United States District Court, D. Maryland, Southern Division
J. HAZEL, United States District Judge
Marita I lendricks ("Plaintiff* or
"Hendricks") filed suit on August 20. 2014 against
her employer, the Quikrete Companies ("Defendant"
or "Quikrete"). alleging various violations under
Title VII of the Civil Rights Act of 1964. the Americans with
Disabilities Act. and the Equal Pay Act. The case was stayed
on July 29, 2015, and the matter was referred to Magistrate
Judge Charles B. Day for mediation. ECF No. 23. Now pending
before the Court is Defendant's Motion to Dismiss for
Lack of Prosecution. ECF No. 37. and Plaintiffs Motion to
Lift Stay. ECF No. 38. No hearing is necessary. See
Loc. R. 105.6 (D. Md. 2016). For the following reasons, the
Court denies Defendant's Motion to Dismiss for Lack of
Prosecution and grants Plaintiffs Motion to Lift Stay.
filed an amended Charge of Discrimination with the Equal
Employment Opportunity Commission ("EEOC") on May
30. 2012, and the EEOC issued its final Determination on
March 31, 2014. ECF No. 1 ¶¶ 5-7. Hendricks
received her Notice of Right to Sue on May 22. 2014.
id ¶ 8. and filed the instant Complaint in this
Court on August 20. 2014. ECF No. 1. Defendant tiled an
Answer to the Complaint on November 25. 2014, ECF No. 10. the
Court entered a Scheduling Order. ECF No. 15. and the parties
proceeded to engage in "some written discovery."
see ECF No. 37-1 at 2. On July 24.2015. the parties
jointly moved the Court to stay the case and refer the matter
to a Magistrate Judge for a settlement conference. ECF No.
22; ECF No. 23.
Day scheduled a settlement conference for October 14. 2015.
ECF No. 25. However, on September 30. 2015. Plaintiffs
counsel Jeanelt Henry informed Defendant's counsel that
she intended to withdraw, and did so on October 14. 2015.
See ECF No. 37-4 at 3; ECF No. 27. Following a
conference call between the parties and Judge Day on October
7. 2015. the settlement conference was cancelled.
See ECF No. 37-1 at 3: ECF No. 37-6 at 2. Hendricks
was advised that she could participate in the settlement
conference without an attorney. ECF No. 37-8 at 2. On January
5. 2016, the settlement conference was rescheduled for
February 12. 2016. ECF No. 32. but Hendricks contacted Judge
Day's chambers on January 18. 2016. notifying Judge Day
that she had not obtained a new attorney, and requesting a
continuance until she could obtain legal representation. ECF
No. 37-9 at 2.
a telephone status conference with this Court on January 27.
2016. the Court provided Plaintiff until March 2. 2016 to
retain replacement counsel. See ECF No. 34. On March
2. 2016, Plaintiff advised the Court via telephone conference
that she had retained counsel. See ECF No. 37-1 at
4. However, Plaintiffs new lawyer, Torrance Colvin. did not
enter his appearance with the Court until May 18. 2016. ECF
No. 36. Defendant's counsel reached out to Mr. Colvin on
May 18. 2016. inquiring as to whether Ms. Hendricks would be
"'still amenable to holding a settlement
conference." ECF No. 37-10 at 2. Mr. Colvin responded on
July 5. 2016. slating that "Ms. Hendricks would like to
proceed forward. Is your client willing to consent to a
motion to lift the current stay of discovery?" ECF No.
37-11 at 3. Defendant's counsel replied that "ft]he
case was in a holding pattern in order for your client to
retain counsel to represent her at the settlement
conference." Id., Plaintiff allegedly did not
respond to this email or to a follow-up email. ECF No. 37-1
response to correspondence from this Court on August 18.
2016. Mr. Colvin stated via email on August 18. 2016 that
"[h]aving had extensive conversation with Plaintiff, it
is her intention to proceed forward without mediation at this
point in time. Plaintiff would like for the stay to be
lifted." ECF No. 37-13 at 2. The Court then directed
Counsel to "file a status report on the docket."
Id. Plaintiff did not file a status report. Instead,
it was not until February 2, 2017 that Mr. Colvin emailed
Defendant's counsel, indicating that Plaintiff
"intends to file a Motion to Lift the Stay in this case.
Does Defendant consent?" ECF No. 37-14 at 2. On that
same day. Defendant filed the presently pending Motion to
Dismiss for Lack of Prosecution. ECF No. 37. and Plaintiff
also filed a Motion to Lift Stay. ECF No. 38. In the Motion
to Lift Stay, counsel for Plaintiff further explained that:
Undersigned counsel's father was diagnosed with stage
four cancer on July 23. 2016. Undersigned counsel spent much
of the next three months prior to his father's passing on
October 26. 2016 in Boston at Dana Farber Cancer Institute.
