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Carter v. Advanced Walk In Urgent Care, LLC

United States District Court, D. Maryland

April 1, 2015

JAMES CARTER Plaintiff,
v.
ADVANCED WALK IN URGENT CARE, LLC, et al. Defendants.

REPORT AND RECOMMENDATION

WILLIAM CONNELLY, Magistrate Judge.

This Report and Recommendation addresses Plaintiff James Carter ("Mr. Carter")'s Second Motion for Entry of Default Judgment. ECF No. 18.[1] Defendants Advanced Walk In Urgent Care, LLC (doing business as Union Multi-Care Advanced Walk-In Urgent Care), Union Multi-Care of Silver Spring, Union Multi-Care/Advanced Walk-In Urgent Care and Ishtiaq A. Malik, M.D. (collectively "Defendants") have not filed a response and the deadline for the response elapsed on February 27, 2014. See Loc. R. 105.2.a.

On June 13, 2014 the undersigned directed Mr. Carter, within thirty days, to supplement the record by affidavit declaring the number of individuals employed by Defendants during the time period relevant to the allegations in the First Amended Complaint. ECF No. 21 at 2 ¶ 5. A copy of the Order was mailed to all Defendants of record. On July 10, 2014 Mr. Carter sought clarification of the undersigned's order or, in the alternative, moved for default judgment. ECF No. 22. Unexpectedly, on July 11, 2014, Ishtiaq A. Malik, the only individual, non-corporate entity Defendant, filed an affidavit affirming three individuals were employed by Advanced Walk In Care, LLC on July 20, 2012. ECF No. 23.

On August 6, 2014 Mr. Carter moved for a scheduling order. ECF No. 24. Two days later, on August 8, 2014, the undersigned granted the motion for a period of ninety days. The undersigned limited discovery to the issue of "the number of individuals employed by Defendants during the time period relevant to the allegations in the First Amended Complaint.' ECF No. 21 at 2 (Order of June 13, 2014, para. 5)." ECF No. 26. Earlier that same day, the undersigned denied without prejudice to renew Mr. Carter's Second Motion for Default Judgment in light of Defendant Advanced Walk In Urgent Care LLC filing an affidavit and Mr. Carter's motion for scheduling order. ECF No. 25.

On November 6, 2014 Mr. Carter filed a motion to compel discovery. ECF No. 27. The undersigned issued an order on December 19, 2014 granting the motion and directing Defendants to answer Mr. Carter's First Interrogatories and First Request for Production of Documents not later than January 21, 2015. ECF No. 28.

On January 20, 2015, Ishtiaq A. Malik, MD on behalf of Defendants, submitted correspondence addressed to the undersigned regarding employment records. Dr. Malik claimed three employees worked under Advanced Walk In Urgent Care in the first and second quarters of 2012.

Having reviewed the filings, no hearing is deemed necessary. See Loc. R. 105.6. For the reasons stated herein, the undersigned recommends that, following the time to object to this Report and Recommendation, Plaintiff's Second Motion for Entry of Default Judgment be DENIED.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff James Carter is deaf. Defendant Advanced Walk In Urgent Care LLC "is an organization that owns, operates, and/or leases a medical facility located at 10801 Lockwood Drive, Suite 140, Silver Spring, MD, 20901, Montgomery County." ECF No. 3 ¶ 3. At the time Mr. Carter filed his First Amended Complaint, Advanced Walk In Urgent Care LLC was registered as a business entity with the Maryland Department of Assessments and Taxation. Id. Defendant Union Multi-Care of Silver Spring "is an organization that owns, operates, and/or leases a medical facility located at 10801 Lockwood Drive, Suite 140, Silver Spring, MD, 20901, Montgomery County. Union Multi-Care of Silver Spring is being sued in the event that it is a separate legal entity." Id. ¶ 4. Defendant Union Multi-Care/Advanced Walk-In Urgent Care "is an organization that owns, operates, and/or leases a medical facility at 10801 Lockwood Drive, Suite 140, Silver Spring, MD, 20901, Montgomery County. Union Multi-Care/Advanced Walk-In Urgent Care is being sued in the event that it is a separate legal entity." Id. ¶ 5. Defendant Ishtiaq Malik, MD, an individual, was Mr. Carter's treating physician during the events described in the First Amended Complaint. Dr. Malik is the registered agent for Defendant Advanced Walk In Urgent Care LLC. "Ishtiaq Malik, MD is being sued in his official capacity in the event that Advanced Walk In Urgent Care LLC, Union Multi-Care of Silver Spring, and Union Multi-Care/Advanced Walk-In Urgent Care are not legal entities, but Ishtiaq Malik, MD is nevertheless liable for their acts and/or omissions." Id. ¶ 6.

