hac Vice -and- BANTLE& LEVY LLP Robert L. Levy (RL-1633) 817 Broadway New York, NY 10003 (212) 228-9666 16 Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 24 of 31 Exhibit B Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 25 of 31 Case l:14-cv-08072-FM Document 41-2 Fifed 04/15/15 Page 1 of 2 Raiseworks Jeane Leschak 4 Brook Drive West Princeton, NJ 08540 April 22, 2014 Dear Jeane, I am pleased to extend an offer of employment with Raiseworks, LLC ("the Company"') as Vice Presi dent of Operations. This fetter wiif outline the terms of your employment and compensation. The following terms summ arize your package: ' 9 Start Date: May 12, 2014 ¦ • Salary - You will receive an annual salary of $180,000 *f a housing allowance target of $2,50 0 per month but not to exceed $3,000. • Annual Sonus - You will be eligible for an annual bonus equal to approximately 20% - 40% of yo ur base salary for that year. The amount of the bonus will be based on individual and corporate performance. • Vacation - You will be eligible for four weeks of vacation per calendar year commencing In cale ndar year 2014. • Classfficatfon for FLSA purposes- You will be considered an exempt employee and will not be eligible for overtime. • At-Will Employment -You understand that you are an at-will employee without any specific te rm. • Benefits - Once the Company establishes its employee benefits (which shall include 401K, health, and other benefits typical of a company of this size), you will be eligible for the same benefits as all other employees. • Confidentiality - As a condition of employment, you agree to protect the confidentiality of the Company's proprietary information, including trade secrets, and, if so requested by the Company's CHO, will sign a Non-Disclosure Agreement In the form executed by other employees. • Intellectual Property - As a condition of employment, you agree that ail right, title and interest to a ny Inte/lectuai Property (as defined below) that is developed or created in whole or In part by you at any time and at any place while the you are employed by the Company or any predecessor of the Comp any and which, in the case of any or all of the foregoing, are related to or used in connection with the business of the Company or of any predecessor of the Company shall be the sole and exclusive property of the Company. Further, you understand that it Is a condition of this offer of employment that you transfer ail right, title, interest and control that you may have to the domain name "ralseworks.cor n" to the Company, effective immediately upon your execution of this offer, and vou agree to take a ll steps necessary to make such transfer as may be requested or required of you by the Company or its agents, "Intellectual Property" means (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and alt patents and patent applications cla iming such inventions, (b) all trademarks, service marks, trade dress, logos, trade names, fictitious names , P 000001 Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 26 of 31 Case l:14-cv-08072-FM Document 41-2 Filed 04/15/15 Page 2 of 2 Raiseworks brand names, brand marks and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrightable works, ail copyrights, and ail applications, registrations, and renewals in connection therewith, (d} all mask works and ail applications, registrations, and renewals in connection therewith, (e) ail trade secrets (including research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, methodologies, technical data, designs, drawings and specifications), (f) all computer software (including data, source and object codes and related documentation), (g) all other proprietary rights, (h) all copies and tangible embodiments thereof (in whatever form or medium), or (i) similar Intangible personal property. • Non-Compete - As part of the terms of this employment, you agree to a non-compete clause should you leave the Company. Your non-compete would be forlyear and would restrict you from being employed by competitors in the peer to peer lending space for existing and any future companies. Your non compete wii! include, but not be limited to, companies such as lending Club, Prosper, On Deck, Funding Circle, Wonga, Fundatlon, WeFund, AngelList, Second Market, Zopa, Funderra, Bond