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Holmes v. Westfield America, Inc.

United States District Court, D. Maryland

March 14, 2019

ALEXIS HOLMES, et al.
v.
WESTFIELD AMERICA, INC., et al.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE

         Plaintiffs Alexis and Jasmin Holmes (“Plaintiffs”) brought the instant action after being stopped, questioned and arrested in a Zara USA, Inc. (“Zara”) store on May 30, 2014. Presently pending are: (1) the motion for sanctions filed by Defendant Westfield America, Inc. (“Westfield”) (ECF No. 42); (2) the motion to compel and for sanctions filed by Defendant Westfield (ECF No. 43);[1] (3) the motion to dismiss or compel filed by Defendant Zara (ECF No. 44); (4) the motion for extension of time to file a response filed by Plaintiffs (ECF No. 49); (5) the motion for extension of time to complete discovery filed by Plaintiffs (ECF No. 54); (6) the motion for summary judgment filed by Defendant Zara (ECF No. 56); (7) the motion for summary judgment filed by Defendant Westfield (ECF No. 57); and (8) the motion for extension of time to file a response to Defendants' motions for summary judgment filed by Plaintiffs (ECF No. 61). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion for extension of time to respond to Defendant Westfield's motion to dismiss or for sanctions will be denied, the motion for extension of time to respond to Defendants' motions for summary judgment will be granted, the motion for summary judgment filed by Defendant Westfield will be granted, the motion for summary judgment filed by Defendant Zara will be denied, the motion for sanctions filed by Defendant Westfield will be denied in part and granted in part, the motion to compel and for sanctions filed by Defendant Zara will be denied, and the motion to extend discovery filed by Plaintiffs will be denied.

         I. Factual Background

         On May 30, 2014, Plaintiffs were shopping at a Zara store (ECF No. 62-2 ¶ 2) located at the Montgomery Mall, 7101 Democracy Boulevard, Bethesda, MD 20817 (ECF No. 56-2 ¶ 3). Although Zara maintains a company policy prohibiting more than one customer from using a single fitting room (ECF No. 56-2, at 3), Plaintiffs entered a single fitting room together to try on five items of clothing (ECF No. 62-2 ¶ 3). Allegra Saunders-Sawicky (“Ms. Saunders-Sawicky”), an assistant manager at the Zara store, informed Hayat Abdu (“Ms. Abdu”), the general manager, that Plaintiffs had entered a fitting room together. In response, Ms. Abdu “directed [Ms.] Saunders-Sawicky to pay attention to [Plaintiffs].” (ECF No. 56-2, at 3). Ms. Abdu learned from an employee that a security sensor “was dropped on the floor in the fitting room which the young women were occupying.” (ECF No. 56-2 ¶ 9). When Plaintiffs exited the fitting room, Ms. Abdu “discovered that the security sensor was missing from one blouse, and that the blouse had a large tear where the security sensor should have been.” (Id. ¶ 13.) She concluded that Plaintiffs damaged the blouse and suspected that they were attempting to steal merchandise. Ms. Abdu then approached Plaintiffs and asked them to pay for the damaged blouse, stating that she would call the police and have a barring order issued against them if they refused to do so. (ECF No. 56-2 ¶ 18). Ms. Abdu and her staff contacted “either the Mall security or Montgomery County Police, or both.”[2](ECF No. 56-2 ¶ 19). Defendant Westfield placed multiple security officers around the store until police arrived. (Id. ¶ 24). Officers Nathaniel Brubaker and Edward Tamulevich of the Montgomery County Police received a radio broadcast from the 911 dispatch center requesting assistance at the Zara store. (ECF No. 57-4, at 4, p. 10). Upon their arrival, the officers learned that Zara employees suspected Plaintiffs of tearing the security sensor off of a white blouse. (ECF No. 57-4, at 5, p. 14). Two other members of the Montgomery County Police, Officer Gwynn and Sergeant Jenson, separately arrived at Zara in response to the request for police assistance. (ECF No. 57-4, at 5, p. 16). Officers Brubaker and Tamulevich took Plaintiffs into custody based on their conclusion that there was probable cause to arrest Plaintiffs for attempted theft and malicious destruction of property. (ECF No. 57-3, at 5, p. 16). Officer Brubaker prepared Montgomery County Trespass Notification Forms barring Plaintiffs from entering the Zara store for one year. (ECF Nos. 57-3, at 9, p. 30; 56-2, ¶ 24). Plaintiffs refused to sign the forms. (Id., at p. 32). Plaintiff Alexis Holmes was charged with malicious destruction of property but the charges against her were dropped on August 21, 2014. (ECF Nos. 57-4, at 7, p. 21; 62-2 ¶ 41). No. criminal charges were brought against Plaintiff Jasmin Holmes. (ECF No. 56-5, at 10).