On June 15, 2012 Mr. Carter, whose primary means of communication is American Sign Language ("ASL"), placed a call to Advanced Walk In Urgent Care through a video relay interpreting service. Mr. Carter informed the individual answering the telephone that he needed medical care and would require a qualified sign language interpreter. The individual answering the telephone informed Mr. Carter that Advanced Walk In Urgent Care would not provide a sign language interpreter if he came to the facility for care. ECF No. 18-5 at 2-3 (Carter Aff. ¶¶ 9-10).

Believing he was in need of immediate attention due to feeling weak and further knowing that Advanced Walk In Urgent Care accepted his health insurance, Mr. Carter decided to go to Advanced Walk In Urgent Care for medical attention. Mr. Carter lives near Defendants' facility. He arrived at the office approximately one hour after his call. Id. at 3 (Carter Aff. ¶ 11).

Mr. Carter renewed his request for a qualified sign language interpreter upon arrival. He also requested blood work including an HIV test. In response to his first request, a member of Defendants' staff responded in writing, "The Dr. will not pay for interpreter." A qualified sign language interpreter was not provided during Mr. Carter's visit. Instead the staff at Advanced Walk In Urgent Care attempted to communicate with Mr. Carter via writing notes. Id. (Carter Aff. ¶¶ 12-15).

Mr. Carter contends communicating by writing notes is not an effective method of communication because he does not have a strong command of written English. Id. (Carter Aff. ¶ 16). Due to Advanced Walk In Urgent Care's refusal to provide a qualified sign language interpreter, Mr. Carter asserts he was unable to communicate effectively with medical staff about his physical condition. Id. (Carter Aff. ¶ 17). Additionally, due to the lack of a qualified sign language interpreter, Mr. Carter failed to receive from Advanced Walk In Urgent Care adequate information about which tests Advanced Walk In Urgent Care would perform and why those particular tests would be performed. Moreover, due to the lack of a qualified sign language interpreter, Mr. Carter was not fully informed and thus unable to participate in the decisionmaking process regarding his health care. Id. at 4 (Carter Aff. ¶¶ 19-20).

Mr. Carter retuned to Advanced Walk In Urgent Care on June 22, 2012, in accordance with what he believed the office instructed, to discuss the results of his blood work. While at the office Mr. Carter requested a qualified sign language interpreter. Advanced Walk In Urgent Care did not provide the requested qualified sign language interpreter and instead attempted to communicate via writing notes. During this session Mr. Carter learned an HIV test had not been conducted despite his earlier request. Because Advanced Walk In Urgent Care failed to provide a qualified sign language interpreter, Mr. Carter was not fully informed and thus unable to participate in the decision-making process regarding his health care. Id. at 4-5 (Carter Aff. ¶¶ 21-24, 28).

On June 26, 2012 Mr. Carter experienced shortness of breath prompting him to return to Advanced Walk In Urgent Care for medical assistance. Because Advanced Walk In Urgent Care did not have a qualified sign language interpreter, Mr. Carter was unable to communicate effectively with the staff and therefore was unable to understand why he was experiencing shortness of breath. Consequently, he was anxious about his medical condition. Id. at 5 (Carter Aff. ¶¶ 29-30).

On July 20, 2012 Mr. Carter sustained a work-related injury; he sought treatment from Advanced Walk In Urgent Care. Upon arrival Mr. Carter requested, in writing, a qualified sign language interpreter. Mr. Carter wrote the following to a staff member, "Why can't I get Sign Language Interpreter?" ECF No. 18-11 at 2. The staff member responded in writing as follows:

It is too expensive.
I understand that is your right to get one, but it only applies to medical office with 12 employees or more.

Id.

Mr. Carter then wrote in response, "you knew damages of my right in Section of American Disability Act." Id. The staff member replied by writing, "As I said it applies to offices with 12 employees or more. You can check a lawyer if you want." Id. Mr. Carter wrote in response, "I don't have one yet but I can get more information." Id. On this same sheet of paper Mr. Carter expressed his concern about his inability to understand fully what the doctor finds or advises without a qualified sign language interpreter because he (Mr. Carter) does not have a strong command of written English. In response the staff member wrote, "That is why everything is done written. We can keep proof of everything." Id. Because Advanced Walk In Urgent Care failed to provide a qualified sign interpreter, Mr. Carter was not fully informed and thus unable to participate in the decision-making process regarding his health care. ECF No. 18-5 at 6 (Carter Aff. ¶ 38).

