PAPKEE v. MECAP LLC

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

ERIN PAPKEE, )

)

Plaintiff, )

)

v. ) Docket No. 2:20-cv-00006-NT

)

MECAP, LLC d/b/a MILK STREET )

CAPITAL, et al., )

)

Defendants. )

ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Before me is the Plaintiff’s motion for summary judgment (“Pl.’s Mot.”) (ECF

No. 45). For the reasons stated below, the motion is GRANTED IN PART and

DENIED IN PART.

BACKGROUND

I begin with some procedural history and an analysis of which facts are

appropriate for me to consider in evaluating the Plaintiff’s motion. With that

background in mind, I then draw from the record the facts that I take as true for

purposes of summary judgment.

I. Procedural History

In January 2020, Plaintiff Erin Papkee filed her Complaint against Defendants

MECAP, LLC d/b/a Milk Street Capital (“MECAP”), and the sole member of MECAP,

Scott Lalumiere. Compl. (ECF No. 1); Stipulated Material Facts (“SMF”) ¶ 2 (ECF

No. 47). The Defendants filed counterclaims against the Plaintiff, and the Plaintiff

responded by filing reply counterclaims against the Defendants. Countercls. (ECF

Nos. 14, 15)1; Reply Countercls. (ECF No. 19).

Discovery commenced, but the Defendants’ participation in discovery was

extraordinarily limited. In response to the Plaintiff’s forty interrogatories, the

Defendants offered twelve substantive responses, only two of which were longer than

two sentences. Objs. and Resps. to Pl.’s First Set of Interrogs. of Defs./Countercl. Pls.

MECAP and Scott Lalumiere (“Resps. to Interrogs.”) (ECF No. 46-2). One of those

longer responses identified the five witnesses that the Defendants intended to call at

trial, all of whom were expected to testify about the quality of Ms. Papkee’s work.

Resps. to Interrogs. 4. The Plaintiff also made forty-four requests for the production

of documents. Objs. and Resps. to Pl.’s First Req. for Produc. of Docs. of

Defs./Countercl. Pls. MECAP and Scott Lalumiere (ECF No. 46-2). As far as I can tell,

the Defendants produced no relevant documents. Pl.’s Reply to Defs.’ Statements of

Material Facts (“Pl.’s Reply to DSOMF”) 2, 4–6, 8–11, 13–14, 16–18, 20–23, 25–28,

30–33, 35–38, 40–43, 45–47, 49–52, 54, 56, 60–65, 67, 69, 71, 72, 74–76, 79–83, 85–

89, 92–97, 99–101 (“Defendants did not produce any documents as requested by

Plaintiff.”) (ECF No. 59). The Defendants did provide some additional information in

proceedings before the Maine Human Rights Commission (“MHRC”) through an

affidavit by Mr. Lalumiere, responses to requests for information, and responses to

1 Both Answers and Counterclaims are labeled “Answer and Counterclaim of Defendant Scott

Lalumiere,” but it is clear from the content that one is supposed to be Mr. Lalumiere’s and the other

is supposed to be MECAP’s (collectively, the “Answers”). See Answer and Countercl. of Def. Scott

Lalumiere 1 (ECF No. 14); Answer and Countercl. of Def. [MECAP] 1 (ECF No. 15).

the Plaintiff’s Statement of Particulars. Defs.’ Doc. Produc. (collectively, the “MHRC

Documents”) (ECF No. 62-2).

As a result of the Defendants’ limited participation in discovery, the Plaintiff

moved to dismiss the Defendants’ counterclaims and requested sanctions. Pl.’s Mot.

to Dismiss Defs.’ Countercls. and for Sanctions for Failure to Produce Disc. Ordered

by the Ct. (ECF No. 28). The Defendants acknowledged that their inability to “devote

the resources and attention necessary to pursue” their counterclaims warranted

dismissal of those claims but requested that the Court defer ruling on the imposition

of sanctions. Resp. to Mot. to Dismiss Countercls. and for Sanctions (“Defs.’ Resp. to

Mot. to Dismiss”) (ECF No. 29). Ultimately, this Court dismissed the Defendants’

counterclaims without prejudice and, as relevant here, prohibited the Defendants

“from presenting . . . in response to . . . any dispositive motion any evidence that they

were required to, but did not, provide in their initial disclosures in accordance with

Federal Rule of Civil Procedure 26(a)” or “that they were required to, but did not,

provide in response to the plaintiff’s written discovery requests,” except for

information “otherwise known to the plaintiff” (the “Discovery Sanction Order”).

Order Affirming Recommended Decision of the Magistrate Judge (ECF No. 38).

The Plaintiff has now moved for summary judgment on all of her claims and

on her reply counterclaims, which the Defendants oppose.2 On January 7, 2022, I held

2 The Defendants’ opposition is entitled “Defendant Scott Lalumiere’s Response to Plaintiff’s

Motion for Summary Judgment,” but it says that “the above captioned defendants . . . oppos[e] . . . the

Plaintiff’s Motion.” Def. Scott Lalumiere’s Resp. to Pl.’s Mot. for Summ. J. (“Defs.’ Opp’n”) 1 (ECF No.

50). As a result, I construe this to be not only Mr. Lalumiere’s opposition, but MECAP’s as well.

a conference regarding the parties’ summary judgment briefing (ECF No. 61). During

this conference, I gave the Defendants the opportunity to respond to any of the

Plaintiff’s requests to strike and gave the parties the opportunity to correct errors in

their prior filings. I also warned the Defendants that any information they provided

in support of their opposition to the Plaintiff’s motion needed to comply with the

Discovery Sanction Order. As a result, I instructed the Defendants to ensure that all

of the facts on which they were relying to oppose the Plaintiff’s motion had previously

been disclosed to the Plaintiff, to the extent they needed to be. And I also instructed

the Defendants to provide me with any documentation concerning these earlier

disclosures for me to be able to assess what the Defendants had previously disclosed.

In response, the Defendants provided me with their responses to the Plaintiff’s

interrogatories (ECF No. 61-1), the MHRC Documents, and a decision from the Maine

Department of Labor regarding the Plaintiff’s eligibility for unemployment benefits

(ECF No. 62-2, at 12–13). Because this is the only documentation that the Defendants

have provided to me, I have assumed that any information not found in these

documents was not previously disclosed to the Plaintiff. That means, pursuant to the

Discovery Sanction Order, the Defendants are barred from relying on any information

not contained in these documents unless that information was otherwise known to

the Plaintiff.

