United States District Court, D. Maryland
Lipton Hollander United States District Judge
Memorandum Opinion addresses a motion for sanctions filed by
plaintiff Whitney Davis on October 18, 2018, in her wage and
hour case. ECF 52. The motion is supported by a memorandum of
law (ECF 52-1) (collectively, the “Motion” or
“Motion for Sanctions”) and several exhibits. ECF
52-3 through ECF 52-11. In particular, under Fed.R.Civ.P. 37,
plaintiff moved for a finding of civil contempt against
defendant Edwina Murray, for failure to comply with the
Court's Order of August 28, 2018. See ECF 50.
Plaintiff also requested legal fees.
Order of August 28, 2018, was spawned by defendants'
failure to comply with an earlier Order, issued on June 30,
2017. ECF 21. In ECF 21, I ordered Ms. Murray to produce, by
August 3, 2017, “the names and all contact information
within Defendants' possession, custody, or control, of
each and every other care provider . . . who worked on at
least one weekend at any of Defendants' group homes
between February 17, 2014, and June 22, 2017.”
Id. The Court subsequently extended that
deadline three times over the course of nearly two years. ECF
30; ECF 50; ECF 70. And, in an Amended Order of April 12,
2019 (ECF 70), the Court directed Ms. Murray to comply with
ECF 50 by May 1, 2019.
Murray failed to respond. Therefore, by Order of May 6, 2019
(ECF 72), I directed Ms. Murray to appear before this Court
on June 28, 2019, to show cause as to why I should not find
her in contempt for failure to comply with the Court's
Order of August 28, 2018 (ECF 50), as well as the Order of
April 12, 2019 (ECF 70). Ms. Murry appeared with pro bono
counsel at the show cause hearing. She testified, and oral
argument was presented.
Factual and Procedural Background
February 17, 2017, plaintiffs Michael Chapman and Whitney
Greene, who has since legally changed her name to Whitney
Davis, sued defendants Uhh Wee, We Care Inc. and Uhh Wee, We
Care Transportation Inc. (collectively, “Uhh
Wee”), as well as Ms. Murray, the owner of Uhh Wee. ECF
1 (the “Complaint”).
and Davis alleged that they are former employees of
defendants, and that defendants failed to pay minimum and
overtime wages, in violation of the Fair Labor Standards Act
(“FLSA”) as amended, 29 U.S.C. §§ 201,
et seq.; the Maryland Wage and Hour Law
(“MWHL”), as amended, Md. Code (2016 Repl. Vol.),
§§ 3-401 et seq. of the Labor and
Employment Article (“L.E.”); and the Maryland
Wage Payment and Collection Law (“MWCPL”), as
amended, L.E. §§ 3-501 et seq. ECF 1,
¶ 3. Davis also states that defendants wrongfully
terminated her for her disability, in violation of the
Maryland Employment Anti-Discrimination Law, as amended, L.E.
§§ 20-602 et seq. ECF 1, ¶ 96.
were served with a copy of the summons and the Complaint on
March 9, 2017. ECF 3. On April 17, 2017, plaintiffs filed a
motion requesting a default judgment against defendants for
failure to plead. ECF 4. The Court entered an order of
default on April 19, 2019, for want of answer or other
defense. ECF 5. On April 21, 2017, the parties filed a joint
motion to vacate the clerk's entry of default. ECF 6.
That same day, the motion was granted, and the entry of
default was vacated. ECF 7.
answered the Complaint on April 28, 2017. ECF 11. The Court
held a telephone status conference with counsel on May 22,
2018. See Docket. A Scheduling Order followed on May
23, 2017. ECF 13.
20, 2017, Chapman sent plaintiffs' counsel a fax message
in which he sought to be dismissed from the suit. ECF 14-4.
In response, on June 22, 2017, plaintiffs' counsel filed
a “Motion for Leave to Secure Intervention of a
Substitute Representative Plaintiff.” ECF 14
(“Motion for Leave”). In that motion,
plaintiffs' counsel informed the Court that they had
“uncovered material alterations on Mr. Chapman's
time records.” ECF 14 at 3. Counsel asked the Court to
grant Davis time “to move for intervention of a
substitute representative plaintiff for weekend care
providers” to replace Chapman. Id. Most
important for present purposes, counsel asked the Court to
“Order Defendants to produce to Plaintiffs'
counsel, by July 3, 2017, the names and any and all contact
information of each and every other care provider who worked
on weekends at Defendants' group homes at any time from 3
years prior to date of filing of the Complaint through the
present.” Id. at 5.
response, the Court held a telephone conference with counsel
on June 23, 2017. See Docket. Plaintiffs'
counsel advised that they would submit an amended proposed
order with respect to ECF 14. See ECF 23 (Letter
order of July 14, 2017) at 2.
