PRESENT: HON. MARILYN SHAFER Justice
Upon the foregoing papers, it is ordered that the motion and cross-motion are denied.
This is a dispute between a women's clothing merchandiser and a former employee. The employer moves to dismiss, in part, counterclaims asserted by the employee against its principal. The employee cross-moves to compel discovery.
The record shows that the defendant, Pat Rego, was employed by the plaintiff, Oasis Sportswear, for almost ten (10) years without a written contract. She was compensated for her services through her corporation, Pat Rego Consulting, Inc. When she left Oasis she formed Pat Rego, Inc. to continue to do business in the women's apparel industry.
Oasis initiated an action against Rego and her corporations for: (1) breach of fiduciary duty against Rego and Rego Consulting; (2) Unfair competition against all defendants; (3) unjust enrichment against all defendants; (4) injunctive relief; (5) money had and received against Rego and Rego Consulting (compensation overpayment 2006); and (6) money had and received against Rego and Rego Consulting (compensation overpayment 2007).
Defendants counter-claimed against Oasis and Joseph Trachtman, Oasis president and sole shareholder for: (1) breach of contract; (2) unjust enrichment; (3)fraud; and (4) an accounting against Oasis only.
Oasis moves to: (1) dismiss Pat Rego, Inc. as a third-party plaintiff and counter-claimant; (2) dismiss the first and second counterclaims against Trachtman; and (3) dismiss the third and fourth counterclaims on the following grounds:
(1) Oasis never contracted with Pat Rego, Inc., which did not exist until after Rego left Oasis.
(2)Rego failed to plead facts to substantiate a claim for piercing the corporate veil, the only theory under which liability could be imposed against Trachtman personally.
(3)The third cause of action, Fraud, does not lie where the allegations are merely duplicative of the breach of contract claim.
(4)Defendants are not entitled to an accounting because there is not a fiduciary relationship between the parties.
Defendants filed an amended answer, voluntarily removing Pat Rego, Inc. as a third-party plaintiff, and adding allegations regarding Trachtman's co-mingling of Oasis funds with his own and the absence of any corporate formalities.
Plaintiff urges this Court to disregard defendants' amended pleading due to its untimely service, 10 days too late to be served as of right. In the alternative, plaintiff argues the amended ...