II. The Summary Judgment Record

Ordinarily, at this point in an opinion on a motion for summary judgment, I

would launch into a recitation of the facts in the light most favorable to the non-

movant, and I would point out disputed facts and resolve any requests to strike in

footnotes. However, because of the Discovery Sanction Order and the state of the

record, I devote an entire section of this opinion to an analysis of whether each

material fact is adequately supported or controverted and whether it is admissible

under the Discovery Sanction Order.

Because of the Defendants’ parsimonious production of documents and

information, and because it appears that none of the parties opted to take any

depositions, the summary judgment record before me is thin. In support of her

Statement of Facts (“PSOMF”) (ECF No. 46), the Plaintiff puts forward one affidavit

(her own), two strings of emails, and copies of the Defendants’ responses to the

Plaintiff’s Request for Production of Documents and to the Plaintiff’s interrogatories.

In support of their Statement of Facts (“DSOMF”) (ECF No. 51), the Defendants put

forward a single document, a declaration by Mr. Lalumiere (the “Lalumiere

Declaration”). Lalumiere Decl. (ECF No. 52). The Defendants also rely entirely on

the Lalumiere Declaration in attempting to refute portions of the PSOMF.

The Defendants raise no objections to my consideration of Ms. Papkee’s

affidavit or the documents she attaches to it. Ms. Papkee, on the other hand, lodges

a number of objections to the Lalumiere Declaration. First, she argues that because

this document was not produced in the course of discovery, it violates the Discovery

Sanction Order and should not be considered. Pl.’s Reply to DSOMF passim. I reject

this argument out of hand. There is nothing wrong with Mr. Lalumiere swearing out

a declaration to support his opposition to the Plaintiff’s motion for summary

judgment, and he had no obligation to produce this declaration any earlier than he

did. See Net 2 Press, Inc. v. 58 Dix Ave. Corp., 266 F. Supp. 2d 146, 153 (D. Me. 2003)

(“Additional information may be provided by an affidavit submitted in opposition to

a motion for summary judgment so long as the affiant did not testify at [a] deposition

that no such additional information existed.”). Because this is the only objection that

the Plaintiff raises with respect to DSOMF ¶¶ 1, 2, and 3, I accept these statements

of fact as true.3

Second, the Plaintiff argues that even if the Lalumiere Declaration does not

itself violate the Discovery Sanction Order, almost all of the information proffered

within it does. Pl.’s Reply to DSOMF passim. This second argument leads to nearly

the same outcome as the first—if the key parts of the Lalumiere Declaration are

inadmissible, then the document is of little more value than if the document itself is

inadmissible.4 Some of the statements to which the Plaintiff objects are based on Mr.

Lalumiere’s own personal knowledge (e.g., statements made by him, statements

made to him by the Plaintiff, and his observations). I disagree with the Plaintiff’s

3 Pursuant to the Local Rules, parties must support or oppose any statements of material fact

with citations to the record. D. Me. Loc. R. 56(f). Facts that are improperly controverted are deemed

admitted. D. Me. Loc. R. 56(f). When a party contends that an individual statement of fact should be

disregarded (as the Plaintiff has done here with each of the Defendants’ statements of fact), that party

must, “[w]ithout prejudice to the determination of the request to strike . . . admit, deny or qualify the

statement” and must support any qualifications or denials with a citation to the record. D. Me. Loc.

R. 56(e), (f).

The Plaintiff requests to strike each of the Defendants’ statements of fact while also denying

each of them. But the Plaintiff does not support any of her denials with citations to the record, despite

twice having an opportunity to do so. As a result, any of the Defendants’ statements of fact that are

not stricken are deemed admitted, due to the lack of an adequate denial by the Plaintiff.

4 The Plaintiff raises this objection to paragraphs six through twenty-seven of the twenty-eight-

paragraph Declaration of Scott Lalumiere (“Lalumiere Declaration”). Pl.’s Reply to Defs.’

Statements of Material Facts (“Pl.’s Reply to DSOMF”) 58–102 (ECF No. 59). But because the six

paragraphs to which the Plaintiff does not raise this objection do not deal with the substance of the

Plaintiff’s claims, disregarding these twenty-two paragraphs renders the Lalumiere Declaration

worthless.

contention that Mr. Lalumiere was necessarily required to disclose at an earlier time

his perceptions of the various events at issue. The Plaintiff makes no claim that Mr.

Lalumiere was unavailable for a deposition. As a result, I consider any statements by

Mr. Lalumiere based on his personal knowledge and otherwise admissible, so long as

they do not contradict any of Mr. Lalumiere’s admissions or evidence that he has put

forward. See Garmon v. Nat’l R.R. Passenger Corp., 844 F.3d 307, 315 (1st Cir. 2016)

(“[A] party’s affidavit may be self-serving and yet, still present genuine issues of fact

if it contains relevant information of which the party has first-hand knowledge.”).

Other statements in the Lalumiere Declaration are based on information that was

previously disclosed by the Defendants to the Plaintiff, either in response to the

Plaintiff’s interrogatories or via the MHRC Documents. As a result, with one

exception,5 I treat the Defendants’ responses as effectively disputing PSOMF ¶¶ 5, 6,

7, 9, 14, 15, 24, 31, 32, 34, 35, 37, 46, 50, 52, 55, 59, 60, 61, and 68 and parts of PSOMF

5 I do not take as true the Defendants’, or, for that matter, the Plaintiff’s, statements of law

masquerading as facts/responses, such as the Plaintiff’s characterization of herself as an employee

(Plaintiff’s Statement of Fact (“PSOMF”) ¶ 6 (ECF No. 46)), the Defendants’ characterization of her

as an independent contractor (Defendants’ Response to PSOMF ¶ 7), or the Plaintiff’s discussion of the

integration of her services into MECAP’s business operations (PSOMF ¶ 13).

¶¶ 38, 51, 54, 58, and 69.6 Similarly, I accept as true DSOMF ¶¶ 8, 9, 11, 12, 13, 14,

19, 22, 23, 25–37, and 39 and parts of DSOMF ¶¶ 4, 6, 16,7 20, 21,8 and 38.

However, I agree with the Plaintiff that some of the facts put forward in the

Lalumiere Declaration are based on information that should have been disclosed in

discovery, and they are thus inadmissible. These assertions are not based on Mr.

Lalumiere’s personal knowledge but rather on speculation or on information that Mr.

Lalumiere appears to have learned from other persons and/or documents, information

that was required to be—but was not—disclosed in discovery. See Fed. R. Civ. P.

