                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



 MONIQUE THOMPSON,

        Plaintiff/Counter-Defendant,
                v.                                        Civil Action No. 08-1841 (JDB)
 FATHOM CREATIVE, INC.,

        Defendant/Counter-Plaintiff.


                                 MEMORANDUM OPINION

       Plaintiff/Counter-Defendant Monique Thompson ("Thompson") filed an action against

Defendant/Counter-Plaintiff Fathom Creative, Inc. ("Fathom"), alleging failure to pay overtime

wages pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., the District of

Columbia Minimum Wage Revision Act, D.C. Code § 32-1003, and the District of Columbia

Wage Payment and Collection Act, D.C. Code §§ 32-1302-3. Thompson further alleges a failure

to provide continuation health care coverage under the District of Columbia Health Continuation

Coverage Act, D.C. Code § 32-731. Fathom filed counterclaims against Thompson for tortious

conversion and breach of fiduciary duty. Fathom alleges that Thompson unlawfully converted

Fathom's funds by misappropriating them for her own use, misusing her corporate credit card,

refusing to return company property, and failing to pay her portion of her health insurance

premiums. Countercl. ¶ 105. Fathom also alleges that Thompson breached her fiduciary duty

owed to Fathom by these same actions, as well as by creating false time records. Id. ¶ 111.

       Now before the Court is Thompson's motion to dismiss, or in the alternative, for

summary judgment on Fathom's counterclaims. Thompson argues that Fathom has not
established that her control over its funds was unlawful and that her actions fell within the scope

of her duties as a fiduciary to Fathom. See Thompson Reply at 12-16. Because discovery has

not occurred, summary judgment on the counterclaims is premature at this time, and Thompson's

motion will therefore be denied.

                                        BACKGROUND

       In June 2005, Fathom offered Thompson a position as a part-time Bookkeeper/

Administrator. Countercl. ¶ 1. According to Fathom, the offer included a salary of $35,000 per

year and an opportunity to join Fathom's health and dental plan; Thompson accepted the offer.

Id. ¶¶ 2-4; see also Fathom Ex. C. Fathom agreed to pay half of Thompson's monthly premium

payment for the company's health and dental plan. Fathom Ex. C. Thompson alleges different

terms of employment than those outlined by Fathom. See Thompson Mem. at 2. In particular,

Thompson's version of Fathom's offer letter contains a salary of $36,500 per year, a definition of

"part time" as "twenty hours per week," and an agreement that Fathom would pay for

Thompson's personal health insurance premiums. Thompson Ex. 1. Thompson also claims that

Fathom agreed to pay for all of her health benefits when she initially joined Fathom's plan in

2006, and, later in her employment, for part of her benefits. Thompson Mem. at 2.

       Fathom alleges that Thompson's daily job responsibilities included managing Fathom's

bank and credit accounts, and were often performed without the express approval of Fathom.

Fathom Statement of Material Facts in Dispute ("SOF") ¶¶ 5-11. Thompson was also issued a

corporate American Express card for which Fathom paid the bill. Countercl. ¶¶ 10-11. Fathom

further argues that only when Fathom president Drew Mitchell's confidence in Thompson had

started to deteriorate did he require Thompson to seek his approval before signing any checks.


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Fathom SOF ¶ 12. Thompson, on the other hand, claims that she had different job

responsibilities that did not include a financial management role. Thompson Mem. at 2. She

also claims that she conducted every transaction, financial or otherwise, under the express

authorization of Mitchell, obtained through one-on-one weekly meetings. Id. at 3-4. Mitchell

denies these regular weekly meetings occurred except near the end of Thompson's employment,

when Mitchell requested to meet with Thompson because of his concerns about her work.

Fathom SOF ¶ 8.

       Fathom further alleges that during her employment, Thompson did not conform with

Fathom's timekeeping procedures, and that the unauthorized time records she did keep

contradicted Fathom's own records. See Countercl. ¶¶ 12-29. Thompson counters that Mitchell

authorized all of her nonconforming timekeeping procedures, and that some irregularities can be

explained by technical difficulties with Fathom's timekeeping database. Thompson Mem. at 4.

       Initially, Fathom agreed to pay Thompson by check directly from Fathom's account.