         The series of events, as told by Plaintiffs, Ms. Abdu, and Officers Tamulevich and Brubaker, is rife with inconsistencies. Ms. Abdu asserts that she directed Plaintiffs to use separate fitting rooms, but they nevertheless entered a fitting room together. (ECF No. 56-2 ¶ 6). Plaintiff Alexis Holmes states instead that “[n]o one [] ever told me I could not be in the room with another person.” (ECF No. 62-2 ¶ 34). There is another discrepancy regarding Ms. Abdu's interactions with Plaintiffs after they exited the fitting room. Plaintiffs assert that they gave the items of clothing they did not want to purchase to another employee after leaving the fitting room and Ms. Abdu then approached them asking to look in their bag. (ECF No. 62-2 ¶¶ 13, 16). In contrast, Ms. Abdu asserts that Plaintiffs handed several articles of clothing directly to her immediately after exiting the fitting room and that she approached Plaintiffs as they headed toward the store exit to ask them about paying for the ripped white blouse. Ms. Abdu's version of events, however, never states that she asked Plaintiffs to look in their bag. (ECF No. 56-2 ¶¶ 12-18). Finally, Plaintiffs maintain that Zara employees asked them to sign documents before the police arrived. (ECF Nos. 62-2 ¶¶ 22, 25; 56-5, at 5). However, Officer Brubaker testified that the trespass forms are “police forms” that the officers brought to the store. (ECF No. 57-3, at 8, p. 30). He did not see Plaintiffs refuse to sign any other document, but states that Plaintiffs could have been asked to sign a Civil Demand form before the police arrived. (Id., at 9, pp. 31-32).

         II. Procedural Background

         On April 19, 2017, Plaintiffs brought suit in the Circuit Court for Montgomery County against Westfield, Zara, and Ms. Hayat Abdu. (ECF No. 2). The complaint alleges three counts: (1) false arrest, (2) false imprisonment and (3) respondeat superior. Defendant Zara removed the action on August 11. (ECF No. 1). On October 2, Plaintiffs were ordered to provide a status report regarding service as to Defendant Westfield and Ms. Abdu within fourteen days. (ECF No. 15). Twenty-nine days later, on October 31, Plaintiffs submitted the report indicating that they had not effectuated service and could provide a further update on November 15. (ECF No. 16). On November 16, when no update had been provided, the court issued a Show Cause Order providing Plaintiffs with fourteen days to respond and show cause why the non-served parties should not be dismissed. (ECF No. 19). Plaintiffs timely responded and requested additional time which was granted. (ECF Nos. 25, 26).

         After finally being served, Defendant Westfield moved to dismiss on December 6, 2017. (ECF No. 27). On December 27, Plaintiffs belatedly responded to the motion to dismiss. (ECF No. 28). Plaintiffs also requested leave to file an amended complaint but did not follow the proper procedure for amending a complaint. (ECF Nos. 29, 30). As Plaintiffs had still not served Ms. Abdu, on January 12, 2018, the court again ordered Plaintiffs to show cause why Ms. Abdu should not be dismissed. (ECF No. 33). Plaintiffs did not respond.

         On January 31, 2018, the court issued an opinion and an order dismissing Ms. Abdu and denying Defendant Westfield's motion to dismiss. (ECF No. 34). The court entered a scheduling order on February 1. (ECF No. 37). On April 5, Defendant Westfield moved for sanctions alleging that it had properly noted depositions but that Plaintiffs had failed to appear. (ECF No. 42). Defendant Westfield also moved to compel and for sanctions alleging that it provided Plaintiffs with discovery requests on March 1 but had not received any responses by April 6. (ECF No. 43). On May 3, Defendant Zara moved to compel alleging that Plaintiffs had failed to respond to any written discovery requests and failed to appear at the depositions. (ECF No. 44).

         The court held a telephone conference on May 8, 2018. According to Plaintiffs' counsel, Landon White (“Mr. White”), although he received emails, mail, and notifications via the electronic court filing system (“ECF”), he was unaware of the deposition and, thus, apparently did not tell his clients to appear. Mr. White represented during that call that he would have responses “by the end of the week, no later than next Monday [May 14].” Telephone Conference at 9:07:53, 9:12:46, Holmes v. Westfield, No. DKC-17-2294 (D.Md. May 8, 2017) (“Telephone Conference”). When asked if Plaintiffs were taking discovery, Mr. White represented that they were and that “we have our discovery ready” (id. at 9:17:23) and that he did not “think there would be any holdup on [his] end” (id. at 9:19:32). During the call and then in an Order memorializing its decision, the court gave Mr. White until May 14 to respond to discovery and until May 18 to respond to the motions for sanctions. (Id. at 9:22:36; ECF No. 48).