56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made

on personal knowledge [and] set out facts that would be admissible in evidence . . . .”);

cf. Garmon, 844 F.3d at 315 (finding that plaintiff-employee’s assertions about his

employer’s decision making process were not admissible evidence due to a lack of

personal knowledge). Because these parts of the Lalumiere Declaration are not

6 As I explain in greater detail below, portions of PSOMF ¶¶ 38, 51, 54, 58, and 69 are deemed

admitted.

7 Paragraph 16 of the Defendants’ Statement of Facts (“DSOMF”) (ECF No. 51) is based on

paragraph 13 of the Lalumiere Declaration, which is ambiguous. In an effort to construe paragraph

13 in the light most favorable to the Defendants (as the opponents to summary judgment), I

understand paragraph 13 to mean that Ms. Papkee told Mr. Lalumiere that she intended to work for

others and that she was pursuing her own real estate projects. But while DSOMF ¶ 16, purports to

rely on paragraph 13 of the Lalumiere Declaration, it takes some liberties in asserting that Ms. Papkee

did perform work for other companies, not just that she intended to. The contention that Ms. Papkee

was performing work for other companies is unsupported, and I reject it.

8 Part of DSOMF ¶ 21—that Mr. Lalumiere was not trying to defraud anyone—is based on Mr.

Lalumiere’s perception and is admissible evidence. But the other part of DSOMF ¶ 21—that Ms.

Papkee never said she was unwilling to participate in fraud—is contradicted by the record. Mr.

Lalumiere admits that Ms. Papkee specifically told him—in an email that he acknowledges receiving—

that she needed exact numbers so that they were not “submitting false info[rmation].” PSOMF ¶ 36.

It is clear from that statement that she was concerned about fraud and notified Mr. Lalumiere of this

concern. “When opposing parties tell two different stories, one of which is blatantly contradicted by

the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

admissible, the Defendants cannot properly rely on them to support any of their own

statements of fact or to refute any of the Plaintiff’s. As a result, DSOMF ¶¶ 5, 7, 10,

15, 17, 18, and 24 and parts of DSOMF ¶¶ 4,9 6,10 20,11 and 3812 are stricken, and

PSOMF ¶¶ 3, 17, 18, and 19 and part of PSOMF ¶ 413 are deemed admitted.14

9 In DSOMF ¶ 4, the Defendants outline what they believe Ms. Papkee’s duties were. The

Defendants were required to disclose this information in response to Plaintiff’s Interrogatory 17. The

Defendants made some disclosures with regard to Ms. Papkee’s duties in response to that

interrogatory, in response to Plaintiff’s Interrogatory 21, and in the MHRC Documents. But some of

the information in DSOMF ¶ 4 was not previously disclosed, specifically that Ms. Papkee evaluated

proposals for projects and made recommendations about the scope or budget of projects, or that she

was responsible for evaluating the extent and quality of work performed so that MECAP knew how

much to pay. While it is true that the Discovery Sanction Order allows the Defendants to rely on

information that is “otherwise known to the Plaintiff,” nowhere in the information provided to me is it

clear that it was otherwise known to Ms. Papkee that these were part of her duties. While Ms. Papkee

was, of course, aware of what her own duties were, the fact that the Defendants say these were her

duties does not make it so. If these were actually Ms. Papkee’s duties (and thus known to her), they

presumably would have been—and certainly should have been—included in the Defendants’ response

to Plaintiff’s Interrogatory 17. I thus cannot conclude that Ms. Papkee was necessarily aware that

these were her duties and that the Defendants can be absolved of this lack of prior disclosure.

10 Based on the documents provided to me, it does not appear that any of the information in

DSOMF ¶ 6 was disclosed to the Plaintiff. I thus disregard all of the information in this statement of

fact except the statement that Ms. Papkee needed to visit construction sites. It is obvious from Ms.

Papkee’s affidavit that she was aware that she was required to make—and did make—these site visits

as a part of her job.

11 Most of the information in DSOMF ¶ 20 was previously disclosed to the Plaintiff or was not

required to be. But one piece of information in DSOMF ¶ 20 not only was not previously disclosed to

the Plaintiff, but also contradicts information that was. DSOMF ¶ 20 contends that the judge at a

damages hearing in a lawsuit involving MECAP “did not say that [she] needed more information.”

However, the Defendants previously admitted that that judge did require “more proof.” Defs.’ Resp. to

Pl.’s Statement of Particulars ¶ 37 (ECF No. 62-2).

12 As I explain, Mr. Lalumiere’s opinions of Ms. Papkee’s work lack sufficient foundation. The

portion of DSOMF ¶ 38 about Ms. Papkee’s quality of work is stricken.

13 Mr. Lalumiere adequately denies that he was aware that Ms. Papkee was working more than

forty hours per week. That part of PSOMF ¶ 4 is not deemed admitted.

14 These statements of fact primarily relate to the number of hours that Ms. Papkee worked and

the quality of her work. The Defendants seek to deny that Ms. Papkee worked more than forty hours

per week and to contend that she did not perform her job satisfactorily. With regard to the number of

hours Ms. Papkee worked, the Defendants’ basis for their denial relies entirely on Mr. Lalumiere’s

unsupported declaration that, based on his experience, she could not have worked—or should not have

been working—more than forty hours per week. See, e.g., Lalumiere Decl. ¶ 8 (“[I]t is inconceivable to

me that she could have worked an ‘average of 45 hours’ per week for MECAP at any time.”), ¶ 10 (“I

continued to assume that the [sic] MECAP was not providing her with even forty hours of work per

Third, the Plaintiff raises various other objections to sporadic parts of the

Lalumiere Declaration, such as relevance (paragraph nine and parts of paragraphs

six and ten) and that Mr. Lalumiere is only offering an opinion or conclusory

statement rather than a factual assertion (paragraph eight and parts of paragraphs

ten and fourteen). I have reviewed and considered all of the Plaintiff’s objections and

requests to strike, but I need not specifically address each of them because they are

week.”). But Mr. Lalumiere’s assumptions about how much Ms. Papkee should have been working are

not evidence of how much she actually was working. The Defendants never dispute that an eligible

employee is required to be paid overtime if that employee actually works more than forty hours per

week, see 29 C.F.R. § 785.11 (“Work not requested but suffered or permitted is work time.”), regardless

of whether some other employee could have completed the same tasks within a span of forty hours.