Fathom SOF ¶ 17. At some point during her tenure at Fathom, Thompson began paying herself

through wire transfers into her own bank accounts. Countercl. ¶¶ 34-35. Fathom alleges that

despite two pay raises in January 2007 and April 2007, Thompson overpaid herself by over

$30,000 during her time at the company. See id. ¶¶ 36-54. Fathom also asserts that Thompson

opened an unauthorized "Pay Pal" account in Fathom's name to send and receive electronic

payments through the Internet. Id. ¶¶ 58-62. Fathom claims that Thompson diverted company

funds into her own bank account via this unauthorized Pay Pal account. Id. ¶¶ 63-67.

Thompson, on the other hand, argues that any transfers she made were expressly authorized by

Mitchell and that, despite these transfers, Fathom still owes her unpaid overtime wages. See


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Thompson Mem. at 4-6. Thompson offers evidence of Fathom's approval of one such transfer

outside of Fathom's January and April 2007 pay raises made to compensate Thompson for

"overages." Thompson Ex. 32.

       In September 2007, Fathom funded a two-day company retreat at the Ritz Carlton hotel in

San Juan, Puerto Rico. Countercl. ¶¶ 68-69. Fathom claims that Thompson charged the total

cost of her own six-night stay on her corporate American Express card, as well as the stay of her

friend, Kristal Shipp, and the extended stay of two other Fathom employees. Id. ¶¶ 73-85.

Fathom was never reimbursed for these charges. Id. ¶ 86. Thompson argues that the charges

were accidental and that she believed she had fixed the situation by calling the Ritz Carlton and

alerting them of the error. See Thompson Mem. at 6-7.

       Finally, Fathom argues that during her tenure at the company, Thompson made

unauthorized purchases at the Apple Store with her corporate American Express card, and never

reimbursed Fathom for these purchases. Countercl. ¶¶ 87-92. Fathom additionally claims that

when her relationship with the company ended in March 2008, Thompson refused to return

Fathom's laptop and other company property, despite Fathom's repeated requests. Id. ¶ 98.

Thompson again argues that all of the purchases, and her ownership of the laptop, were

authorized by Fathom. See Thompson Mem. at 7-8.

       On October 27, 2008, Thompson filed a four-claim complaint seeking unpaid overtime

wages and claiming failure to continue health insurance coverage pursuant to the Fair Labor

Standards Act and other D.C. wage and hours laws. See Compl. ¶¶ 40-64. With its January 30,

2009 answer, Fathom filed a two-count counterclaim against Thompson. Count one alleges that

Thompson converted Fathom's property by (i) paying herself more than what was approved by


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Fathom; (ii) failing to pay her portion of her health insurance premiums; (iii) misappropriating

money from Fathom's Pay Pal account to her personal bank account; (iv) making unauthorized

charges and purchases on her corporate American Express card without reimbursing Fathom for

the same; and (v) failing to return company property upon her termination. Countercl. ¶ 105.

Count two alleges that Thompson breached her fiduciary duty to Fathom through most of the

actions alleged in count one, as well as by creating false time records. Id. ¶ 111.

       Now before the Court is Thompson's motion to dismiss, or in the alternative, for

summary judgment on the counterclaims. Thompson argues that Fathom's conversion claim

should be dismissed because (i) she lacked the intent required for conversion, especially in

regards to the corporate American Express charges at the Ritz Carlton, (ii) she was explicitly

authorized to make payments to herself from Fathom's bank account or Pay Pal account and to

make purchases at the Apple Store, and (iii) she paid her health insurance premiums and returned

company property consistent with Fathom's authorization. Thompson Mem. at 10. Finally,

Thompson argues that the breach of fiduciary duty claim also fails because, although she owed a

fiduciary duty to Fathom as an employee, she did not breach this duty, as Mitchell authorized and

was on notice of all her actions. Thompson Reply at 15-16.

                                   STANDARD OF REVIEW

       Thompson has moved to dismiss Fathom's counterclaims under Federal Rule of Civil

Procedure 12(b)(6) or, in the alternative, for summary judgment. When, on a Rule 12(b)(6)

motion, "matters outside the pleadings are presented to and not excluded by the court, the motion

must be treated as one for summary judgment under Rule 56. All parties must be given a

reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P.


