United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE.
This action arises out of the termination of the plaintiff, Stacie Selfridge, from her employment at Boston Home Health Aides, LLC (“Boston Home Health”), where she served as a manager and allegedly anticipated obtaining an ownership interest in the company. Selfridge seeks declaratory and monetary relief for unpaid compensation, emotional distress, and breach of contract and fiduciary duty claims. The defendants - Boston Home Health, Mohamed Jama (the chief executive officer), and employees Tricia Murray, Bambie Anderson, and Noemi Perez - assert counterclaims alleging Selfridge’s violation of duties to the company and abuse of process. I have before me the parties’ cross-motions for summary judgment, two motions to strike, and the defendants’ motion for a protective order to prohibit the plaintiff from taking two supplemental depositions.
A. Factual Background
1. Formation and Membership of Boston Home Health
Boston Home Health, incorporated on January 4, 2010, is a Massachusetts limited liability company formed for the purpose of providing home health care services, nursing services, and related activities. The company is managed by its members, who are authorized to act on behalf of and manage the company. This authorization includes entering into agreements, executing contracts and documents, engaging employees and agents, defining such employees’ duties and compensation, and establishing member and employee benefit and incentive plans. Members are entitled to distributions from the company “from time to time . . . after the Members determine in their reasonable judgment that the Company has sufficient cash in excess of the current and the anticipated needs of the Company to fulfill its business purposes.” Such distributions are made in accordance with each member’s sharing ratio.
The original members of Boston Home Health were Jama, Abdulkadir Mohamed, and Barlin Hassan. Under the terms of the operating agreement, the original members agreed to make initial capital contributions, with Jama contributing $250 and obtaining an initial sharing ratio of 1/2, and Mohamed and Hassan contributing $125 each and each obtaining an initial sharing ratio of 1/4. The operating agreement permits the addition or withdrawal of members with the written consent of all existing members. No additional members have been added since the operating agreement was executed.
2. Selfridge and Other Individual Defendants Join Boston Home Health
Selfridge, Murray, Anderson, and Perez joined Boston Home Health as employees in late 2011, when the company had approximately 25 to 35 patients. Selfridge is a certified occupational therapist assistant who performed primarily administrative work for Boston Home Health. Murray is a physical therapist who took on an administrative management role at Boston Home Health in February 2012; Anderson is a registered nurse who served as assistant director of nursing; and Perez performs marketing work.
a. The Employment Agreement
The employment of the four women at Boston Home Health was governed by an employment agreement that all four signed along with Jama and Liban Abdulle, another employee, on February 1, 2012. This agreement was crafted by Attorney Saul Benowitz with the purported intention of governing the parties’ relationships until a dispute between Mohamed (one of the members) and Boston Home Health was resolved. The agreement states that it does not create or confer any membership or ownership interest beyond what is provided for in the operating agreement, and that it is intended “to enable the business of the Company to proceed to the mutual benefit of the parties” without adding new members.
i. Management and Compensation Provisions
Although the employment agreement does not create new members, it vests management authority for the company in Selfridge and Jama as officers, giving Jama the precedential decision where the two officers disagree. The employment agreement also sets forth the compensation (including profit sharing), duties and responsibilities, termination procedures, confidentiality requirements, non-assignment and non-compete requirements, and other employment terms for the employee signatories. It provides that Selfridge, Anderson, Murray, and Perez are each to receive a salary of $2, 000, presumably per week. The employee signatories shall also receive “incentive payments” on a quarterly basis or more frequently if the officers determine that “the financial condition of the Company” warrants such payment. Selfridge, Anderson, and Murray are each to receive 14.5% incentive payment shares, and Perez is to receive a 6.5% incentive payment share, presumably of whatever funds are authorized to be used for incentive payments. Finally, the agreement provides for officer approval of overtime hours and additional overtime compensation.
ii. Termination Procedures
If an employee is terminated, the employment agreement provides for two compensation scenarios: a termination payment or continued payment of the employee’s incentive payments. When the employee is terminated by the company for “adequate cause”or at the voluntary election of the employee, the company selects the compensation option. When an employee is terminated without adequate cause by agreement of the officers, the employee selects the compensation option.
Incentive payments upon termination are made consistent with the incentive payment shares defined in the agreement. The termination payment consists of “the reasonable present fair market value of the Employee’s rights to receive Incentive Payments, to the same extent as if said rights were freely assignable.” If the employee voluntarily left or has been terminated for adequate cause, the termination payment is reduced by “twenty-five (25%) of such determined value” and by “any amounts due to Company on account of [any] acts or omissions of the Employee constituting ‘Adequate Cause, ’” and the company may elect to make the payment either in a lump sum of by delivery of a promissory note. If the employee was terminated without adequate cause and opts to receive a termination payment, he or she is entitled to full payment within thirty days of termination.