Moreover, Mr. Lalumiere makes clear that he considered Ms. Papkee’s work to be “largely

independent” and that he believes that he gave her “wide latitude” and “a significant amount of

discretion” in how she performed her job. Lalumiere Decl. ¶ 6. As a result, it is unsurprising that he

can only assume how many hours she actually worked. In addition, Mr. Lalumiere bases his opinions

about how much Ms. Papkee should have been working mostly on his experience. That information

about his experience is something he was required to disclose in response to Plaintiff’s Interrogatory

21, which sought the factual basis behind the Defendants’ claim that she was not entitled to overtime.

However, the Defendants did not disclose that factual basis, which is that, in his experience, Ms.

Papkee’s tasks should not have taken her as long as she claims they did. Because of this rank

speculation and lack of prior disclosure, I disregard all of Mr. Lalumiere’s statements as to the number

of hours that he believes Ms. Papkee worked or should have worked. See Torrech-Hernández v. Gen.

Elec. Co., 519 F.3d 41, 47 n.1 (1st Cir. 2008) (“We are not obliged to take at face value Torrech’s

subjective beliefs when they are not factually based and merely constitute conclusory, self-serving

statements.”).

I also disregard Mr. Lalumiere’s contentions that Ms. Papkee was not adequately performing

her job. In denying Ms. Papkee’s assertion that she was a competent employee, the Defendants rely

only on Mr. Lalumiere’s statements that he “learned that [Ms. Papkee] failed to properly review

projects” and that her “failings as a project manager became increasingly obvious to [him] over time.”

Lalumiere Decl. ¶ 14. However, Mr. Lalumiere has never disclosed any information about how he

learned this information. And it appears from the MHRC Documents that this information is not based

on his personal knowledge, given his previous statements that he was “constantly berated through

phone calls and emails for tasks that Ms. [Papkee] didn’t do.” Aff. of Scott Lalumiere ¶ 6 (ECF No. 62-

2). The Defendants also identified in response to the Plaintiff’s interrogatories five witnesses who they

said would testify about the quality of Ms. Papkee’s work. However, there are no statements of any of

these witnesses in the summary judgment record. If the Defendants intended to rely on this

information to support their opposition to the Plaintiff’s motion, then it should have been turned over

in discovery. And the fact that it was not means that it is excluded from being considered pursuant to

the Discovery Sanction Order. Mr. Lalumiere cannot avoid the consequences of the Discovery Sanction

Order by relying on hearsay that was otherwise discoverable. See Garside v. Osco Drug, Inc., 895 F.2d

46, 50 (1st Cir. 1990) (“Hearsay evidence, inadmissible at trial, cannot be considered on a motion for

summary judgment.”).

either moot (based on my earlier rulings) or they are meritless and do not warrant

further discussion. I do, however, specifically address the Plaintiff’s request to strike

DSOMF ¶ 40 on the ground that it is incoherent. I agree. This statement of fact makes

little sense, and despite having an opportunity to clarify this statement (after the

Plaintiff lodged her objection), the Defendants chose not to do so. This statement of

fact is stricken.

The only statements of fact that I have not yet addressed are the Plaintiff’s

statements of fact that I accept as true because the Defendants do not effectively

refute them. That is, the Defendants’ citations to the record (i.e., the Lalumiere

Declaration) do not support the refutation, or the MHRC Documents contradict the

cited portion of the Lalumiere Declaration being cited. Based on the Defendants’

inadequate denial, I accept as true PSOMF ¶¶ 8, 10, 27, 28, 30, 33, 40, 42, 45, and

6215 and parts of PSOMF ¶¶ 38,16 51,17 54,18 58,19 and 69.20 Similarly, while the

Defendants purportedly deny PSOMF ¶¶ 39 and 41, the parts of the Lalumiere

Declaration cited in support of these purported denials do not actually deny these

15 The Defendants offer no response to PSOMF ¶ 62. It is thus deemed admitted.

16 In PSOMF ¶ 38, Ms. Papkee contends that she asked many times to meet with MECAP’s

accounting manager (Christina Davis) and attorney to figure out what to do about MECAP’s lack of

evidence of its damages in the lawsuit. The Defendants deny this fact, citing to paragraph 16 of the

Lalumiere Declaration. Defs.’ Resp. to PSOMF ¶ 38 (ECF No. 51). However, the Lalumiere Declaration

only denies that Ms. Papkee asked to meet with MECAP’s attorney. See Lalumiere Decl. ¶ 16. I thus

take as true that Ms. Papkee asked to meet with Ms. Davis.

17 In PSOMF ¶ 51, Ms. Papkee contends that, on January 10, 2019, she and Mr. Lalumiere were

arguing about her failure to cooperate with his efforts to submit false information to the court in the

lawsuit. The Defendants deny this fact, citing to paragraphs 15–19 and 23 of the Lalumiere

Declaration. Defs.’ Resp. to PSOMF ¶ 51. But while the Lalumiere Declaration denies that Mr.

Lalumiere and Ms. Papkee had a dispute about engaging in fraud, it acknowledges that the damages

calculation was the subject of this disagreement. Lalumiere Decl. ¶¶ 19, 23. I thus take as true that

that was the subject of this conversation.

18 In PSOMF ¶ 54, Ms. Papkee contends that after this disagreement, she went to her seating

area where she was crying and gathering her belongings. She also contends that Mr. Lalumiere

followed after her and told her that he never touched her and never came after her. PSOMF ¶ 54. The

Defendants deny this entire statement of fact, citing (apparently mistakenly) to paragraph 20 of the

Lalumiere Declaration, which makes no assertions that are relevant to PSOMF ¶ 54. Defs.’ Resp. to

PSOMF ¶ 54. The Defendants likely meant to cite to paragraph 21 of the Lalumiere Declaration. But

even so, in paragraph 21, Mr. Lalumiere only denies making the referenced statements (that he never

touched or came after Ms. Papkee), Lalumiere Decl. ¶ 21, not the remainder of the statement of fact.

As a result, I accept this statement of fact as true, except for the two referenced statements.

19 The Defendants both deny and qualify PSOMF ¶ 58. The Defendants’ qualification is well-

taken, but the denial is not. In PSOMF ¶ 58, Ms. Papkee says that she spoke to two coworkers about

how Mr. Lalumiere tried to attack her and that she then took her belongings and left the office. The

Defendants deny this statement of fact, citing to paragraphs 15–26 of the Lalumiere Declaration. Defs.’

