United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
In March 2013, plaintiff Maureen Uche, who is now self-represented,  filed claims against defendants Montgomery Hospice, Inc., her former employer, and Robert Washington, a former supervisor, for violations of the Fair Labor Standards Act and State wage claims. ECF 1. Since then, plaintiff has repeatedly refused to comply with court orders issued in an attempt to move her case forward. Among other things, she twice failed to attend scheduled depositions. And, as to the most recently scheduled deposition on July 10, 2014, she ignored four court orders compelling her presence.
Several matters are pending, including defendants' "Motion to Dismiss for Failure to Comply with Court Orders" ("Motion, " ECF 81), which is defendants' third motion to dismiss. In their supporting memorandum ("Memo, " ECF 81-1), defendants seek dismissal of Uche's claims, with prejudice, under Fed.R.Civ.P. 37(b)(2), Memo at 6, as well as an award of "attorney's fees and costs incurred in preparing for and attending the Court ordered July 10[, 2014, ] deposition and in preparing th[e] Motion." Id. at 14. Plaintiff filed an opposition ("Opposition, " ECF 85; 85-1); and defendants filed a reply (ECF 87). The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will grant the Motion, with modified relief.
Uche's first deposition was scheduled for October 21, 2013. Prior to October 21, 2013, defendants sent several letters to Uche regarding her deposition. ECF 34-2 at 11, 13-20. Nevertheless, Uche failed to attend the duly noted deposition. See Deposition Transcript of Oct. 21, 2013, ECF 34-2 (failure to attend); Notice of Deposition, ECF 34-2 at 17. Defendants filed their first motion for sanctions two days later. See ECF 32. Uche did not expressly oppose that motion in writing. See generally Docket, ELH-13-00878. However, she attended a hearing on the motion (and other motions) held by Magistrate Judge Day on January 24, 2014. See Transcript of Motions Hearing, ECF 59.
At the hearing, Uche claimed that defendants never responded to her letter of September 12, 2013 ( see ECF 34-2 at 12), in which she offered October 21, 2013, as a date on which she was available, and that "it was a [de]position that was planned to punish the Plaintiff for filing the motion to compel." Id. at 48. Judge Day denied the sanctions motion. Id. at 52. He stated: "I am left with the conclusion that while [Uche's behavior] looks and smells like bad faith, it is merely bad misunderstanding of what is required, very bad misunderstanding, particularly, in light of all the efforts that the defense made to try to point out to you your obligations and/or duty to respond appropriately." He reminded Uche of her obligation to comply with the Local Rules and with "all other applicable Federal Rules of Procedur[e]." Id. at 52 (citing Local Rule 101.1). In consultation with the parties, Judge Day then set a new time, date, and location for Uche's deposition. Id. at 52-54.
Uche attended this second scheduled deposition, on February 4, 2014. See Deposition Transcript of Feb. 4, 2014, ECF 53-4. However, she repeatedly stonewalled defendants' questions on basic matters. Id. at 26:3 to 50:6 (refusing to answer questions about her resume); 187:9 to 206:4 (refusing to answer questions about how she estimated the total number of hours allegedly performed in excess of forty each week over the course of her employment). Twice, Judge Day was consulted by phone and ordered Uche to answer defendants' questions; twice, Uche continued to stonewall defendants' questions. Id.
Soon after, on March 3, 2014, defendants submitted their second motion for sanctions, "Motion for Sanctions/Dismissal and to Compel Deposition Answers and to Extend the Dispositive Motions Deadline, " ECF 53, and a supporting memorandum, ECF 53-1. Thereafter, Uche submitted a "Motion for Sanctions of Defense Attorney, " ECF 55; a response in opposition, ECF 56; a "Certificate of Good Faith Unable to Confer, " ECF 57; a "Motion for Protective Relief with Respect to Deposition and to Quash the Defendants' Good Faith Certification and Motion to Compel Deposition Answers, " ECF 58; and a "Motion for Contempt Finding and Violation of the Honorable Judge Day's January 24, 2014 Order (ECF 49) and for a Second Order to Enforce Document Production, " ECF 60. Uche filed supporting memoranda and exhibits in each instance. Defendants filed an opposition to the motion for sanctions, ECF 61, and responses in opposition to Uche's other motions ( i.e., ECF 55, 58, and 60). See ECF 62, 63, 64 (defendants' responses). Judge Day denied Uche's motions (ECF 55, 58, and 60) as baseless. See Paperless Orders, ECF 66, 67. He scheduled a hearing on defendants' second sanctions motion for July 1, 2014. ECF 68.