3. Selfridge’s Termination
Selfridge was terminated on October 15, 2012, after approximately eight months of employment at Boston Home Health, through an email from Jama. She contends that she was never informed that her performance was inadequate and instead that she received positive reviews from Murray, who was apparently her supervisor. The defendants have articulated a variety of reasons for her termination, including that she failed to work more than five to ten hours a week at certain times because she was attending a master’s degree program, that she engaged in threatening conduct and was difficult to work with, that she wrote checks to at least one vendor that was not a Boston Home Health vendor, that she promised to bring new clients to the company but failed to do so, that she lacked the qualifications to perform her job responsibilities, and that she engaged in fraudulent activity regarding therapy visit notes submitted to MassHealth, for which the company had to return approximately $10, 000 in payments. Selfridge denies all of these claims except for her participation in a clinical program for her master’s degree, which required her to be away from her office during business hours five days a week for twelve weeks during her employment at Boston Home Health; she claims that she did her work for the company at other times.
B. Procedural History
The plaintiff filed her complaint on May 5, 2013 seeking recovery for “a freeze out as to her employment at, and ownership of” Boston Home Health. She seeks a declaratory judgment that she is entitled to 14.5% of the value of Boston Home Health, monetary damages for her termination without cause and her unpaid compensation, and an award of attorneys’ fees, based on her claims of breach of fiduciary duty, negligent and intentional infliction of emotional distress, breach of contract, violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., and violation of the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, §§ 148, 150.
The defendants filed their answer and counterclaims against the plaintiff on July 25, 2013, to which Selfridge responded on August 1. The parties then engaged in discovery, including numerous depositions. Nearly a year later, on July 22, 2014, the parties provided a joint status report indicating that two depositions remained and would be completed by July 31, document discovery would be completed by July 30, and motions for summary judgment would be filed by July 31. On July 29, the defendants filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56 as well as a motion for a protective order to prohibit the belated depositions of two individuals other than those contemplated by the July 22 status report.
Selfridge opposed the motions for summary judgment and for a protective order, and in so doing filed her own motion for summary judgment, seemingly limited to one issue: her purported right to incentive payments. The defendants opposed Selfridge’s summary judgment motion, and Selfridge has filed a reply. In addition, Selfridge moves to strike certain statements made by the defendants in their memorandum, and the defendants move to strike portions of Selfridge’s affidavit. Both motions to strike are opposed.
II. DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER AND TO PROHIBIT FURTHER DISCOVERY
As noted above, on July 22, 2014, the parties informed me that two depositions remained and would be completed by July 31, that document discovery would be completed by July 30, and that motions for summary judgment would be filed by July 31. According to the defendants, the two remaining depositions contemplated by the July 22 status report were of Perez - one of the named defendants - and of Liban Abdulle. These depositions were scheduled to occur on July 28 and July 31, respectively.
Following the deposition of Perez on July 28, attorneys for both parties orally confirmed that the last deposition was to occur on July 31. But later that day, defendants’ counsel received notices from plaintiff’s counsel, dated July 25, 2014, for the additional depositions of Mohamed - the member engaged in a legal dispute with Boston Home Health - and his counsel, Cameron Pease, on August 1. On July 24, 2014, Mohamed and Boston Home Health had reached a settlement agreement in principle, which Boston Home Health expected would remain confidential. In seeking to depose Mohamed and his attorney, and to obtain a copy of the settlement agreement, Selfridge purportedly sought to verify that a settlement agreement had indeed been reached and the dispute between Mohamed and Boston Home Health had been resolved.
On July 29, concurrent with their motion for summary judgment, the defendants filed the instant motion for a protective order as to the settlement discussions, negotiations, and agreement in the Mohamed litigation and to prohibit further discovery through the depositions of Mohamed and Pease. The defendants contend that the deposition notices were untimely and would add nothing to the summary judgment record, because they pertain to witnesses who have no relevant knowledge of the matter. They further contend that the information regarding the settlement would be inadmissible in this litigation and therefore it adds no value to Selfridge’s case. At a hearing on this matter on January 7, 2015, I directed the defendants to provide a copy of the settlement agreement, which was executed on August 26, 2014, to the plaintiff under seal, and afforded Selfridge an opportunity to respond to the agreement. Given these developments, to the extent the defendants sought to prohibit Selfridge’s access to the settlement agreement, that request is now moot.
