United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge
Farhad Radfar, on behalf of himself and others similarly
situated, brings this action against his former employer.
Defendants Rockville Auto Group. LLC. Tuba Hamedi. and
Abdullah Razaq (collectively. "Defendants") for
failure to pay overtime and minimum wages as required by the
Fair Labor Standards Act. 29 U.S.C. § 201 el
seq. ("FLSA") and the Maryland Wage and Hour
Law. Md. Code. Ann. Lab. & Empl § 3-501 el
seq. ("MWHL"). Now pending before the Court is
Plaintiffs Motion for Leave to File an Amended Complaint. ECF
No. 14. and Motion to Conditionally Certify a Collective
Action. ECF No. 15. No hearing is necessary. Loc. R. 105.6 (D.
Md. 2016). For the following reasons. Plaintiffs Motion to
Amend is denied, in part, and granted, in part, and
Plaintiffs Motion to Conditionally Certify a Collective
Action is denied.
operate a car dealership in Gaithersburg. Maryland and
"consistently advertised, bought and sold vehicles to
vendors and clientele outside of the State of Maryland."
ECF No. 14-1 ¶ 6. Plaintiff worked for Defendants from
approximately September 2014 to May 2016. Id. ¶
12. Throughout his employment. Plaintiff alleges that he
performed non-managerial and non-exempt work including
purchasing parts and vehicles at auction with company funds,
transporting vehicles to other lots and between vendors and
purchasers, and delivering purchased vehicles to customers.
Id. ¶ 13. Plaintiff alleges that Defendants
authorized and required Plaintiff to work approximately 55
hours each week but did not pay Plaintiff overtime and
minimum wages as required by Federal and State law.
Id. ¶ 14. Plaintiff alleges that he was
compensated at a standard weekly rate, resulting in the
following effective hourly rates: $5.45 per hour from
September 2014 through April 2015: $6.36 per hour from April
2015 through August 2015: and $7.27 per hour from August 2015
through May 2016. Id. ¶¶
17-19. Plaintiff alleges that although he was a
long-term employee. Defendants paid Plaintiff as a "1099
employee" and did not classify Plaintiff as a "W-2
employee" or provide him with paystubs and paychecks
until January 2016. Id. ¶ 15.
also alleges that Defendants failed to pay other similarly
situated employees ("Putative Plaintiffs") overtime
and minimum wages as required by Federal and State law.
Id. ¶¶ 24. 26. According to Plaintiff.
Defendants exercised a high degree of control over Plaintiffs
and Putative Plaintiffs" employment, including hiring,
firing, setting wage rates, sending paychecks, determining
hours of employment and job duties, and establishing rules
and regulations. Id. ¶¶ 28. 29. 31.
initially brought claims for violations of the minimum wage
and overtime provisions of the FLSA and MWHL on behalf of
himself (Count 1. III. V-XI) and claims for violations of the
minimum wage and overtime provisions of the FSLA on behalf of
Putative Plaintiffs (Count III. V). ECF No. 1,  Defendants Hamedi
and Razaq filed an Answer on November 11. 2016. Plaintiff
filed a Motion for Leave to Amend his Complaint and Motion to
Conditionally Certify a Collective Action on December 22.
2017. ECF Nos. 14: 15. Defendants did not file a response in
opposition to either Motion, and. on February 5. 2018.
Plaintiff filed a Renewed Motion. ECF No. 16. On February 20.
Defendants filed a Response in Opposition to Plaintiffs
Renewed Motion-sixty days after Plaintiff filed his initial
Motions and fifteen days after his Renewed Motion. ECF No.
to Local Rule 105.2(a). "all memoranda in opposition to
a motion shall be filed within fourteen (14) days of the
service of the motion." Defendants did not file a timely
memorandum in opposition, seek leave of Court for additional
time, or provide any justification for their failure to do
so. See H & W Fresh Seafoods, Inc. v. Schulman,
200 F.R.D. 248. 252 (D. Md. 2000) aff d 30 F.
App"x 75 (4th Cir. 2002} (noting that because Rule
105.2(a) does not specify the consequence to be administered
if the deadline is not met. the Court may decide whether to
consider an untimely opposition): Curtis v. Evans,
No. DKC 2003-2774. 2004 WL, 1175227. at * 1 (D. Md. May 27.
