United States District Court, D. Maryland
TRUSTEES OF THE HEATING, PIPING & REFRIGERATION PENSION FUND, et al., Plaintiffs,
CLEAN AIR MECHANICAL, INC., et al., Defendants.
K. BREDAR CHIEF JUDGE.
Steamfitters Local Union 602 and the trustees of eight
multiemployer benefit and trust funds, filed suit against
Defendants Clean Air Mechanical, Inc. (“CAM”),
CAM's alleged owner, James Hardesty Jr., and Clean Air
Building Services, LLC (“CABS”), alleging, inter
alia, various violations of Defendants' contribution and
reporting obligations under the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001
et seq., and breach of fiduciary duty. Now before
the Court are three motions filed by Plaintiffs: a motion for
leave to amend their complaint (Mot. Amend, ECF No. 60); an
unopposed motion to compel Defendants CAM and Hardesty Jr. to
respond to discovery requests (Mot. Compel, ECF No. 63); and
a motion for a show cause order with respect to CAM's
failure to comply with the local rule requiring corporate
defendants to enter an appearance of new counsel within
thirty days of their counsel's withdrawal (Mot. Show
Cause, ECF No. 69 (citing Local R. 101.2 (D. Md. 2016))). No.
hearing is required. See Local R. 105.6 (D. Md.
2016). For the reasons set forth below, the Court will grant
filed a Complaint on December 14, 2017, seeking unpaid fund
contributions, liquidated damages, and other forms of relief,
including an order permitting a payroll audit to determine
the amount of damages owed by Defendants. (Compl. at 14-15,
ECF No. 1.) After initial failures to answer or otherwise
respond, the Clerk entered default against all Defendants on
February 12, 2018. (ECF No. 17.) Plaintiffs then moved for
partial default judgment against CABS on their claim for an
order to permit a payroll audit. (ECF No. 18.) CABS opposed
the motion and filed a motion to dismiss for insufficient
service. (ECF Nos. 20 and 21.) Eventually, the entry of
default was vacated (ECF No. 24), and both CABS's motion
to dismiss and Plaintiffs' motion for partial default
judgment were withdrawn by the parties (ECF Nos. 32 and 33).
2018, this Court issued a scheduling order setting pretrial
deadlines. (ECF No. 46.) Under that Order, motions to amend
the pleadings were due by August 6, 2018, and discovery was
set to close on November 5, 2018. (Id. at 2.)
Discovery was later extended until January 2019 in light of
the pending motions addressed by this ruling. (ECF No. 66.)
18, 2018, shortly after issuance of the scheduling order,
counsel for CAM and Hardesty Jr. filed a motion to withdraw.
(ECF No. 50.) Exhibits attached to counsel's motion
indicated that both Defendants were provided with the
seven-day notice required by Local Rule 101.2 and advised
that, as a corporate Defendant, CAM could not appear pro
se under Local Rule 101.2(b). (ECF No. 50-1.) The Court
granted counsel's motion (ECF No. 51) and, following its
usual practice, mailed notice of the withdrawal, including a
copy of Local Rule 101.2, to Hardesty Jr. (ECF No. 52). To
date, no counsel has appeared on behalf of CAM or on behalf
of Hardesty Jr. On November 28, 2018, Plaintiffs filed a
motion asking the Court to order CAM to show cause why
default should not be entered against it for failure to enter
an appearance of counsel as required by Local Rule 101.2(b).
(ECF No. 69.)
to the motions and supporting exhibits currently before the
Court, Plaintiffs served requests for discovery, including
interrogatories and requests for production, upon all
Defendants on July 10, 2018. (Local Rule 104.7 Certificate
¶ 3, ECF No. 63-2 [hereinafter
“Certificate”].) Defendants CAM and Hardesty Jr.
did not respond or object to these requests, before or after
the withdrawal of their counsel. (Id. at ¶ 4.)
After multiple attempts to confer with them (id. at
¶¶ 4-8), Plaintiffs filed a motion to compel, which
also sought an award of attorneys' fees. (Mot. Compel
Mem. Supp. at 3, ECF No. 63-1.) No. response in opposition
responded to Plaintiffs' discovery requests on August 17,
2018. (See Discovery Responses, Reply Mot. Amend
Exhs. A and B, ECF Nos. 62-1 and 62-2.) Based on CABS's
responses, Plaintiffs moved for leave to amend their
Complaint and add Diane Hardesty, CABS's owner and the
mother of Hardesty Jr., as an individual defendant in the
case. (Mot. Amend Mem. Supp. at 1, 3, ECF No. 60-3.) CABS
opposed the motion. (ECF No. 61.)
Motion to Amend
party seeks to amend a pleading after the expiration of
deadlines contained in a scheduling order, it must satisfy
the requirements of both Rule 16(b)(4) and Rule 15(a)(2).
Cook v. Howard, 484 Fed.Appx. 805, 814-15 (4th Cir.
2012) (per curiam) (applying a two-prong test); United
States v. Hartford Accident & Indemnity Co., Civ.
No. JKB-14-2148, 2016 WL 386218, at *5 (D. Md. Feb. 2, 2016)
Rule 16, a motion to modify a scheduling order may be granted
only upon a showing of “good cause.” Fed.R.Civ.P.
16(b)(4). The burden to demonstrate good cause rests on the
moving party. Hartford Accident & Indemnity,
2016 WL 386218, at *5. Good cause exists if “deadlines
cannot reasonably be met despite the party's
diligence.” Cook, 484 Fed.Appx. at 815
(quoting 6A Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice & Procedure § 1522.2 (3d
ed. 2010)). Courts consider “whether the moving party
acted in good faith, the length of the delay and its effects,
and whether the delay will prejudice the non-moving
party.” Elat v. Ngoubene, 993 F.Supp.2d 497,
520 (D. Md. 2014) (citing Tawwaab v. Va. Linen Serv.,
Inc., 729 F.Supp.2d 757, 768-69 (D. Md. 2010)).
Modification should not be permitted where the movant
“has not acted diligently” to comply with the
schedule. Cook, 484 Fed.Appx. at 815 (quoting 6A
Wright & Miller § 1522.2).
permits amendment “with the opposing party's
written consent or with the court's leave, ” which
should be “freely [granted] when justice so
requires.” Fed.R.Civ.P. 15(a)(2). Leave to amend should
be denied “only where it would be prejudicial, there
has been bad faith, or the amendment would be futile.”
Nourison Rug Corp. v. ...