Resp. to PSOMF ¶ 58. The Lalumiere Declaration effectively denies Ms. Papkee’s version of the

confrontation—in particular, that Mr. Lalumiere tried to attack her. Lalumiere Decl. ¶ 19. However,

Mr. Lalumiere never addresses the remainder of PSOMF ¶ 58, that Ms. Papkee told her coworkers

what had happened. I thus consider that statement to be unrebutted, and I deem it admitted.

20 In PSOMF ¶ 69, Ms. Papkee asserts that the Defendants’ “baseless counterclaims” cost her a

lot of money to defend against. While the Defendants effectively deny that their defamation

counterclaims were baseless, Defs.’ Resp. to PSOMF ¶ 69 (citing Lalumiere Decl. ¶ 27), they do not

deny that MECAP’s other counterclaims were baseless or that Ms. Papkee spent a lot of money

defending against the counterclaims. I take those aspects of PSOMF ¶ 69 as true.

statements of fact; they merely qualify them. I thus treat these statements as

admitted, subject to the Defendants’ qualifications.

FACTUAL BACKGROUND

Given the above determinations, and bearing in mind my obligation to construe

the record in the light most favorable to the Defendants and draw all reasonable

inferences in their favor, see EdgePoint Cap. Holdings, LLC v. Apothecare Pharmacy,

LLC, 6 F.4th 50, 57 (1st Cir. 2021), I make the following factual findings.

Defendant MECAP is a loan brokerage, property management, and real estate

development firm that buys and sells properties in Maine and New Hampshire and

makes loans to commercial borrowers for construction projects. SMF ¶¶ 1, 3; DSOMF

¶ 2. Defendant Scott Lalumiere is the sole member of MECAP, but he was not the

owner of the equity interest during the relevant time period. SMF ¶ 2; DSOMF ¶ 1.

In October 2016, Plaintiff Erin Papkee began working for MECAP as a project

manager. PSOMF ¶ 2.

Ms. Papkee was initially hired as an employee, and she worked full time under

the control and supervision of Mr. Lalumiere, although she worked largely

independently. SMF ¶¶ 5–6; DSOMF ¶ 4. Ms. Papkee was responsible for overseeing

MECAP’s construction projects, which required her to visit the construction sites.

DSOMF ¶ 4; PSOMF ¶ 3. That meant that she had to drive hundreds of miles per

week, often to remote locations, including on weekends. PSOMF ¶ 3; SMF ¶ 10. She

was not paid for work-related mileage or tolls. SMF ¶ 10. Throughout Ms. Papkee’s

employment, she and Mr. Lalumiere would exchange work-related emails outside of

normal work hours. SMF ¶ 8. Ms. Papkee performed her work satisfactorily, and

MECAP has no record of any complaints about her work. PSOMF ¶¶ 19–20.

Ms. Papkee routinely worked an average of forty-five hours per week, and she

was paid a weekly salary of $960. PSOMF ¶¶ 3, 17–18; SMF ¶ 7. She was not paid

overtime. PSOMF ¶ 3, 17–18; SMF ¶ 7. Mr. Lalumiere did not act to prevent Ms.

Papkee from working more than forty hours per week. PSOMF ¶ 4. But Ms. Papkee

never complained or suggested to Mr. Lalumiere that she was working more than

forty hours per week, and had she done so, Mr. Lalumiere would have acted to find

out why she was working so much, to correct issues with her work, or to otherwise

reduce her hours. DSOMF ¶¶ 9, 12.

Around September 2018, Ms. Papkee told Mr. “Lalumiere that she wanted to

change her status” because she wanted to pursue other opportunities besides her

work at MECAP. DSOMF ¶¶ 11–12. She told Mr. Lalumiere that she believed she

could provide similar project management services to other businesses in addition to

the work she was doing at MECAP. DSOMF ¶ 13. She also complained about not

being reimbursed for tolls and mileage. DSOMF ¶ 12. Based on this conversation, Mr.

Lalumiere agreed to engage Ms. Papkee as an independent contractor and to increase

her pay to $1,200 per week. DSOMF ¶ 14. Nothing else changed about the work she

performed or where she performed her work besides this change in salary. PSOMF

¶ 8. Mr. Lalumiere controlled her work hours, where she worked, and how she

performed her work. PSOMF ¶ 10. She had no opportunity to share in the profits or

losses of MECAP. PSOMF ¶ 11. She made no investment in MECAP. PSOMF ¶ 12.

After September 2018, Ms. Papkee told Mr. Lalumiere that she intended to

perform work for other companies and that she was pursuing her own projects.

DSOMF ¶ 16. But she was not actually involved in her own real estate projects.

PSOMF ¶ 16.

At some point in 2018, MECAP filed a lawsuit against one of its contractors,

alleging that the contractor had failed to complete work for which it had been paid.

SMF ¶¶ 12–13. MECAP obtained a default judgment, and an uncontested damages

hearing was scheduled for December 5, 2018. DSOMF ¶ 19; PSOMF ¶ 23.

In the leadup to the damages hearing, Mr. Lalumiere prepared a spreadsheet

of estimated costs. PSOMF ¶ 22. And he tried to submit that spreadsheet as evidence

of damages at the hearing. PSOMF ¶ 23. When the judge asked Ms. Papkee if the

numbers on the spreadsheet were accurate, she said that she could not confirm

whether they were. PSOMF ¶ 26. The judge rejected Mr. Lalumiere’s attempts to

admit the spreadsheet into evidence and told Mr. Lalumiere that he needed to submit

detailed invoices matching the checks paid to the new contractor and that the new

contractor would need to testify to the truth and accuracy of the invoices and checks

at a new damages hearing. PSOMF ¶¶ 27–29; SMF ¶ 14.

MECAP’s accounting manager, Christina Davis, was not able to locate checks

issued in the amounts on the spreadsheet, although she was able to locate checks

issued to the new contractor. PSOMF ¶ 30; DSOMF ¶ 20. But because Ms. Davis

routinely cut checks to this contractor for multiple concurrent projects without

invoices and without clearly stating what the funds were for, some of these checks

may have encompassed payments made to the contractor for other projects than the

one at issue in the lawsuit. PSOMF ¶¶ 42–43.

When Mr. Lalumiere told Ms. Papkee that the checks to the contractor were

miscoded in QuickBooks and that Ms. Davis would need to fix these errors, Ms.

Papkee understood him to be saying that he was going to instruct Ms. Davis to re-

code checks paid for work on other projects to match the numbers on his spreadsheet.

PSOMF ¶¶ 41, 44. She also believed that he was asking the contractor to make up a

fraudulent bill to match his numbers. PSOMF ¶ 45.