         Despite the statements during the call and the court's order, Plaintiffs did not respond to all the discovery requests by May 14 and did not respond to the motions for sanctions by May 18. On May 23, 2018, Plaintiffs moved for an extension of time in which to file their response to the motion for sanctions. (ECF No. 49). Defendant Westfield opposed the motion. (ECF No. 50). Plaintiffs filed their response to the motion for sanctions on May 25. (ECF No. 51). On June 18, Plaintiffs moved to extend the time to complete discovery. (ECF No. 54).

         Defendant Zara moved for summary judgment on July 11, 2018 (ECF No. 56) and Defendant Westfield moved for summary judgment on July 16, 2018 (ECF No. 57). Plaintiffs twice moved for an extension of time in which to file their response to the motions for summary judgment. (ECF Nos. 59 & 61). The court granted Plaintiffs' first motion on July 30, 2018. (ECF No. 60). Plaintiffs filed their second motion, which remains pending, with their single response to both motions for summary judgment on August 26, 2018. (ECF Nos. 61 & 62). Defendants Zara and Westfield filed responses in opposition to Plaintiffs' August 26, 2018 motion for extension of time on August 27, 2018 (ECF No. 63) and September 10, 2018, respectively (ECF No. 65).

         To sum up, counsel for Plaintiffs, Mr. White, has missed deadlines on at least nine occasions. (ECF Nos. 16, 19, 28, 42, 44, 48, 59, 61). On four occasions, this court has ordered a response and only once did Mr. White do so in a timely fashion. Mr. White has also failed to follow local rules (ECF Nos. 20 & 29), ignored opposing counsel's discovery requests, and has not complied with the Federal Rules of Civil Procedure. Perhaps most troublingly, he has not been faithful to the statements he made to the court.

         III. Motions for Extension of Time to Respond

         The Defendants moved for sanctions (ECF Nos. 42, 43, 44), and the court ordered a response by May 18 based on Mr. White's representation during the telephone conference that he could file a response by that time (ECF No. 48).[3] Five days after his response was due, Mr. White sought leave to extend the time on the ground that he did not have access to ECF. (ECF No. 49). Ironically, as Defendant Westfield noted, he filed the motion to allow late filing on ECF, and, thus, proved that at least by May 23, he had access to ECF and could have filed a response.

         Fed.R.Civ.P. 6(b) governs extension of time, and it allows for an extension of time “after the time has expired if the party failed to act because of excusable neglect.” Rule 6(b)(1)(B). The excusable neglect standard permits courts “to accept late filings caused by inadvertence, mistake, or carelessness[.]” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388 (1993). “Generally, excusable neglect . . . require[s] a demonstration of good faith on the part of the party seeking an extension of time and some reasonable basis for noncompliance within the time specified in the rules.” 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1165 (4th ed. 2018).

         Here, Mr. White has provided no reason why he needed extra time. He agreed to file his response by May 18, and, despite his representation and having over a month to file the response, he did not have the response ready. He does not mention any steps he took to prepare the response and does not explain why it was not filed. Instead, counsel explains why his motion for leave to allow late filing was, itself, late. Mr. White has provided no justification for the late filing of his response. Accordingly, the motion for leave to allow late filing will be denied.[4]

         Mr. White also requested an extension of time to file a response to Defendants' motions for summary judgment (ECF Nos. 56, 57, 61). Mr. White's response to Defendant Zara's motion was due on July 25, 2018 and his response to Defendant Westfield's motion was due on July 30, 2018. See Local Rule 105.2. Mr. White's request for additional time states that he experienced technical difficulties and, as a result, could not access Plaintiffs' affidavits. Mr. White filed an opposition to both motions about a month after the required response date on August 26, 2018. (ECF No. 62). “Excusable neglect is not easily demonstrated . . . [and] a district court should find [it] only in the extraordinary cases where injustice would otherwise result.” Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir. 1996) (internal quotation removed). Here, Plaintiffs would suffer serious injustice due to Mr. White's carelessness if their opposition could not be considered in response to Defendants' motions for summary judgment. Thus, Plaintiffs' motion to extend time to respond to Defendants' motions for summary judgment will be granted.

         IV. Motions for ...


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