Uche did not attend the hearing on defendants' second motion for sanctions. See Transcript of Hearing on July 1, 2014, ECF 80 at 3. Judge Day recounted at the hearing that his chambers attempted to contact Uche by mail and by phone before the hearing, but received no response. Id. at 3-4. He stated: "I am - very troubled by the conduct set forth in the transcript provided to me, that is the transcript of Ms. Uche's Deposition." Id. at 5. He read some of defendants' questions and Uche's non-responses into the record, id. at 5-6, and noted that he did "not see anything objectionable about 99.9 percent" of defendants' questions. Id. at 7. He concluded: "This goes on page after page. It is a - very sad. I can pick and click any page in that Deposition, something terrible turns up. To make a long story short, I am granting the Motion for Sanctions." Id. at 6.
Judge Day also granted defendants' request for a new court-ordered deposition, and set July 10, 2014, as the date. Id. at 14. But, he informed defendants that he did not have authority to dismiss the case; the trial judge would have to rule on that request. Id. at 4-5. With respect to defendants' motion for sanctions, Judge Day conditionally granted defendants' motion for fees and expenses, stating that he was not "inclined" to award them if the district judge granted defendants' motion to dismiss, but that he would accept an affidavit in support of fees and expenses requesting specific amounts thirty days after the district judge's ruling on the motion to dismiss. Id. at 9. He also indicated he would accept affidavits in support of fees and expenses related to defendants' work in defense of three other motions filed by Uche, which he had denied. Id. at 12.
The Paperless Order memorializing the hearing, ECF 70, is dated July 1, 2014. It states: "PAPERLESS ORDER granting 53 Motion for Sanctions for the reasons stated on the record during today's hearing. Plaintiff failed to appear at the hearing. Plaintiff shall submit to a second deposition at the Courthouse on July 10, 2014 beginning at 10:00 am. Plaintiff shall be available for 7 hours given that the purpose of the first deposition was completed frustrated. The Court will be available to rule upon all objections and responses during the deposition. Defendant's request for fees and expenses is granted, in an amount to be determined after the filing of its affidavit in support. Defendant shall have up to 30 days to file it[s] affidavit following the Court's ruling on it[s] motion for dismissal. The Court applies the same deadlines regarding Defendant's request for fees and expenses under ECF 55, 58 and 60. Signed by Magistrate Judge Charles B. Day on 07/01/2014. (Day, Charles) (Entered: 07/01/2014)."
On July 2, 2014, I denied defendants' second motion to dismiss, "without prejudice to defendants' right to renew the Motion if plaintiff fails to appear at the deposition on July 10, 2014." ECF 73. In my Memorandum to Counsel and Ms. Uche, I stated: "To be clear, and to avoid any confusion, this Memorandum constitutes an ORDER to plaintiff to appear at the Greenbelt Courthouse on July 10, 2014, at 10:00 a.m., in Magistrate Judge Day's Courtroom.... In the meantime, I will deny [defendants' second motion to dismiss] (ECF 53), without prejudice to defendants' right to renew the Motion if plaintiff fails to appear at the deposition on July 10, 2014."
Uche submitted a motion on July 3, 2014, entitled "Motion Objecting to the Court's Orders for Deposition (ECF 70 and 73) and for Reconsideration of Orders (ECF 66 and 67) with a renewed Motion for Protective Order and Motion to Quash the Defendant's Video Deposition Notice (Exhibit 1)." ECF 74. In her supporting memorandum (ECF 74-1), she urged the Court "to cancel the July 10, 2014 deposition and any and all future depositions...." Uche argued: "Since Defendant Robert Washington remains un-deposed, deposing Plaintiff a second time is unjust, ugly, and unwarranted. Plaintiff appearing for an additional seven (7) hours of deposition only aims at giving the Defendants unfair advantage in this case." ECF 74 at 1. In her memorandum, she reiterated her belief that it is "simply unfair" to depose her again while defendant Washington "remains un-deposed, " ECF 74-1 at 3, and she set forth a number of other unpersuasive arguments. See, e.g., id. at 2 ("Plaintiff respectfully asks this Honorable Court to amend the orders for deposition because Federal Rules of Civil Procedure 56(e) authorizes the Court to accommodate changes in intervening laws. Spiritual laws and instructions from the Lord God are important here to Plaintiff and now serve as an intervening law in this instant case."). She also indicated that she may never make herself available for a second deposition. Id. ("Plaintiff... has stated repeatedly... that she will be unavailable for Depositions after February 4th 2014.").
On July 8, 2014, I denied Uche's motion of July 3, 2014. See ECF 75. For "reasons previously stated, " I deemed the deposition "appropriate." Id. And, I ordered defense counsel "to promptly transmit" the content of the Order to plaintiff, "either by ...