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Hill v. B. Frank Joy, LLC

United States District Court, D. Maryland

August 26, 2016

HARRY HILL, Plaintiff,
B.FRANK JOY, LLC, Defendant.


          THEODORE D. CHUANG, United States District Judge

         Pending before the Court is the Motion to Disqualify Counsel filed by Defendant B. Frank Joy, LLC ("B. Frank Joy"). B. Frank Joy argues that counsel for Plaintiff Harry Hill should be disqualified because of counsel's representation of, and ex parte contact with, a former B. Frank Joy employee. The Motion is fully briefed and ripe for disposition. No hearing is necessary to resolve the issues. See D. Md. Local R. 105.6. For the reasons set forth below, the Motion is DENIED.


         I. Hill's Termination

         According to the Second Amended Complaint, Hill began working for B. Frank Joy as a dump truck driver on May 5, 2014. On June 12, 2014, Hill complained to B. Frank Joy management that the company was violating federal law by failing to compensate employees for all time worked and to pay overtime wages. He later contacted a former B. Frank Joy human resources staff member to ask whether other employees had registered similar complaints in the past. On August 13, 2014, Crystal Louis, B. Frank Joy's Human Resources Manager, informed Hill by email that he was suspended for alleged harassment of the former employee. On August 19, 2014, Louis told Hill that he could return to work. Hill responded by email the next day stating that, while he was not resigning, he could not return to work yet because he needed counseling as a result of B. Frank Joy's "retaliation"" Mot. to Disqualify Ex. 2, Peace Order & Pet. at 6.

         On August 27, 204, Louis filed a petition for a peace order against Hill with the District Court of Maryland for Prince George's County. She claimed that Hill had been suspended for stalking a former employee and that emails sent by Hill made her fear that he might harm her. The court issued a temporary peace order that day. The following day, Louis emailed Hill to inform him that he was fired.

         B. Frank Joy terminated Louis on October 30, 2014. Hill alleges that a few months after he was fired, Louis told him that certain B. Frank Joy officials had forced her to seek the peace order and that she had not felt threatened by Hill.

         II. Hill's Claims Against B. Frank Joy

         On April 20, 2015, Hill filed a putative collective and class action against B. Frank Joy, Hill v. B. Frank Joy, LLC, No. TDC-15-1120 ("Hill I "), alleging wage and hour violations under the Fair Labor Standards Act ("FLSA"), the Maryland Wage and Hour Law, and the Maryland Wage Payment Collection Law. He also filed a two-count complaint initiating the present case ("Hill II"), alleging that, by forcing Louis to seek the peace order, B. Frank Joy aided and abetted Louis's malicious use of process and that Hill's termination violated the FLS Ass prohibition on retaliation. On November 25, 2015, Hill's original counsel filed a Motion to Withdraw from both Hill 1 and Hill II, which the Court granted on January 24, 2016. On February 23, 2016, Christine A. Dixon of C. Dixon Global Law, PLLC entered a Notice of Appearance on behalf of Hill in both cases. The next day, Dixon submitted Motions for Admission Pro Hac Vice on behalf of Larry A. Strauss and Willie E. Gary of Gary, Williams, Parenti, Watson, and Gary, PLLC.

         According to Dixon, Strauss, and Gary (collectively, "Plaintiffs Attorneys"), Louis contacted them on February 27, 2016 to offer to assist in Hill's litigation. Louis called again in late April, requesting to become a plaintiff in Hill 1. On April 26, 2016, Hill and Louis signed a form entitled "Multi-Party Representation and Waiver of Potential Conflicts." Pl.'s Resp. Mot. to Disqualify Ex. A, Waiver at 1. The waiver stated that the two law firms did not perceive any conflict of interest in representing both Hill and Louis in Hill I "because the testimony and arguments to be advanced in the subject litigation by [Hill and Louis] are not substantially different." Id. The waiver promised that Plaintiffs Attorneys would bring any future conflicts of interest to Hill's and Louis's attention.

         On May 31, 2016, Hill filed a third complaint against B. Frank Joy, Hill v. B. Frank Joy, LLC, No. TDC-16-1707 ("Hill III"). That action alleges that B. Frank Joy discriminated and retaliated against Hill in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The complaint attached a declaration from Louis in which she accused B. Frank Joy of discriminating against African American employees, violating federal immigration law, and failing to compensate employees properly. She also stated that her supervisors instructed her to find a reason to fire Hill because he complained about workplace practices.

         III. Attorney-Client Privilege

         B. Frank Joy asserts that during her employment, Louis was exposed to communications protected by the attorney-client privilege that related to Hill's suspension and termination. In response to this allegation, Hill submitted a declaration from Louis in which she denies having ever met B. Frank Joy's attorneys, having participated in any in-person or telephonic meetings with certain B. Frank Joy officials and an attorney, or having seen any bills from the company's attorneys. She notes that she did update an individual named Maury about Hill's case over the phone, but she was not told that Maury was an attorney, and she never provided or received confidential attorney-client information during these conversation..

         In turn, B. Frank Joy submitted two declarations from its Controller, Janice Slater, who supervised Louis. Slater claims that Louis was aware that Maury Baskin, an attorney with Littler Mendelson, P.C., served as B. Frank Joy's outside counsel on employment matters. Slater asserts that she directed Louis to contact Baskin to seek advice on Hill's suspension and termination, and that Louis did so. In support of this claim, Slater provided a privilege log and certain emails, some redacted, which together suggest that Louis knew that Baskin was outside counsel for B. Frank Joy and that she communicated with him regarding Hill's suspension ...

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