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.
Stephanie A. Gallagher United States District Judge
Pamela Holden, April Wright, and Stephanie Williams
(collectively “Plaintiffs”) filed this action
against Defendants Bwell Healthcare, Inc.
(“Bwell”), Femmy A. Kuti, and Sunlola Kuti
(collectively “Defendants”), alleging
underpayment of wages and overtime pay. Currently pending are
two motions: (1) ECF 32, a “Motion to Strike Answer to
Amended Complaint by Bwell Healthcare, Inc. and Femmy A.
Kuti, To Extend the Time within Which to File Required
Pleading Pursuant to Rule 12(b) Prior to Filing Responsive
Pleadings to the Amended Compliant [sic], Extend the Time to
File Answers to the Amended Complaint and to Extend the Time
Within Which to File Response in Opposition to Motion for
Conditional Certification of FLSA Collective Action”
(“the Motion to Strike”) filed by Defendants, and
(2) ECF 5, a “Motion for Conditional Collective Action
Certification and Court Facilitated Notice (“Motion for
Conditional Certification”) filed by Plaintiffs. I have
reviewed those motions, along with Plaintiffs' Opposition
to the Motion to Strike, ECF 33, and Defendants' Reply,
ECF 34. No. hearing is necessary. See Loc. R. 105.6
(D. Md. 2018). For the reasons stated herein, Defendants'
Motion to Strike will be denied in its entirety, although
Defendants will be afforded an opportunity to file an answer
to the Amended Complaint, and Plaintiff's Motion for
Conditional Certification will be granted.
lawsuit, home care aides currently or formerly employed by
Bwell seek relief under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. 201 et seq., and
similar state statutes. ECF 14. The original Complaint was
filed on March 12, 2019, and served on the Defendants on
March 17, 2019. ECF 1, 3. Defendants did not file an answer
or other responsive document in this Court. On May 3, 2019,
United States District Judge Ellen Hollander ordered
Plaintiffs to file a Motion for Clerk's Entry of Default,
or to show cause why default would be inappropriate. ECF 4.
In response, on May 10, 2019, Plaintiffs filed the pending
Motion for Conditional Certification of an FLSA Collective
Action, ECF 5, and a notice that they did not believe default
to be appropriate, because Defendants had made informal
contact with Plaintiffs' counsel, and because the FLSA
collective action had not yet been addressed, ECF 6.
26, 2019, Plaintiffs filed an opt-in form for a new
plaintiff, Bernetta Gaines. ECF 7. During the next pay
period, Defendants terminated Ms. Gaines, along with the
other plaintiff who still worked for Bwell, Ms. Holden, and
Ms. Holden's sister, Ms. Williams. See ECF 14.
Although Ms. Gaines filed a notice of voluntary dismissal of
the lawsuit on July 11, 2019, ECF 8, the remaining
Plaintiffs, along with Ms. Williams, filed a Motion for Leave
to File an Amended Complaint on July 11, 2019, seeking to add
Ms. Williams as a Plaintiff and to add retaliation claims.
ECF 9. That motion was granted on July 15, 2019. ECF 14.
12, 2019, Plaintiffs filed an emergency motion for a
temporary restraining order and preliminary injunction,
seeking to enjoin the retaliatory termination of Ms. Holden
and Ms. Williams. ECF 11. Following a July 15, 2019 hearing,
at which Defendant Femmy Kuti appeared without counsel and
the other Defendants did not appear, Judge Hollander granted
the Temporary Restraining Order. ECF 18, 25. During that
hearing, Judge Hollander admonished Femmy Kuti, on the
record, about the need to retain counsel to represent Bwell.
ECF 25 at 2-3. Mr. Kuti represented that counsel would be
entering an appearance in the near future. Id.
August 15, 2019, Mr. Kuti, still without counsel, filed a
letter that was docketed as his “Answer” to the
Amended Complaint. ECF 21. On August 20, 2019, Judge
Hollander held a preliminary injunction hearing, and issued
an order on August 23, 2019, granting the preliminary
injunction Plaintiffs requested. ECF 24. Once again, Mr. Kuti
appeared at the August 20, 2019 hearing without counsel, and
Mrs. Kuti did not appear. ECF 26.