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12(d). Because Thompson submitted matters outside the pleadings, the Court must treat

Thompson's motion as one for summary judgment.1

       Summary judgment is appropriate when the pleadings and the evidence demonstrate that

"there is no genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial

responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its

motion by identifying those portions of "the pleadings, the discovery and disclosure materials on

file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material

fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.

       In determining whether there exists a genuine issue of material fact sufficient to preclude

summary judgment, the court must regard the non-movant's statements as true and accept all

evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the

"mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to



       1
           Thompson's memorandum in support of her motion is accompanied by her affidavit,
which itself is supported by 25 exhibits. Her reply includes an additional ten exhibits. Fathom
argues that the Court should decline to consider Thompson's motion for summary judgment and
limit its review to the facts alleged in Fathom's counterclaims, pursuant to Rule 12(b)(6), because
some of the exhibits accompanying Thompson's affidavit constitute unauthenticated hearsay. See
Fathom Opp'n at 6-7. For the purposes of summary judgment, affidavits "must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
is competent to testify on the matters stated." Fed. R. Civ. P. 56(e). Although parts of
Thompson's submission may not conform to the requirements of Rule 56, the Court does not at
this time find that the documents are, as a whole, inadmissible. For present purposes, the Court
will simply disregard the non-complying portions of Thompson's affidavit. See Williams v.
Dodaro, 576 F. Supp. 2d 72, 77 n.2 (D.D.C. 2008).

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the absence of evidence proffered by the non-moving party, a moving party may succeed on

summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50

(citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence

on which the jury could reasonably find for the [non-movant]." Id. at 252.

                                          DISCUSSION

       By relying on numerous documents outside of the pleadings, Thompson has converted

her motion to dismiss into a motion for summary judgment. Pursuant to Rule 12(d), if a motion

to dismiss under Rule 12(b)(6) is converted to a motion for summary judgment, "all parties must

be given a reasonable opportunity to present all the material that is pertinent" to the motion for

summary judgment. "Pre-discovery summary judgment motions are usually premature and hence

disfavored." Bourbeau v. Johnathan Woodner Co., 600 F. Supp. 2d 1, 3 (D.D.C. 2009); see also

Celotex, 477 U.S. at 322 (summary judgment is normally appropriate after "adequate time for

discovery"); Tabb v. District of Columbia, 477 F. Supp. 2d 185, 188 n.1 (D.D.C. 2008) (noting

that a pre-discovery summary judgment motion "usually is a disfavored practice"). In this case,

Thompson's motion for summary judgment was filed prior to discovery. The only available

testimonial evidence regarding the facts of the case is in the form of declarations and affidavits

by Thompson, Mitchell, and one witness. The question, then, is whether the record now before

the Court is sufficient to warrant summary judgment on Fathom's counterclaims at this early

stage in the proceedings.

       According to Thompson, the record is sufficiently complete for the Court to rule in her

favor. Thompson Reply at 11. She argues that pre-discovery summary judgment is appropriate


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in this case because the evidence she has produced is comprised mostly of Fathom's own

business documents or those of Fathom's third party vendors. Id. She adds that Fathom has

already conducted some "discovery" of its own documents, and has had ample time to compare

its own documents with those submitted by Thompson. Id. Fathom responds that "in order to

adequately and thoroughly address all of the material facts upon which Thompson relies in

support of her motion for summary judgment – particularly the facts reflected in the various

third-party documents attached to Thompson's memorandum – Fathom requires sufficient time to

conduct discovery, especially third-party discovery." Fathom Opp'n at 6. Fathom outlines

specific needs for discovery in its opposition brief and Mitchell's attached declaration, including

the need for discovery outside of its own business documents. See id. at 9; Mitchell Decl. ¶¶ 19,

23, 35-36.2 The Court has reviewed the affidavits, declarations, and exhibits submitted by the

parties and agrees with Fathom that the record as it stands is lacking.

       Given the paucity of the record, genuine issues of material fact remain to be resolved.