2004) (granting motion to strike a plaintiffs untimely
opposition that fails to "explain the reasons, if any,
for his tardy opposition"). Therefore, the Court will
not accept Defendants* Opposition in Response. ECF No. 17.
and will consider Plaintiffs Motions to be uncontested.
Plaintiffs motions are uncontested, the Court must exercise
its judgment before granting them. See. e.g.. Issa v.
Comp USA, 354 F.3d 1174. 1178 (10th Cir. 2003)
("even if a plaintiff does not file a response to a
motion to dismiss for failure to state a claim, the district
court must still examine the allegations in the plaintiffs
complaint and determine whether the plaintiff has stated a
claim upon which relief can be granted"): Brawn
v, Blue Cross and Blue Shield of North Carolina. 226
F.R.D. 526. 527 (M.D. N.C. 2004) (reviewing the merits of an
uncontested motion to dismiss "in the interest of
justice." even though local rules permitted the court to
grant the uncontested motion without further notice). Upon
review, the Court finds that the Motions do not meet the
requisite legal standards and will be denied.
Motion for Leave to Amend
moves for leave to amend his Complaint to account "for
the lack of rebuttal documentation from the defendant that
have occurred since the original complaint was filed."
ECF No. 14 at 1. Plaintiffs motion does not make clear what
developments necessitate an Amended Complaint, and Plaintiff
has not filed "a copy of the amended pleading in which
stricken material has been lined through or enclosed in
brackets and new material has been underlined or set forth in
bold-laced type" as required by the Court's Local
Rules so that the Court can easily decipher what additions
Plaintiff seeks to make. See Loc. R. 103.6(c) (D.
Md. 2016). Regardless, the Court recognizes two substantive
changes in Plaintiffs Amended Complaint. First. Plaintiff
adds a new claim for breach of contract. ECF No. 14-1 at 22
(Amended Complaint Count XIII). Plaintiff alleges that he
lent Defendants $75, 000 pursuant to a promissory note
executed in 2009 and seeks recovery of the remaining balance
of $44, 000 due on the note. ECF No. 14-1 at 7. Second.
Plaintiff adds a new claim entitled "Rockville Auto
Group's Misclassification of Its Service Agents as
Independent Contractors Deprived Them of Tax Benefits and
Other Employee Benefit Rights." EGF No. 14-1 at 8.
to Federal Rule of Civil Procedure 15(a)(2), plaintiffs may
amend their complaint with the court's leave, and
"[t]he court should freely give leave when justice so
requires." "'[T]he general rule is that leave
to amend a complaint under Federal Rule of Civil Procedure
15(a) should be freely given, unless the amendment would be
prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would have
been futile." Steinburg v. Chesterfield Cnty.
Planning Comm'n. 527 F.3d 377. 390 (4th Cir. 2008)
(citations omitted). Because the Court does not have
jurisdiction over Plaintiffs proposed breach of contract
claim, the amendment is futile and will be denied as to that
Court does not have subject matter jurisdiction over
Plaintiffs breach of contract claim under 28 U.S.C. §
1331 because the claim does not raise a federal question. Nor
does the Court have jurisdiction under § 1332-the amount
in controversy is less than $75, 000 and the parties do not
have complete diversity because both Plaintiff and Defendant
Rockville Auto Group. LLC are Maryland citizens. Therefore,
the Court may only hear Plaintiffs breach of contract claim
if it both has and chooses to exercise supplemental
jurisdiction under § 1367. which provides that:
in any civil action of which the district courts have
original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so
related to claims in the action within such original
jurisdiction that they form ...