Ms. Papkee believed that Mr. Lalumiere and MECAP were attempting to

defraud the court by seeking damages that they were not entitled to (i.e., damages

that were based on payments made for other projects), and she was not willing to

participate in this presumed fraud. PSOMF ¶¶ 33, 42. In that same vein, she told Mr.

Lalumiere that she was concerned about submitting false information to the court.

PSOMF ¶ 36.

Ms. Papkee asked many times to meet with Ms. Davis to figure out what to do

about the damages calculation. PSOMF ¶ 38. And she repeatedly told Mr. Lalumiere

that they could not make the numbers on his spreadsheet work. PSOMF ¶ 39. Mr.

Lalumiere told Ms. Papkee the numbers did not match because the construction

project was not finished. PSOMF ¶ 40.

Mr. Lalumiere and MECAP were not actually trying to defraud anyone and did

not encourage Ms. Papkee to engage in fraud. DSOMF ¶¶ 21, 26, 34. From Mr.

Lalumiere’s standpoint, he and Ms. Papkee had a difference of opinion about what

the judge wanted, and he grew frustrated with her inability to gather the necessary

information for the second damages hearing. DSOMF ¶¶ 25–26.

On January 10, 2019, Ms. Papkee and Mr. Lalumiere were alone in the

MECAP break room when an argument ensued about the damages calculation. SMF

¶ 15; PSOMF ¶ 51; DSOMF ¶¶ 27, 29. Ms. Papkee became angry and became

uncooperative with regard to helping gather the information to support the damages

calculation. DSOMF ¶¶ 27–28. Ms. Papkee contends that Mr. Lalumiere then tried

to attack her. PSOMF ¶ 52. Mr. Lalumiere denies this, DSOMF ¶ 30, but it is

uncontested that Ms. Papkee told two of her coworkers what had happened, PSOMF

¶¶ 57–58.

In the course of their argument, Mr. Lalumiere shouted at Ms. Papkee to “just

go!” because he thought she needed to leave the office to compose herself. PSOMF

¶ 53; DSOMF ¶¶ 33, 35. Ms. Papkee left the room crying, and Mr. Lalumiere followed

her. PSOMF ¶ 54. Ms. Papkee packed up her belongings and left. PSOMF ¶¶ 54, 56–

58. After leaving the office, she did not return, and the Defendants did not encourage

her to return. DSOMF ¶¶ 37, 38. Ms. Papkee was forced to resign. PSOMF ¶ 2.21

In January 2020, the Plaintiff filed the Complaint, asserting four causes of

action—a violation of the Fair Labor Standards Act (“FLSA”) (Count I) and Maine

Wage Statute (“MWS”) (Count II) due to the failure to pay overtime, a violation of the

Maine Whistleblower’s Protection Act (“MWPA”) (Count III), and tortious

21 The Defendants admit PSOMF ¶ 2 in which Ms. Papkee states that “she was fired or forced to

resign.” Defs.’ Resp. to PSOMF ¶ 2. Although they deny that Ms. Papkee was terminated, DSOMF

¶ 37, they never deny that she was forced to resign.

interference with Ms. Papkee’s contract with MECAP (Count IV). Compl. (ECF No.

1). All counts are asserted against both of the Defendants, except the tortious

interference claim, which is only brought against Mr. Lalumiere. The Defendants

subsequently brought counterclaims against the Plaintiff for defamation (on behalf

of both of the Defendants), breach of contract (on behalf of MECAP), and fraudulent

or negligent misrepresentation (also on behalf of MECAP). Countercls. (ECF Nos. 14,

15). The Defendants filed these counterclaims after Mr. Lalumiere heard from several

people that Ms. Papkee had defamed him and MECAP by saying that he had tried to

engage in fraud and that he had assaulted her. DSOMF ¶ 39. Ms. Papkee responded

by filing two reply counterclaims, for retaliation under the MWPA and Maine Human

Rights Act (“MHRA”), as well as under the FLSA, alleging that the Defendants’

counterclaims were baseless and retaliatory. Reply Countercl. (ECF No. 19).

Due to the failure of MECAP, health issues in Mr. Lalumiere’s family, and

travel restriction due to the COVID-19 pandemic, the Defendants claim they were

not able to “devote the resources and attention necessary to pursue” their

counterclaims, which is why the Defendants consented to their dismissal. Defs.’ Resp.

to Mot. to Dismiss 1–2; Recommended Dec. on Pl.’s Mot. to Dismiss & for Sanctions 3

(ECF No. 37). It cost Ms. Papkee a considerable amount of money to defend against

the Defendants’ counterclaims. PSOMF ¶ 69.

LEGAL STANDARD

Summary judgment is appropriate when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “A dispute is ‘genuine’ if the evidence ‘is such that a reasonable jury could

resolve the point in the favor of the non-moving party . . . .’ ” Taite v. Bridgewater

State Univ., Bd. of Trs., 999 F.3d 86, 93 (1st Cir. 2021) (quoting Ellis v. Fid. Mgmt.

Tr. Co., 883 F.3d 1, 7 (1st Cir. 2018)). “[A]nd a fact is ‘material’ if it ‘has the potential

of affecting the outcome of the case.’ ” Id. (quoting Pérez-Cordero v. Wal-Mart P.R.,

Inc., 656 F.3d 19, 25 (1st Cir. 2011)). The moving party bears the initial burden of

showing that no such dispute exists, and the nonmoving party must then respond

“with sufficient evidence to allow a reasonable jury to find in its favor with respect to

each issue on which it has the burden of proof.” Feliciano-Muñoz v. Rebarber-Ocasio,

970 F.3d 53, 62 (1st Cir. 2020) (internal quotation marks omitted). Indeed, summary

judgment “is the put up or shut up moment in litigation.” Jakobiec v. Merrill Lynch

Life Ins. Co., 711 F.3d 217, 226 (1st Cir. 2013) (quoting Goodman v. Nat’l Sec. Agency,

Inc., 621 F.3d 651, 654 (7th Cir. 2010)). A party opposing summary judgment must

offer evidence in support of its contentions, not just a “self-serving affidavit and bald

assertions.” Garmon, 844 F.3d at 316.

