United States District Court, D. Maryland
PAMELA HOLDEN, et al., Plaintiffs, on behalf of themselves and others similarly situated,
BWELL HEALTHCARE, INC., et al., Defendants.
MEMORANDUM AND ORDER
LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE.
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,  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.
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.
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.
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,
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
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.
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.
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
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
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 ....
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." ...