United States District Court, D. Maryland
ALEXIS HOLMES, et al.
WESTFIELD AMERICA, INC., et al.
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE
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); (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.
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.”(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,
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).
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).
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.
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).
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).
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).
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).
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.
Motions for Extension of Time to Respond
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). 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.
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
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.
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.
Motions for ...