Neither party has deposed the other. For many of the alleged instances of conversion and breach

of fiduciary duty, the Court is left with only the competing affidavit and declaration of Thompson

and Mitchell. The factual disputes that arise are material. For example, to establish its

       2
          Thompson contends that the Court need not order additional discovery because Fathom
has not filed an affidavit pursuant to Rule 56(f) showing that it is "conducting, or intends to
conduct valuable discovery." Thompson Reply at 12. Thompson is correct that Fathom did not
file a Rule 56(f) affidavit in response to Thompson's motion. But other documents, including
opposing motions, may suffice "to alert the district court of the need for further discovery" and
therefore serve as the "functional equivalent of an affidavit." First Chicago Int'l v. United
Exchange Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988); see also Elliott v. Fed. Bureau of Prisons,
Civ.A.No. 04-1702, 2006 WL 3826930 at *14-15 (D.D.C. Dec. 27, 2006). In light of the fact
that no discovery has taken place, Fathom's opposing motion and Mitchell's attached declaration
are sufficient to show the need for further discovery at this time. See First Chicago Int'l, 836
F.2d at 1380.

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conversion counterclaim, Fathom must demonstrate the "unlawful exercise of ownership,

dominion or control over [Fathom's] personal property . . . in denial or repudiation of [Fathom's]

rights" to such property. Furash & Co. v. McClave, 130 F. Supp. 2d 48, 58 (D.D.C. 2001). But

there is considerable dispute as to whether the funds transferred into Thompson's personal

account, her corporate credit card charges, and her possession of Fathom's computer were

unlawful or authorized. For instance, Thompson argues Mitchell was put on notice of all

transactions during their weekly meetings, Thompson Aff. ¶ 5, while Mitchell contends that these

meetings did not occur until he became concerned about Thompson's job performance during her

last year at Fathom, Mitchell Decl. ¶ 10. Similarly, Thompson alleges that in March 2007,

Mitchell authorized her to pay herself $1000 per week at their regular weekly meetings,

Thompson Aff. ¶¶ 24-25, a pay raise Mitchell denies authorizing, Mitchell Decl. ¶ 22. While

Thompson presents some evidence as to one pay raise outside of those admitted by Fathom, the

record Thompson presents as a whole contains little detail establishing any explicit authorization

by Mitchell for the specific funds or property she asserts she lawfully controlled. See, e.g.,

Thompson Ex. 32 (a June 2007 email from Mitchell noting that Thompson should let him know

how much she would increase her pay to compensate for her additional hours, but without

specifying the exact amount or Mitchell's approval of that amount). A similar analysis applies to

Fathom's breach of fiduciary duty counterclaim, which turns on the same authorization issues as

the conversion counterclaim, as well as whether Thompson complied with Fathom's timekeeping

procedures. Compare Thompson Aff. ¶¶ 13-14 (claiming that Mitchell authorized Thompson to

keep track of her hours in Excel spreadsheets), with Mitchell Decl. ¶¶ 15-17 (denying Mitchell

authorized Thompson to use any timekeeping methods other than Fathom's own timekeeping


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database).

         On summary judgment, all reasonable inferences must be drawn in favor of the non-

moving party. See Anderson, 477 U.S. at 255. Without adequate discovery, summary judgment

is usually not appropriate, even when a non-movant relies on only an affidavit to present genuine

issues of material fact. Homes-Martin v. Leavitt, 569 F. Supp. 2d 184, 208 (D.D.C. 2008); see

also 3D Global Solutions, Inc., v. MVM, Inc., 552 F. Supp. 2d 1, 6 n.2 (D.D.C. 2008) (noting

that "a non-movant's affidavit may suffice to defeat a summary judgment motion if the parties'

sworn statements are materially different."). Consequently, drawing all reasonable inferences in

Fathom's favor, Fathom has presented sufficient evidence to defeat summary judgment against its

conversion and breach of fiduciary duty counterclaims at this early stage of the proceedings.

                                        CONCLUSION

         Summary judgment on Fathom's counterclaims is premature at this point of the

proceedings because genuine issues of material fact remain to be resolved. Accordingly,

Thompson's summary judgment motion will be denied without prejudice. At the close of

discovery, either party may file a new motion for summary judgment. A separate order has been

issued today.

         SO ORDERED.



                                               /s/
                                                    JOHN D. BATES
                                                United States District Judge

Dated:       June 18, 2009




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