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Barton v. Village Mortgage Co.

United States District Court, D. Maine

October 31, 2019

DERON BARTON, et al., Plaintiffs,


          John C. Nivison U.S. Magistrate Judge

         In this diversity action, Plaintiffs Deron Barton, Edmond Gosselin and Erin McNally seek to recover unpaid wages from their former employer, Defendant Village Mortgage Company. Plaintiffs assert claims pursuant to a Maine statute, 26 M.R.S. § 626.

         The matter is before the Court on Plaintiffs' Motion for Approval of Attachment and Attachment on Trustee Process (ECF No. 18), through which motion Plaintiffs seek an attachment in the amount of $262, 827.09. For the reasons set forth below, following a review of the record and after consideration of the parties' arguments, the Court grants in part Plaintiffs' motion.

         Factual Background

         Defendant Village Mortgage Company (Village) is a Connecticut business corporation that provides residential mortgage brokerage services in several states, including Maine. (Affidavit of Laurel Caliendo, ECF No. 23-1, ¶¶ 5-6.) Village maintained a Portland, Maine, branch location from January 2018 until April 2019. (Id. ¶ 23.)

         Plaintiff McNally was Branch Operations Manager at Village's Portland office from January 3, 2018 to April 15, 2019. (Affidavit of Erin McNally, ECF No. 18-2, ¶ 1.) Plaintiff Gosselin was employed by Village as a Loan Originator from November 5, 2018 until his resignation on April 15, 2019. (Affidavit of Edmond Gosselin, ECF No. 18-4, ¶ 1.) Plaintiff Barton was Branch Manager and Senior Loan Originator at the Portland location from January 3, 2018 until his resignation on April 15, 2019. (Affidavit of Deron Barton, ECF No. 18-7, ¶ 1.) Plaintiffs allege that they are owed commissions and/or bonuses according to the terms of their respective employment agreements with Village.


         A. Standard of Proof

         Pursuant to Federal Rule of Civil Procedure 64 and District of Maine Local Rule 64, the Court applies Maine law when presented with a motion for attachment and attachment on trustee process. To obtain an attachment or an attachment on trustee process, a plaintiff must demonstrate “that it is more likely than not that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the aggregate sum of the attachment and any liability insurance, bond, or other security, and any property or credits attached by other writ of attachment or by trustee process shown by the defendant to be available to satisfy the judgment.” M.R. Civ. P. 4A(c), 4B(c). A motion for an attachment or an attachment on trustee process must be accompanied by an affidavit or affidavits setting forth “specific facts sufficient to warrant the required findings and shall be upon the affiant's own knowledge, information or belief; and so far as upon information and belief, shall state that the affiant believes this information to be true.” M. R. Civ. P. 4A(i), 4B(c).

         B. 26 M.R.S. § 626

         The purpose of 26 M.R.S. § 626, which addresses compensation upon the end of employment, is to “provide a broad guarantee of prompt payment of wages to all employees on termination.” Burke v. Port Resort Realty Corp., 1999 ME 138, ¶ 9, 737 A.2d 1055, 1059. Section 626 provides in pertinent part:

An employee leaving employment must be paid in full no later than the employee's next established payday. Any overcompensation may be withheld if authorized under section 635 ….[1]
An employer found in violation of this section is liable for the amount of unpaid wages and, in addition, the judgment rendered in favor of the employee or employees must include a reasonable rate of interest, an additional amount equal to twice the amount of those wages as liquidated damages and costs of suit, including a reasonable attorney's fee.

         The Maine Law Court has determined that section 626 is unambiguous. Bisbing v. Maine Med. Ctr., 2003 ME 49, ¶ 5, 820 A.2d 582, 584. “Section 626 requires an employer to pay at least the undisputed wages owed regardless of whether the parties dispute the exact amount of wages owed.” Burke, 1999 ME 138 at ¶ 16, 737 A.2d at 1060. Unlike similar statutes in other jurisdictions, “section 626 does not have a ‘bona fide dispute' exception.” Id. Moreover, there is “no hint in the statute that treble damages and attorney fees can be awarded only on a showing that the employer has acted in bad faith.” Bisbing, 2003 ME 49 at ¶ 5, 820 A.2d at 584.

         To determine the amount, if any, that an employer owes, the Law Court explained:

[a]lthough section 626 creates a statutory right for former employees to seek payment, entitlement to payment is governed solely by the terms of the employment agreement. Rowell v. Jones & Vining, Inc., 524 A.2d 1208, 1210-11 (Me. 1987). Therefore, pursuant to section 626, a former employee may only claim what is owed according to the terms of the employment agreement; section 626 does not modify or supercede its terms.

Richardson v. Winthrop School Dept., 2009 ME 109, ¶ 7, 983 A.2d 400, 402. “The employment agreement, not section 626, governs how wages are earned and, if specified, when wages are to be paid.” Burke v. Port Resort Realty Corp., 1998 ME ...

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