On October 19, 2012 Mr. Carter filed a Complaint, see ECF No. 1, which he modified by filing an Amended Complaint on December 10, 2012, see ECF No. 3. Mr. Carter alleges visiting the Advanced Walk In Urgent Care on four occasions in June and July of 2012. On each occasion, Mr. Carter requested and Advanced Walk In Urgent Care failed to provide a qualified sign language interpreter to facilitate Mr. Carter's communications with medical staff. Advanced Walk In Urgent Care opted to communicate with Mr. Carter via writing notes. Mr. Carter, a deaf individual, lacks a strong command of written English and thus is not able to understand fully via this method of communication. Mr. Carter alleges the four Defendants, who are recipients of federal financial assistance since they accept Medicare and Medicaid, violated Section 504 of the Rehabilitation Act of 1973. Specifically, Mr. Carter contends "Defendants have intentionally discriminated against Plaintiff on the basis of his disability by denying Plaintiff auxiliary aids and services necessary to ensure effective communication between Plaintiff and Defendants, equal access, and an equal opportunity to participate in and benefit from Defendants' health care services[.]" ECF No. 3 ¶ 42.

Mr. Carter further alleges he is an individual with a disability pursuant to Title III of the Americans with Disabilities Act and the Defendants are places of accommodation pursuant to the same Act. "Defendants have discriminated against Plaintiff on the basis of his disability by denying Plaintiff auxiliary aids and services necessary to ensure effective communication between Plaintiff and Defendants, equal access, and an equal opportunity to participate in and benefit from Defendants' health care services in violation of Title III of the Americans with Disabilities Act. 42 U.S.C. §§ 12181-12189." Id. ¶ 46.

Subject matter jurisdiction is based on Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794[2] and on Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12182(a)[3]; subject matter jurisdiction therefore is based on federal questions. See 28 U.S.C. § 1331.[4] Personal jurisdiction exists over each Defendant based on residency within this judicial district or transactions occurring within this judicial district. Venue is proper in this judicial district because a substantial part of the events or omissions occurred within the state of Maryland. See 28 U.S.C. § 1391.

Each of the four Defendants was served a "Summons in a Civil Action" on January 8, 2013, see ECF No. 10, such that the Answers of the four Defendants were due January 29, 2013. See Fed.R.Civ.P. 12(a)(1)(A)(i). None of the Defendants filed an Answer or otherwise responded to the First Amended Complaint.[5] On February 5, 2013 Mr. Carter moved for a Clerk's Entry of Default for want of answer or other defense against each Defendant. See ECF Nos. 11-14. That same day the Clerk of Court entered an Order of Default against the Defendants. See ECF No. 15. On February 13, 2013 Mr. Carter moved for a default judgment against the Defendants. See ECF No. 16. The deadline for the Defendants to file a response or opposition to Mr. Carter's Motion for Default Judgment elapsed on March 4, 2013. On July 23, 2013, Judge Grimm denied Mr. Carter's Motion for Default Judgment, without prejudice, "subject to resubmission with a proper analysis of liability." ECF No. 17.

On February 10, 2014 Mr. Carter, for a second time, moved for a default judgment against the Defendants. See ECF No. 18. The deadline for the Defendants to file a response or opposition to Mr. Carter's Second Motion for Default Judgment elapsed on February 27, 2014. In this second motion Mr. Carter withdraws his ADA claim explaining,

Plaintiff's original complaint alleged violations of Title III of the Americans with Disabilities Act in addition to violations of Section 504 of the Rehabilitation Act. In light of Defendants' vehement rejection of the legality of this lawsuit, Plaintiff is fearful that he would not receive adequate medical care from Defendants and has no wish to return to their facilities. Plaintiff therefore withdraws his Title III claim and request for injunctive relief.

ECF No. 18-1 at 2 n.1. Thus, the undersigned shall address the remaining claim, alleged violations of Section 504 of the Rehabilitation Act.

II. DISCUSSION

Federal Rule of Civil Procedure 55(b) governs the entry of default judgments. Pursuant to Rule 55(b), the clerk may enter a default judgment "[i]f the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, " and the defendant is in default for failing to appear and is "neither a minor nor an incompetent person." Fed.R.Civ.P. 55(b)(1). Additionally, when a defendant is an individual, the plaintiff must certify or declare to be true under penalty of perjury whether the defendant is in military service. 50 U.S.C. app. § 521(b)(1) ("In any action or proceeding covered by this section, the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit- (A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.").

The entry of default judgment is a matter within the discretion of the Court. SEC v. Lawbaugh, 359 F.Supp.2d 418, 421 (D. Md. 2005) (citing Dow v. Jones, 232 F.Supp.2d 491, 494 (D. Md. 2002)). As the Court noted in Disney Enterprises, Inc. v. Delane, 446 F.Supp.2d 402 (D. Md. 2006), "[t]he United States Court of Appeals for the Fourth Circuit has a strong policy that cases be decided on the merits.'" Id. at 405 (quoting United States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993)). Nonetheless, "default judgment is available ...


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