In reviewing a motion for summary judgment, I must view the record in the

light most favorable to the nonmoving party and draw all reasonable inferences in its

favor. EdgePoint Capital, 6 F.4th at 57. But I am “not obliged either ‘to draw

unreasonable inferences or credit bald assertions or empty conclusions.’ ” Theriault

v. Genesis HealthCare LLC, 890 F.3d 342, 348 (1st Cir. 2018) (quoting Cabán

Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007)); see also Barros-

Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (“Mere allegations, or

conjecture unsupported in the record, are insufficient.” (internal quotation marks

omitted)). When the evidence submitted in opposition to a motion for summary

judgment consists of information in an affidavit, that affidavit must consist of more

than “unsupported, speculative assertions.”Garmon, 844 F.3d at 315. “[T]o the extent

that affidavits submitted in opposition to a motion for summary judgment” fail to

“provid[e] specific factual information made on the basis of personal knowledge, they

are insufficient.” Id. (quoting Santiago-Ramos v. Centennial P.R. Wireless Corp., 217

F.3d 46, 53 (1st Cir. 2000)).

DISCUSSION

I. The FLSA and MWS Claims

The FLSA and MWS both prohibit employers from requiring certain employees

to work more than forty hours per week without paying them time and a half (1.5

times their regular hourly rate). 29 U.S.C. § 207(a)(1); 26 M.R.S. § 664(3). A claim for

unpaid overtime pursuant to the FLSA requires a plaintiff to prove that she was

employed by the defendant, her work involved interstate activity, and she performed

work for which she was undercompensated. Manning v. Bos. Med. Ctr. Corp., 725

F.3d 34, 43 (1st Cir. 2013). The MWS makes clear that a claim for unpaid overtime

under state law requires proof of the first and third elements (i.e., the non-

jurisdictional elements). See 26 M.R.S. § 664(3). There is no dispute that Ms. Papkee’s

work involved interstate activity.

“To successfully oppose a properly supported motion for summary judgment,

the non-moving party must demonstrate specific facts which establish a genuine issue

for trial.” Posadas de P.R., Inc. v. Radin, 856 F.2d 399, 401 (1st Cir. 1988). “Vague

and conclusory statements in an affidavit do not meet the specificity requirement of

Federal Rule 56.” Id. The Defendants have presented no admissible facts with respect

to the number of hours that Ms. Papkee worked. As a result, because they have not

adequately rebutted her contention that she worked more than forty hours per week,

I find that the Plaintiff has established that she performed work for which she was

undercompensated.

That leaves only the first part of the analysis, whether Ms. Papkee was an

employee of MECAP or an independent contractor. However, I need not conduct the

analysis as to whether Ms. Papkee was an employee or independent contractor

because the Plaintiff concedes that she must prove that her employer knew (or should

have known) she was working in excess of forty hours. Pl.’s Mot. 6 & n.6; see Manning,

725 F.3d at 44. And a jury could find that Mr. Lalumiere was not aware that Ms.

Papkee was working more than forty hours per week.22 The motion for summary

judgment on the FLSA and MWS claims is DENIED.

22 The Defendants also argue that Ms. Papkee was an administrative employee and thus was

exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”). Defs.’ Opp’n 2–3.

However, I note that not only have the Defendants made no argument that this exemption has any

applicability for the claim pursuant to state law, but, as the Plaintiff points out, this is an affirmative

defense. See Corning Glass Works v. Brennan, 417 U.S. 188, 196–97 (1974) (“[T]he general rule [is]

that the application of an exemption under the [FLSA] is a matter of affirmative defense . . . .”). As a

result, it is waived if not raised in the answer. O’Brien v. Town of Bellingham, 943 F.3d 514, 527 (1st

Cir. 2019); Fed. R. Civ. P. 8(c)(1). This affirmative defense was not presented in either of the Answers,

Answers 8–9, and it is waived.

II. The MWPA Claim

To prove a violation of “the MWPA, a plaintiff must demonstrate: (1) that [she]

was engaged in a protected activity; (2) that [she] suffered an adverse employment

action; and (3) that a causal nexus exists between the activity and the adverse action.”

LePage v. Bath Iron Works Corp., 2006 ME 130, ¶ 19, 909 A.2d 629. Regardless of

whether Mr. Lalumiere was actually trying to defraud the judge in the lawsuit (and

I take as true his assertion that he was not), the Plaintiff has demonstrated that she

believed that he was and that she told Mr. Lalumiere that she was concerned about

submitting false information to the court. She has established that she engaged in

protected activity. See Bodman v. Me. Dep’t of Health & Hum. Servs., 720 F. Supp. 2d

115, 124–25 (D. Me. 2010) (noting that protected activity includes complaining to an

employer about something that she reasonably believes is a violation of the law (citing

26 M.R.S. § 833(1)(A))).

The Plaintiff has also shown that she suffered an adverse action when she was

forced to resign after Mr. Lalumiere told her to “just go!” in the course of their

argument about the damages calculation and he then watched her pack up her

belongings and leave. I grant Mr. Lalumiere’s contention that he did not intend to

fire Ms. Papkee. But he does not deny that he forced her to resign, and that is

sufficient for an adverse employment action.23 See Sullivan v. St. Joseph’s Rehab. &

Residence, 2016 ME 107, ¶ 15, 143 A.3d 1283 (“Constructive discharge may be found

23 The Defendants have not argued that their contention that Ms. Papkee was an independent

contractor affects whether she could suffer an adverse employment action. See Defs.’ Opp’n 5

(restricting argument under Maine Whistleblower’s Act to a dispute over material facts). Any

argument to that effect has been forfeited. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

when, due to the actions of the employer, an employee’s ‘working conditions were so

difficult or unpleasant that a reasonable person in the employee’s shoes would have

felt compelled to resign.’ ” (quoting Lee-Crespo v. Schering-Plough Del Caribe, Inc.,

354 F.3d 34, 45 (1st Cir. 2003))).

Given that Ms. Papkee was told to “just go” in the course of an argument with

Mr. Lalumiere about the damages calculation, the timing is sufficient to infer a causal

nexus. That shifts the burden to the Defendants “to produce some probative evidence

to demonstrate a nondiscriminatory reason for the adverse employment action.”

DiCentes v. Michaud, 719 A.2d 509, 515 (Me. 1998); accord Murray v. Kindred

Nursing Ctrs. W. LLC, 789 F.3d 20, 25 (1st Cir. 2015).

The only nondiscriminatory reason that the Defendants have offered is that

Ms. Papkee did not perform her job well. However, the Defendants have offered no

admissible evidence in support of this reason, and I cannot consider a reason that is

entirely unsupported.24 Ms. Papkee’s prima facie case thus lies unrebutted, and she

is entitled to summary judgment. The motion for summary judgment on the MWPA

claim is GRANTED.

