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Davis v. Uhh Wee

United States District Court, D. Maryland

July 31, 2019

WHITNEY DAVIS, Plaintiff,
v.
UHH WEE, WE CARE INC. D/B/A UHH WEE WE CARE ASSISTED LIVING, ET AL. Defendants.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge

         This 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.

         The 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.[1] 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.

         Ms. 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.

         I. Factual and Procedural Background

         On 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”).

         Chapman 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.

         Defendants 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.

         Defendants 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.

         On June 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.

         In 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.

         On June 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.

         By 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.

         The 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 Wee. Id.

         By 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.

         On July 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.

         Kenneth 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.

         The 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.

         On September 25, 2017, plaintiffs' counsel filed an opposition to defendants' motion to dismiss Mr. Chapman. ECF 37.

         Davis 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.

         On March 5, 2018, I granted defendants' motion to dismiss Chapman from the case. ECF 39. Therefore, he was terminated as a party.

         On 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.

         The 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).

         By 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 providers.” Id.

         Moreover, 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 providers. Id.

         On 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

         Thereafter, 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. ECF 56.

         On 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.

         On 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.

         The 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.

         On 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.

         By 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.

         On May 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.

         In view 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 ...


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