As the question of access to the settlement agreement has been resolved, I address only Selfridge’s request to depose Mohamed and his attorney. Selfridge has not sought leave from this court to conduct these depositions. “Ordinarily, a party who wishes to conduct further discovery before the court acts on a summary judgment motion should present timely affidavits” under Fed.R.Civ.P. 56(d) explaining why certain critical facts are as of yet unavailable. Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 38 (1st Cir. 1992); see Filiatrault v. Comverse Tech., Inc., 275 F.3d 131, 137 (1st Cir. 2001) (“The management of pretrial discovery lies primarily within the sound discretion of the district court.”). Although the deposition requests were served on the defendants before the close of the discovery period, Selfridge represented in the July 22 joint status report that discovery would be completed and summary judgment motions filed by July 31. Clearly, depositions scheduled to occur on August 1 fall outside these bounds. Selfridge accordingly bears the burden of “articulat[ing] a plausible basis for the belief that discoverable materials exist which would raise a trialworthy issue.” Price v. Gen. Motors Corp., 931 F.2d 162, 164 (1st Cir. 1991). Her memorandum in opposition to the defendants’ motion fails to serve as an affidavit required under Rule 56(d) to carry this burden. Nonetheless, I will consider the arguments she makes there.
Selfridge’s proffered reason for wanting to depose Mohamed and his attorney is that she wishes to confirm that the dispute with Mohamed has been resolved - not that she believes they can provide any substantive support for her claims. This reason has been addressed by her receipt of the settlement agreement between Mohamed and Boston Home Health. Selfridge has not demonstrated that any additional information that could be obtained by deposing Mohamed or his attorney would create a trialworthy issue or even add any evidence of value to her case. In addition, Selfridge has puzzlingly stated that the issue of ownership - which from her perspective is conditioned on resolution of the Mohamed dispute - is not important at this stage. In her opposition to the defendants’ summary judgment motion and her own motion for summary judgment, Selfridge states that “ownership is not the dispositive factor” for her claims, and that “[s]he . . . understands that issues of fact preclude a decision on that point at this time” because of the dispute between Mohamed and Boston Home Health. Where Selfridge has stated that the pending claims in her case can be resolved without an answer to the ownership question, she has failed to demonstrate how additional evidence of ownership is relevant. Selfridge has offered no “plausible basis to support a belief that discoverable material exists which . . . would suffice to raise a trialworthy issue.” Filiatrault, 275 F.3d at 138. The change in circumstances of a recent resolution in the known dispute between Mohamed and Boston Home Health alone does not merit further discovery. Accordingly, I will not permit further discovery absent satisfaction of Fed.R.Civ.P. 56(d).
III. MOTIONS TO STRIKE
Both parties have filed motions to limit the evidence considered for summary judgment. Generally, “only evidence that would be admissible at trial may be considered in connection with a motion for summary judgment.” Barraford v. T & N Ltd., 988 F.Supp.2d 81, 84 (D. Mass. 2013) (citing Garside v. Osco Drug, Inc., 895 F.2d 46, 49-51 (1st Cir. 1990)). The proponent of the challenged evidence must prove its admissibility. See Id. I will consider each of the parties’ motions in turn.
A. Selfridge’s Motion to Strike
Selfridge objects to seven statements of fact in the defendants’ memorandum in support of their motion for summary judgment,  asserting that these statements should be stricken for lack of foundation and hearsay.
1. Challenges for Lack of Foundation
a. Statement 2
Selfridge moves to strike the statement that “[a]t best Selfridge worked maybe 10 hours per week, ” and that “[s]he spent three months of the eight with [Boston Home Health] in an all-day clinical training for school, not at [Boston Home Health].” This statement is based on Murray’s deposition testimony as to Selfridge’s minimal working hours and on Selfridge’s own deposition testimony. Selfridge contends that Murray failed to provide any evidence that she was aware of all of the hours Selfridge worked, and therefore the statement lacks a proper foundation.
Under Fed.R.Evid. 602, “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony.” Id. The defendants state that as Selfridge’s direct supervisor, Murray was aware of Selfridge’s assignments and knew that she could not perform much of her work remotely. Murray stated that Selfridge “wasn’t there but maybe four or five hours a week, realistically” and that “[s]he would claim she was working from home; however, she didn’t have access to the portal, nor was she qualified to do QA as a coder.” Given Murray’s supervisory role and her familiarity with Selfridge’s work, there is an adequate foundation for the first statement. The second statement, ...