29, 2017, counsel for defendants moved to withdraw from the
case, stating that they had been discharged by Ms. Murray.
ECF 17. I granted the motion to withdraw by Order of June 29,
2017. ECF 18. The Clerk notified defendants, in a letter
dated June 29, 2017, of the implications of counsel's
withdrawal. ECF 19. And, in an Order to defendants dated June
30, 2017 (ECF 20), I explained that because Uhh Wee is a
corporation, it may only proceed with counsel. I granted Uh
Wee until July 31, 2017, to obtain new counsel. Id.
Order of June 30, 2017 (ECF 21), the Court issued an Order
that had been contemplated during the telephone conference
with counsel for all parties on June 23, 2017. That
conference included the attorney who was defense counsel as
of that time. I directed defendants to preserve all documents
and records concerning any person who worked as a care
provider at defendants' homes, in all formats.
Id. ¶ 2. And, I ordered defendants to
“produce to Plaintiffs counsel, by August 3, 2017, the
names and any and all contact information . . . of each and
every other care provider . . . who worked on at least one
weekend at any of Defendants' group homes at any time
from February 17, 2014, through the present, ”
i.e., June 2017. Id. ¶ 3.
Court received correspondence from Ms. Murray on July 14,
2017, concerning the status of the case. ECF 22. She asserted
that Chapman had asked his lawyers to dismiss the case, with
prejudice. In support, Ms. Murray attached a letter dated
June 27, 2017, which appeared to have been signed by Chapman.
Id. at 2. In view of the letter, Ms. Murray asked
the Court to dismiss Chapman's case, with prejudice.
Id. at 1. In addition, she asked the Court to
provide her with additional time to obtain counsel for Uhh
Order of July 14, 2017, I directed plaintiffs' counsel to
submit a status report by July 28, 2017. ECF 23 at 2. I also
granted Uhh Wee an extension of time, through August 31,
2017, in which to retain counsel. Id. Defendants
were also granted an extension of time, through August 31,
2017, in which to comply with the Court's Order of June
30, 2017 (ECF 21), concerning production of employee contact
information. Id. And, I directed the parties to
submit another status report by September 8, 2017. ECF 23.
28, 2017, plaintiffs submitted a status report stating that
on July 10, 2017, the Public Justice Center, which employs
plaintiffs' counsel, received a fax message purporting to
be from Mr. Chapman, asking for dismissal of his claims. ECF
24 at 1. Notably, the fax message was sent from
defendants' business address. Id. On July 31,
2017, Ms. Murray again asked the Court to dismiss the case,
with prejudice, in light of Mr. Chapman's request to
withdraw from the case. ECF 25.
Gauvey, Esq. entered his appearance as defense counsel on
August 2, 2017. ECF 26. And, on August 29, 2017, defendants
filed an opposition to plaintiffs' Motion for Leave. ECF
29. Further, on September 11, 2017, they moved to dismiss
Chapman, citing his prior requests to be dismissed from the
case. ECF 31.
next day, September 12, 2017, plaintiffs replied to
defendants' opposition to the Motion for Leave. ECF 32.
Then, on September 15, 2017, defendants moved for leave to
file a surreply to “address the serious misstatements
in ‘Plaintiffs' Reply in Support of Motion for
Leave to Secure Intervention of a Substitute Representative
Plaintiff.'” ECF 36 at 1. That motion was
subsequently granted. ECF 40.
September 25, 2017, plaintiffs' counsel filed an
opposition to defendants' motion to dismiss Mr. Chapman.
filed a “Motion to Compel Discovery” (ECF 38),
along with several exhibits, on March 2, 2018. ECF 38-2 to
ECF 38-5. Davis moved to compel defendants to produce
documents “responsive to her Interrogatories and
Request for Production.” ECF 38 at 1.
March 5, 2018, I granted defendants' motion to dismiss
Chapman from the case. ECF 39. Therefore, he was terminated
as a party.
March 15, 2018, Davis withdrew her discovery motion after
being advised by defendants that they would provide responses
to her “Interrogatories and Request for
Production.” ECF 42. By Order of March 16, 2018, I
approved that motion. ECF 43.
parties filed a joint status report on August 2, 2018. ECF
47. Based upon that status report, I acknowledged that, in my
Order of June 30, 2017 (ECF 21), I did not resolve
plaintiff's request for intervention of a substitute
representative plaintiff. See ECF 48 (Order of
August 2, 2018).