III. The Tortious Interference Claim

A “[t]ortious interference with a prospective economic advantage requires a

plaintiff to prove: (1) that a valid contract or prospective economic advantage existed;

24 Considering the evidence in the light most favorable to Mr. Lalumiere, I might be able to infer

that he considered Ms. Papkee to be insubordinate for failing to gather the information for the damages

calculation in the way that he thought appropriate and permissible. However, not only do the

Defendants not argue that Ms. Papkee was fired for being insubordinate, they are adamant that she

was never fired at all. They have thus not offered this as a nondiscriminatory reason for her forced

resignation.

(2) that the defendant interfered with that contract or advantage through fraud or

intimidation; and (3) that such interference proximately caused damages.” Currie v.

Indus. Sec., Inc., 2007 ME 12, ¶ 31, 915 A.2d 400 (quoting Rutland v. Mullen, 2002

ME 98, ¶ 13, 798 A.2d 1104). Mr. Lalumiere disputes that he interfered with Ms.

Papkee’s employment contract through fraud or intimidation, since he denies that he

engaged in any sort of fraud or intimidation (and he validly disputes the facts that

the Plaintiff puts forward in an effort to prove that he was involved in fraud or

intimidation). It is for a jury to decide who to believe. The motion for summary

judgment on the tortious interference claim is DENIED.

IV. The Retaliation Reply Counterclaims

The FLSA and the MHRA both prohibit retaliation against an individual for

opposing an unlawful employment practice. 29 U.S.C. § 215(a)(3); 5 M.R.S.

§ 4572(1)(E). The elements of both retaliation claims are typically described as being:

(1) that the employee engaged in protected activity, (2) the employee was the subject

of an adverse employment action, and (3) there is a causal link between the two.

Costain v. Sunbury Primary Care, P.A., 2008 ME 142, ¶ 6, 954 A.2d 1051 (MHRA);

Blackie v. Maine, 75 F.3d 716, 722 (1st Cir. 1996) (FLSA). But the language of both

statutes is broad enough to encompass adverse actions beyond employment actions,

including retaliatory litigation. See 29 U.S.C. § 215(a)(3) (prohibiting an employer

from “in any . . . manner . . . discriminat[ing] against any employee” who has brought

a FLSA action); 5 M.R.S. § 4572(1)(E) (prohibiting an employer from “discriminat[ing]

in any manner against individuals because they have opposed a practice that would

be a violation of” the MHRA); Darveau v. Detecon, Inc., 515 F.3d 334, 343 (4th Cir.

2008) (holding that an employer filing a frivolous lawsuit against a former employee

constituted an adverse action that could undergird an FLSA retaliation claim);

Thayer Corp. v. Reed, No. 2:10-cv-00423-JAW, 2011 WL 2682723, at *21 (D. Me. July

11, 2011) (“[The MWPA’s] protections would be hollow if an employer were free to

exact retaliation against whistleblowers outside of employment.”).

In any event, the Defendants have not disputed that the Plaintiff’s reply

counterclaims are legally sound. Rather, they argue that there remain genuine

disputes of material facts as to whether the Defendants’ defamation counterclaims

were retaliatory. Defs.’ Opp’n 6. I agree. A reasonable jury could find that Ms. Papkee

defamed MECAP and Mr. Lalumiere when she told her coworkers that she thought

MECAP was engaging in fraud and that Mr. Lalumiere had attacked her. As a result,

I conclude that a jury could find that the Defendants had a good faith basis for

asserting these counterclaims and that they were not retaliatory.

But the Defendants make no attempt to argue that MECAP’s other two

counterclaims (for breach of contract and fraudulent or negligent misrepresentation)

were not retaliatory. See Defs.’ Opp’n 6. Nor is there any information in the record to

support the idea that they were not. That is, MECAP has put forth zero evidence (or

argument) to support the idea that it had a good faith basis for bringing its breach of

contract and fraudulent or negligent misrepresentation counterclaims. I find that the

Plaintiff engaged in protected activity when she filed the Complaint and that MECAP

took an adverse action against the Plaintiff by filing its breach of contract and

fraudulent or negligent misrepresentation counterclaims. I also find that there is a

causal link between these events based on their timing and because there is no

evidence that MECAP would have filed its frivolous claims but for the Plaintiff filing

her Complaint. The motion for summary judgment on the retaliation reply

counterclaims is GRANTED as to MECAP and DENIED as to Mr. Lalumiere.

V. Mr. Lalumiere’s Personal Liability

Mr. Lalumiere also makes a cursory argument that he should not be personally

liable for the Plaintiff’s claims because he was not the equity owner of MECAP during

the relevant time period. Defs.’ Opp’n 6. But he fails to explain why his lack of equity

ownership makes a difference and cites no law in support of his position. At the

outset, I note that the cursory invocation of this argument is insufficient. “[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.” United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990). “It is not enough merely to mention a possible argument in the most

skeletal way, leaving the court to do counsel’s work, create the ossature for the

argument, and put flesh on its bones.” Id. This argument is forfeited due to a failure

to develop it.

Moreover, at least with respect to the FLSA claim, “liability attaches to any

‘employer,’ which is defined broadly to include ‘any person acting directly or indirectly

in the interest of an employer in relation to an employee.’ ” Manning, 725 F.3d at 47

(quoting 29 U.S.C. § 203(d)). For example, “a corporate officer with operational control

. . . is an employer.” Id. (quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir.

1983)). What is key is whether that officer has “caus[ed] the corporation to

undercompensate” the employee. Id. (quoting Baystate Alt. Staffing, Inc. v. Herman,

163 F.3d 668, 678 (1st Cir. 1998)). And the First Circuit has characterized an

individual’s ownership interest as being “highly probative” and “a significant factor”

in determining individual liability. Id. at 48.

It is uncontested that Mr. Lalumiere was the sole member of MECAP. And he

also was able to control Ms. Papkee’s hours25 and her pay. As a result, any

undercompensation of Ms. Papkee by MECAP is directly attributable to Mr.

Lalumiere, and he is individually liable.

CONCLUSION

For the reasons stated above, the Court GRANTS IN PART and DENIES IN

PART the Plaintiff’s motion for summary judgment (ECF No. 45). The Plaintiff’s

motion is GRANTED as to her MWPA claim (Count III) and as to her reply

counterclaims against MECAP, and it is DENIED in all other respects.

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 18th day of February, 2022.

25 For example, Mr. Lalumiere has represented in the Lalumiere Declaration that had he known

Ms. Papkee was working more than forty hours per week, he would have acted to reduce her hours.