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Holden v. Bwell Healthcare, Inc.

United States District Court, D. Maryland

July 16, 2019

PAMELA HOLDEN, et al., Plaintiffs, on behalf of themselves and others similarly situated,
v.
BWELL HEALTHCARE, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          ELLEN LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE.

         Upon consideration of "Plaintiffs' Motion For An Immediate Temporary Restraining Order, Preliminary Injunction, and Expedited Hearing To Enjoin Defendants' Retaliatory Conduct" (ECF 11, the "TRO Motion"), the attached memorandum of law and exhibits, evidence offered by plaintiffs at an evidentiary hearing held on July 15, 2019, as well as argument offered by plaintiffs and defendant Femmy Kuti, [1] and for the reasons explained on the record at that hearing and herein, the Court GRANTS a temporary restraining order, on the terms laid out below.

         I. Procedural History

         On March 12, 2019, plaintiffs Pamela Holden and April Wright filed a putative class and collective action lawsuit against Bwell Healthcare, Inc. ("Bwell"), Femmy Adewale Kuti ("F. Kuti" or "Mr. Kuti"), and Sunlola Kuti, defendants, for unpaid overtime wages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq.; the Maryland Wage and Hour Law ("MWHL"), Md. Code, § 3-401 et seq. of the Labor & Employment Article ("L.E."); and the Maryland Wage Payment and Collection Law ("MWPCL"), L.E. § 3-501 et seq. ECF 1. On March 27, 2019, plaintiffs filed proof that defendants were served on March 17, 2019. ECF 3. However, no attorney entered an appearance on behalf of any of the defendants, nor did defendants respond to the suit within the time provided by Fed.R.Civ.P. 12(a)(1)(A)(i). Accordingly, on May 3, 2019, the Court ordered plaintiffs to file a motion for clerk's entry of default pursuant to Fed.R.Civ.P. 55(a), or show cause why such action is not appropriate, within 17 days of the Order. ECF 4.

         On May 10, 2019, plaintiffs moved to certify their FLSA claim as a collective action pursuant to 29 U.S.C. § 216(b) and to facilitate the issuance of notice to all potential class members, and supported their motion with a memorandum of law and exhibits. ECF 5. Also on May 10, 2019, plaintiffs filed a notice with the Court asserting that unless otherwise ordered by the Court, they declined to request entry of default because they "require conditional certification of their FLSA collective action claim so that similarly situated individuals receive prompt notification of the pending suit and have a meaningful opportunity to opt in and pursue their claims through this litigation." ECF 6.

         On June 26, 2019, plaintiffs filed a "Consent to Join Collective Action" form signed by Bernetta Gaines. ECF 7. Shortly thereafter, on July 11, 2019, plaintiffs filed a Notice of Voluntary Dismissal on behalf of Ms. Gaines. ECF 8. Also on July 11, 2019, plaintiffs moved to amend their complaint. ECF 9. The proposed amended complaint sought to add a new plaintiff, Stephanie Williams, and to add claims of unlawful retaliation, in violation of the FLSA, on behalf of Ms. Williams and Ms. Holden, based on the allegation that defendants fired them because of this lawsuit. The proposed amended complaint alleged, among other things, that Ms. Williams is Ms. Holden's sister and that defendants fired Ms. Williams to retaliate against Ms. Holden. ECF 9-1, ¶¶32-42.

         On July 12, 2019, plaintiffs filed the TRO Motion (ECF 11), supported by a memorandum of law (ECF 11-1) and six exhibits. Of note, in Ms. Holden's Declaration (ECF 11-3), she asserted that Ms. Gaines told her that defendants had fired her, too, and that she no longer wished to participate in the suit as a result. Id., ¶ 8. Further, the Declaration referred to other employees of defendants who are potential plaintiffs, and who had been calling Ms. Holden regarding her termination.

         Also on July 12, 2019, the Court scheduled a hearing on the TRO Motion for July 15, 2019, at 2:30 p.m., and ordered counsel for plaintiffs to transmit the Order to Defendants by 6 p.m. ECF 12. On July 15, 2019, prior to the hearing, the Court granted plaintiffs' motion to amend their complaint, ECF 13, and accepted that amended complaint for filing. ECF 14.

         Beginning at about 2:30 p.m. on July 15, 2019, the Court convened a hearing on the TRO Motion. Plaintiffs Holden and Williams appeared with counsel, and defendant F. Kuti appeared without counsel. Defendant F. Kuti moved several times to postpone the matter, claiming he was attempting to obtain counsel and would be meeting with an attorney today. In light of the fact that this case was filed in March 2019, providing ample time for defendants to obtain counsel, and because of the emergency nature of the TRO Motion, the request for postponement was denied. Thereafter, F. Kuti represented himself at the hearing.

         The Court heard the testimony of Ms. Holden concerning, among other things, the circumstances surrounding her termination and the resulting hardship to herself, her sister, and the case.

         Termination letters attached to the declarations of plaintiffs Holden and Williams were introduced in evidence. Mr. Kuti agreed that he had authored those letters and did not dispute their authenticity.

         The letter addressed to Ms. Holden is dated July 5, 2019, and was received by Ms. Holden' on July 9, 2019. See ECF 11-3. It states, among other things, id.:

Our office has received documentation(s) that suggest that you, Ms. Pamela Holden, are not satisfy [sic] with the pay structure attached to your category of employment......At Bwell Healthcare, Inc., we cannot afford to keep a disgruntled and dissatisfied employee with tendencies to be a saboteur as part of our direct providers group .... Therefore, we are giving you this notice to inform that we have initiated efforts, working with the Maryland State case monitors, to terminate our relationship with you ....

         The letter addressed to Ms. Williams is dated July 9, 2019. See ECF 11 -4. It states, among other things, id.: "This letter is to formally notify you that you are no longer assigned to provide direct care services to" the individual for whom Ms. Williams was assigned to provide care, and accused Ms. Williams was "a disgruntled employee with a poor attitude" with "a tendency to sabotage." ...


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