Memorandum (ECF 49) and Order (ECF 50) of August 28, 2019, I
granted plaintiff's motion for discovery concerning
potential class members related to Chapman's prior claims
as a weekend care provider, as well as plaintiff's
request for intervention of a substitute representative
plaintiff. In addition, I observed that Ms. Murray appeared
to have produced altered time sheets. ECF 49 at 11. In this
regard, I stated that “the specter of document
tampering . . . shrouds Chapman's departure from the case
and suggests an effort to thwart the claim of weekend care
I directed that by September 27, 2018, defendants
“shall provide plaintiff with the names and all contact
information within defendants' possession, custody, or
control, of every care provider who worked at least one
weekend at any of defendants' group homes between
February 17, 2014 and June 22, 2017.” ECF 50. Plaintiff
was also granted 30 days from the date of defendants'
compliance with the Order to move for intervention of a
substitute representative plaintiff for weekend care
October 10, 2018, plaintiff filed a “Motion for
Sanctions and Attorneys' Fees.” ECF 52. She
asserted that the defendants had failed to comply with the
Order of August 28, 2018, as they had not provided plaintiff
with the names and contact information for the specified care
providers. ECF 52-1 at 1. Plaintiff moved to hold defendants
in civil contempt for their violation of the Order of August
28, 2018. Id. at 5. In addition, plaintiff requested
attorneys' fees, as well as a fine of $200 per day for
each day of noncompliance. Id. at 2. In particular,
she sought a total of $4, 921.00 in attorneys' fees for
work performed in connection with the Motion for Leave ($1,
827.50) and the Motion for Sanctions ($3, 093.50).
Id. at 10
on October 23, 2018, defense counsel moved to withdraw. ECF
53. The same day, defendants filed a “Motion to Extend
Time to Respond” in light of counsel's motion to
withdraw. ECF 54. By orders of October 23, 2018, I granted
defendants' motion for extension through November 23,
2018 (ECF 55), and defense counsel's motion to withdraw.
November 29, 2018, Ms. Murray requested a postponement of the
“case” due to the withdrawal of defense counsel,
which allegedly left her “legally paralyzed.” ECF
58. She also stated that she needed additional time to
“gather all of the necessary documentation, witnesses,
affidavits, etc. to effectively refute the allegations
alleged.” Id. In addition, she asked the court
to appoint counsel, due to her severe financial difficulties.
Id. I found no basis to provide counsel for Uhh Wee
as a corporation, nor any basis to appoint counsel for Ms.
Murray. ECF 59 at 2. Therefore, that motion was denied by
Order of December 17, 2018. Id. In that Order, the
Court again advised Ms. Murray that Uhh Wee, as a
corporation, “may only appear through counsel.”
Id. Conversely, she was told that she could
represent herself. Id.
January 15, 2019, I updated the Scheduling Order (ECF 13)
because it had become stale, under the circumstances. ECF 60.
On January 28, 2019, plaintiff moved for default judgment
against Uhh Wee. ECF 61. Plaintiff also moved to modify the
Amended Scheduling Order. ECF 62. And, on January 29, 2019,
Ms. Murray again moved for Appointment of Counsel. ECF 63.
Clerk entered a default against Uhh Wee on February 1, 2019,
because Uhh Wee had “failed to plead or otherwise
defend as directed in said Summons and as provided by the
Federal Rules of Civil Procedure.” ECF 64. Notice of
default was given to Uhh Wee on February 1, 2019. ECF 65.
February 5, 2019, Ms. Murray filed, on her own behalf and on
behalf of Uhh Wee, a “Motion for Delay of Amending
Scheduling Orders.” ECF 66. That same day, she also
filed, on behalf of Uhh Wee only, an opposition to the
clerk's entry of default. ECF 67. Because Ms. Murray is
not an attorney, her filings for the corporate entities have
no legal effect.
Memorandum (ECF 68) and Order (ECF 69) of April 11, 2019, I
granted plaintiff's request to modify the Amended
Scheduling Order, and I denied Ms. Murray's request for
counsel, as well as her motion to delay the issuance of the
Amended Scheduling Order. Id. Significantly, I
ordered defendants to comply with the Order of August 28,
2018. By an Amended Order of April 12, 2019 (ECF 70), I
clarified that defendants had to produce the information by
May 1, 2019.
3, 2019, plaintiff filed a status report stating:
“Plaintiff has received no information or other
correspondence from Ms. Murray.” ECF 71. A Show Cause
Order followed on May 6, 2019. ECF 72. There, the Court
directed Ms. Murray and representatives of plaintiff to
appear for a “show cause contempt hearing” on
June 28, 2019. In particular, Ms. Murray was directed to show
cause at the hearing as to why she “should not be found
in contempt for failure to comply with this Court's
Orders of August 28, 2018 (ECF 50) and/or April 12, 2019 (ECF
70).” ECF 72 at 2-3.
of the show cause contempt hearing, on May 13, 2019, this
Court appointed pro bono counsel on behalf of Ms. Murray
“for the limited purpose of representation” at
the civil contempt hearing. ECF 73. On May 17, 2019, Ms.
Murray moved to appoint an attorney for show cause ...