Due to travel and lack of adequate staff, undersigned counsel
did not immediately file a motion to lift the stay.
ECF No. 38 at 2.
Fed.R.Civ.P. 41(b). the Defendant "may move to dismiss
the action or any claim against it." where the Plaintiff
has failed to prosecute the action or failed to comply with
the Rules or the Court's orders. Fed.R.Civ.P. 41(b).
Unless otherwise stated, dismissal under Rule 41(b)
"operates as an adjudication on the merits." that
is, with prejudice. Rahim. Inc. v. Mindboard. Inc.,
No. CV GLR-16-1155. 2017 WL 1078409. at *2 (D. Md. Mar. 22.
2017) (quoting Fed.R.Civ.P. 41(b)). A dismissal with
prejudice under Rule 4Kb) is "a harsh sanction which
should not be invoked lightly." particularly because the
Fourth Circuit recognizes "the sound public policy of
deciding cases on their merits." Id. (citing
Davis v. Williams. 588 F.2d 69. 70 (4th Cir. 1978)).
Accordingly, the Court must consider four factors before
dismissing a case for failure to prosecute: "(1) the
plaintiffs degree of personal responsibility; (2) the amount
of prejudice caused the defendant: (3) the presence of a
drawn out history of deliberately proceeding in a dilatory
fashion: and (4) the effectiveness of sanctions less drastic
than dismissal." Hilling v. C.I.R.. 916 F.2d
171. 174 (4th Cir. 1990).
the first and third factors together, the record does not
demonstrate substantial "personal responsibility"
on the part of Hendricks, nor does it show the "presence
of a drawn out history of deliberately proceeding in a
dilatory fashion." Although Defendant claims that
Hendricks personally failed to respond to two emails from
Defendant's counsel to Judge Day where Hendricks was
copied. ECF No. 37-1 at 3-4. the vast remainder of the cited
delays arose from the evidently unexpected withdrawal of
Hendricks" first attorney on October 14, 2015.
See ECF No. 37-8 at 3 (Hendricks stating that
"fijt's been extremely difficult with my former Arty
suddenly deciding after one year into it to Quit!" in an
email dated December 11. 2015): ECF No. 37-9 at 2 (Hendricks
noting "the abrupt way Ms. Henry abandon[ed] my case
after handling for more than 1 year" and expressing
intent "to continue this case" in an email dated
January 18. 2016). "A dismissal sanction is usually
inappropriate when it unjustly penalizes a blameless client
for the attorney's behavior." Hilling. 916
F.2d at 1 74.
courts in this jurisdiction have found that "failure to
secure counsel because of financial inability is not. . .
dilatory conduct by [Plaintiff] under the third Rule 41(b)
factor." Rahim. Inc. v. Mindboard. Inc., No. CV
GLR-16-1155, 2017 WL 1078409. at *2 (D. Md. Mar. 22. 201 7);
see also Ulyssix Techs.. Inc. v. Orbital Network Eng g,
Inc., No. ELH-10-2091. 2011 WL 5555853. at * 1, 3 (D.
Md. Nov. 15. 2011) (holding that a party's financial
inability to secure replacement counsel was not
"accompanied by a degree of culpability or prejudice to
other parties" such that would support dismissal with
prejudice). The record here shows that Hendricks was trying
to acquire legal representation, but was experiencing
"difficulties [particularly] at this time of the
year." ECF No. 37-8 at 3. The cases cited by Defendant,
see ECF No. 37-1 at 7. are inapposite, as they
involve situations where a party failed to comply with a
scheduling order or respond to a Motion to Dismiss. Lacey
v. Colvin. No. CIV. TMD 14-1837. 2015 WL 5602878. at *2
(D. Md. Sept. 22. 2015). or "failed to engage in any
form of meaningful discovery." Van Gorkom v.
Deutsche Bank. No. C1V.WDQ-04-2802. 2007 WL 5065533. at
*2 (D. Md. July 12, 2007). Indeed, in this case, there can be
no allegation that Plaintiff has failed to participate in
discovery, as the original scheduling order in this case has
been stayed. See Rahim. Inc. v. Mindboard. Inc.. No.
CV GLR-16-1155. 2017 WL 1078409. at *2 (D. Md. Mar. 22. 2017)
(rejecting arguments that Plaintiff was acting in a dilatory
fashion for declining Defendants* attempts to schedule
depositions because Plaintiff was under no obligation to
comply until Court entered a scheduling order).
while Hendricks may have been less than diligent in
responding to some communications during her time acting as a
pro se litigant, the record as a whole does not
establish a degree of personal responsibility warranting
dismissal of her case. ...