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Toth v. GSF Mortgage Corp.

United States District Court, N.D. Ohio, Eastern Division

May 10, 2018

ANDY TOTH, Plaintiff,
v.
GSF MORTGAGE CORPORATION, et al., Defendants.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS. 50 AND 51]

          Benita Y. Pearson, United States District Judge.

         Pending is Defendants' Motion for Summary Judgment (ECF No. 50). Also pending is Plaintiff's Motion for Partial Summary Judgment as to Counts IV, V, VI, and IX of the Complaint (ECF No. 51). The Court has been advised, having reviewed the record, the parties' briefs, and the applicable law. For the reasons that follow, the Court grants Defendants' motion in part, and denies Plaintiff's motion. Defendants' motion is granted as to Plaintiff's claims for (1) violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.(Count IX) - regarding attorney's fees for his FLSA wage claim before the Department of Labor (“DOL”) only, and (2) intentional infliction of emotional distress (Count XII).[1]

         I. Stipulated Facts

         The stipulated facts[2] are as follows:

         1. Defendant GSF Mortgage Corporation (“GSF”) is a full-service direct mortgage lender that offers service to customers in more than 32 states, nationwide. See https://info.gogsf.com/more-about-us.

         2. On March 18, 2016, Plaintiff received a written offer of employment from GSF for a Branch Manager position. Offer of Employment (Plaintiff's Deposition Exhibit 1 (ECF No. 55-1)).

         3. In connection with his employment, on March 23, 2016, Plaintiff signed GSF's Requirement of Hours for Full-Time Sales Employees. Plaintiff's Deposition Exhibit 5 (ECF No. 55-3); Deposition of Plaintiff (ECF No. 55-2) at PageID #: 696-97.

         4. On March 23, 2016, Plaintiff signed an Employee Handbook Acknowledgment. Plaintiff's Deposition Exhibit 7 (ECF No. 55-4); ECF No. 55-2 at PageID #: 698-99.

         5. Plaintiff commenced his employment with GSF on or about March 29, 2016. Answer (ECF No. 44).

         6. Plaintiff originated the N.J. loan, which closed on June 6, 2016. Screenshot of Loans Originated by Plaintiff (Debbie Beier's Deposition Exhibit 49 (ECF No. 55-10);[3] Chart of Loans Originated by Plaintiff (Defendant Chad Jampedro's Deposition Exhibit 29 (ECF No. 55-11)).

         7. Plaintiff originated the LZ loan, which closed on May 24, 2016. ECF Nos. 55-10 and 55-11.

         8. Plaintiff originated the VE loan, which closed on June 20, 2016. ECF Nos. 55-10 and 55-11.

         9. Plaintiff originated the CW loan, which closed on October 21, 2016. ECF Nos. 55-10 and 55-11.

         10. On August 18, 2017, Plaintiff (through counsel) issued a Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action to the DOL relating to “[a]ny and all documents, notes, investigation files/records, pertaining to GSF Mortgage Corporation and Emil Kokolari initiated by Andy Toth or found through your own investigations of the above mentioned defendant(s).” Subpoena to DOL (Plaintiff's Deposition Exhibit 17 (ECF No. 55-24)).

         11. On September 14, 2017, the DOL produced documents in response to that subpoena. Plaintiff's Deposition Exhibit 18 (ECF No. 55-23).

         12. On June 9, 2016, GSF issued payment in the amount of $4, 795.20 to Plaintiff. The $4, 795.20 figure included payment of 160 hours of straight time paid at the Ohio minimum wage rate of $8.10, totaling $1, 296, and 288 hours of overtime compensated at a rate of time and a half, in the amount of $3, 499.20. Jampedro's Deposition Exhibit 27 (ECF No. 55-26).

         13. Plaintiff's earnings statement for the period ending June 31, 2016 reflected this $4, 795.20 payment. ECF No. 55-26.

         14. On August 18, 2017, Plaintiff (through counsel) issued a Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action to the Ohio Attorney General relating to “[a]ny and all documents, notes, investigation files/records, pertaining to GSF Mortgage Corporation and Emil Kokolari initiated by Andy Toth or found through your own investigations of the above mentioned defendant(s).” Subpoena to Ohio Attorney General (Plaintiff's Deposition Exhibit 14 (ECF No. 55-31)).

         15. On September 13, 2017, the Ohio Attorney General produced documents in response to that subpoena. Plaintiff's Deposition Exhibit 15 (ECF No. 55-27)).

         16. On August 18, 2017, Plaintiff (through counsel) issued a Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action to the Ohio Department of Commerce Division of Financial Institutions relating to “[a]ny and all documents, notes, investigation files/records, pertaining to GSF Mortgage Corporation and Emil Kokolari initiated by Andy Toth or found through your own investigations of the above mentioned defendant(s).” Subpoena to Ohio Department of Commerce Division of Financial Institutions (Plaintiff's Deposition Exhibit 19 (ECF No. 55-32)).

         17. Plaintiff never received a response from the Ohio Department of Commerce Division of Financial Institutions to his subpoena for production of documents. ECF No. 55-2 at PageID #: 799-800.

         18. On August 18, 2017, Plaintiff (through counsel) issued a Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action to the Consumer Financial Protection Bureau (“CFPB”) relating to “[a]ny and all documents, notes, investigation files/records, pertaining to GSF Mortgage Corporation and Emil Kokolari found through your investigations of the above mentioned defendant(s).” Subpoena to the CFPB (Plaintiff's Deposition Exhibit 16 (ECF No. 55-37)).

         19. Plaintiff never received a response from the CFBP to his subpoena for production of documents. ECF No. 55-2 at PageID #: 791-92.

         20. Gretchen Bohr was an underwriter at GSF. ECF No. 55-2 at PageID #: 637; Deposition of Gretchen Bohr ...


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