Street, Orchard, etc. • Non-Sollcltation of Employees - As part of the terms of this employment, should you leave the Com pany, you agree that you will not solicit others to leave or alter their employment or consulting relationship with the Company. This covenant will last for 1 year after you feave the Com pany and will apply to any person who is employed with or providing consulting services to the Company at the time of your departure or who was In that position at any time in the 1 year period prior to your departure. . » Agreement Term - This employment agreement shall carry a term of 2 years. • Severance- If you are terminated without cause during the 2 year agreement term, then you shall be entitled to a 12-month severance for a 24-month non-compete. We look forward to a long and productive association. If you have any questions regarding any of the employment terms outlined above, please feel free to contact me. If you agree to the terms, please sign beiow and return the orfginai letter to my attention. Since Diane Westerback EVP Operations Agreed to by: Jea Emp!We Date p 000002 Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 27 of 31 Exhibit C Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 28 of 31 Ote&mMewQmr&mA CE!caaTH30ftit4aS3 Fffl^dcD^llSISS RB^ella&ISS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JEANE LESCHAK, Plaintiff, -against- RAISEWORKS, LLC, et aL, Defendants. USDCSDNY DOCUMENT ELECTRONICALLY FILED DOC ffi DATEFiLED: ^/r./is . ORDER 14cv8072-FM •x FRANK MAAS, United States Magistrate Judge. Pursuant to the telephone conference held on March 1 1, 2015, it is hereby ORDERED that: 1. By March 25, 2015, Plaintiff shall file an amended complaint. 2. By April 8, 2015, Defendants shall file a motion to dismiss. Plaintiffs opposition papers shall be due on April 29, 2015, and Defendants' reply may be filed by May 6, 2015. SO ORDERED. Dated: New York, New York March 11,2015 FRANK MAAS United States Magistrate Judge Copies to all counsel via ECF Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 29 of 31 O^seillJ4eo^O80(722Riyis/l Q&canneatitiaSS fflSdd33411Et55 R^§€22D6t33 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MOUNT VERNON FIRE INSURANCE : COMPANY, Plaintiff, -against- MUNOZ TRUCKING CORP., et aL Defendants. USDC SONY DOCUMENT ELECTRONICALLY FILED DOC #: ¦UAJl'E FtLED: a/uAc ORDER 1 3cv6268-ER-FM -x FRANK MAAS, United States Magistrate Judge. Pursuant to the telephone conference held on March 1 1, 20 15, it is hereby ORDERED that: 1 . Any party claiming additional insured coverage under the Mount Vernon Commercial General Liability policy that is the subject of this action must do so, in writing, and provide supporting documentation to Plaintiffs counsel by March 25, 2015. 2. A further telephone conference shall be held on March 29, 2015, at 1 1 a.m. Counsel for the plaintiff shall initiate the call by placing a conference call to my chambers at (212) 805-6727. Counsel not involved in any continuing discovery dispute need not participate. Requests for adjournment must be made to the Court, in writing, at least two business days prior to the conference. Dated: SO ORDERED. New York, New York March 1 1, 2015 FRANK MAAS United States Magistrate Judge Copies to all counsel via ECF Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 30 of 31 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CV 14-cv-8072 (PKC) (FM) JEANE LESCHAK, Plaintiff, v. RAISEWORKS, LLC, RAISECO HOLDINGS, LLC, GARY CHORES, and GEOFF MILLER, Defendants. NOTICE OF MOTION. AFFIRMATION IN SUPPORT & EXHIBITS ATTACHED THERETO & AFFIDAVIT OF SERVICE DORF& NELSON LLP Attorneys for Defendants Office and Post Office Address, Telephone 555 Theodore Fremd Avenue Rye, New York 10580 (914) 381-7600 Sir: PLEASE TAKE NOTICE ? NOTICE OF ENTRY that the within is a (certified) true copy of a duly entered in the office of the clerk of the within named court on ? NOTICE OF SETTLEMENT that an order ofwhich the within is a true copy will be presented for settlement to the HON. one of the judges of the within named court, at - on at M. Dated, Yours, ete.DORF & NELSON LLP 555 Theodore Fremd Avenue Rye, New York 10580 To Service of a copy of the within is hereby admitted. Dated: Attorney(s) for Case 1:14-cv-08072-FM Document 66 Filed 07/22/16 Page 31 of 31