October 8, 2019, this Court entered an Order setting a
deadline of November 8, 2019 for Bwell to obtain counsel, or
to face default judgment. ECF 27. On November 8, 2019,
Defendants' current counsel entered an appearance on
behalf of all Defendants. ECF 30. Counsel then filed the
pending motion, seeking to strike the pro se
“Answer” that Femmy Kuti had filed on August 15,
2019, and seeking an opportunity to file a Motion to Dismiss
the Amended Complaint, and an opposition to the Motion for
Conditional Certification. ECF 32, 5, 14.
MOTION TO STRIKE
seek to “strike” the August 15, 2019 document
filed as an “Answer” by Mr. Kuti. ECF 21. A
review of the document indicates that it is a letter from Mr.
Kuti to Judge Hollander, addressing the merits of
Plaintiffs' allegations. Although the document was
docketed as an “Answer, ” Plaintiffs “do
not object to the recategorization of F. Kuti's Answer as
‘correspondence' so that the three Defendants may
file a proper answer and a scheduling order may be
entered.” ECF 33 at 1. Accordingly, this Court will
direct the Clerk to make the necessary docket entries to
recategorize the August 15, 2019 document as
“correspondence, ” without striking it from the
also seek a belated motion for extension of time to file a
motion to dismiss the Amended Complaint, and to file an
opposition to the Motion for Class Certification. ECF 32 at
3-5. Fed.R.Civ.P. 6(b) permits a party to file a motion to
extend time after the deadline has expired “if the
party failed to act because of excusable neglect.”
“'Excusable neglect' is not easily
demonstrated, nor was it intended to be.” Thompson
v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534
(4th Cir. 1996). Moreover, “inadvertence, ignorance of
the rules, or mistakes construing the rules do not usually
constitute excusable neglect.” Id. at 533.
factors govern whether neglect is excusable: (1) the danger
of prejudice to the non-movant, (2) the length of delay and
its potential impact on judicial proceedings, (3) the reason
for the delay, and (4) whether the movant acted in good
faith. See Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P'ship, 507 U.S. 380, 395 (1993). The reason
for the delay is viewed as the most important factor.
Thompson, 76 F.3d at 534.
those factors in this case, the factors weight heavily in
favor of the non-moving Plaintiffs. First, there is
significant danger of prejudice to Plaintiffs from the
additional delay that would result from “turning back
the clock” to permit responses to be filed months after
they were due. This is not a case in which the prejudice is
merely a delay. See Colleton Preparatory Academy, Inc. v.
Hoover Universal, Inc., 616 F.3d 413, 418 (4th Cir.
2010) (stating “delay in and of itself” typically
does not constitute prejudice to the non-moving party).
Rather, Plaintiffs seek conditional certification of an FLSA
collective, and some potential opt-in plaintiffs may face
limitations issues with their claims, which will be
exacerbated by additional delays if further briefing is
permitted. Second, the length of delay and its potential
impact on judicial proceedings weighs in favor of Plaintiffs
for the same reason. Already, the motion seeking conditional
certification has been pending nearly seven months, and
additional motions practice would inevitably delay
disposition for months more, which could impact the ability
of opt-in plaintiffs to bring their claims at all.
third and most important factor, the reason for the delay,
similarly does not favor Defendants. See, e.g.,
Peche v. Keller, 2012 WL 2128095, at *3 (M.D. N.C.
June 12, 2012) (finding third factor weighed in favor of
excusable neglect where the defendant's counsel had been
medically incapacitated). Defendants now contend that the
delay resulted from Femmy Kuti's attempt to act pro
se, due to an inability to afford legal counsel. ECF 34
at 2. However, Femmy Kuti's actions undermine his current
contentions. Mr. Kuti told Judge Hollander, during the
hearing on July 15, 2019, that he had consulted with multiple
attorneys and was retaining counsel. ECF 33-1 at 2-3. At the
preliminary injunction hearing, on August 20, 2019, Mr. Kuti
made comments suggesting he was making a calculated decision
not to retain an attorney. See ECF 26 ...