Trustees of the Heating, Piping and Refrigeration Pension Fund et al v. Clean Air Mechanical, Inc. et al

Filing 70

MEMORANDUM. Signed by Chief Judge James K. Bredar on 11/30/2018. (dass, Deputy Clerk) (c/m 12/3/18-das)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

TRUSTEES OF THE HEATING, PIPING
& REFRIGERATION PENSION FUND,
et al.,

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Plaintiffs,

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v.

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CLEAN AIR MECHANICAL, INC., et al.,
Defendants.
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CIVIL NO. JKB-17-3690

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MEMORANDUM
I.

Introduction
Plaintiffs, Steamfitters Local Union 602 and the trustees of eight multiemployer benefit

and trust funds, filed suit against Defendants Clean Air Mechanical, Inc. (“CAM”), CAM’s alleged
owner, James Hardesty Jr., and Clean Air Building Services, LLC (“CABS”), alleging, inter alia,
various violations of Defendants’ contribution and reporting obligations under the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq., and breach of
fiduciary duty. Now before the Court are three motions filed by Plaintiffs: a motion for leave to
amend their complaint (Mot. Amend, ECF No. 60); an unopposed motion to compel Defendants
CAM and Hardesty Jr. to respond to discovery requests (Mot. Compel, ECF No. 63); and a motion
for a show cause order with respect to CAM’s failure to comply with the local rule requiring
corporate defendants to enter an appearance of new counsel within thirty days of their counsel’s
withdrawal (Mot. Show Cause, ECF No. 69 (citing Local R. 101.2 (D. Md. 2016))). No hearing

is required. See Local R. 105.6 (D. Md. 2016). For the reasons set forth below, the Court will
grant Plaintiffs’ motions.
II.

Procedural Background
Plaintiffs filed a Complaint on December 14, 2017, seeking unpaid fund contributions,

liquidated damages, and other forms of relief, including an order permitting a payroll audit to
determine the amount of damages owed by Defendants. (Compl. at 14–15, ECF No. 1.) After
initial failures to answer or otherwise respond, the Clerk entered default against all Defendants on
February 12, 2018. (ECF No. 17.) Plaintiffs then moved for partial default judgment against
CABS on their claim for an order to permit a payroll audit. (ECF No. 18.) CABS opposed the
motion and filed a motion to dismiss for insufficient service. (ECF Nos. 20 and 21.) Eventually,
the entry of default was vacated (ECF No. 24), and both CABS’s motion to dismiss and Plaintiffs’
motion for partial default judgment were withdrawn by the parties (ECF Nos. 32 and 33).
In July 2018, this Court issued a scheduling order setting pretrial deadlines. (ECF No. 46.)
Under that Order, motions to amend the pleadings were due by August 6, 2018, and discovery was
set to close on November 5, 2018. (Id. at 2.) Discovery was later extended until January 2019 in
light of the pending motions addressed by this ruling. (ECF No. 66.)
On July 18, 2018, shortly after issuance of the scheduling order, counsel for CAM and
Hardesty Jr. filed a motion to withdraw. (ECF No. 50.) Exhibits attached to counsel’s motion
indicated that both Defendants were provided with the seven-day notice required by Local
Rule 101.2 and advised that, as a corporate Defendant, CAM could not appear pro se under Local
Rule 101.2(b). (ECF No. 50-1.) The Court granted counsel’s motion (ECF No. 51) and, following
its usual practice, mailed notice of the withdrawal, including a copy of Local Rule 101.2, to
Hardesty Jr. (ECF No. 52). To date, no counsel has appeared on behalf of CAM or on behalf of
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Hardesty Jr. On November 28, 2018, Plaintiffs filed a motion asking the Court to order CAM to
show cause why default should not be entered against it for failure to enter an appearance of
counsel as required by Local Rule 101.2(b). (ECF No. 69.)1
According to the motions and supporting exhibits currently before the Court, Plaintiffs
served requests for discovery, including interrogatories and requests for production, upon all
Defendants on July 10, 2018. (Local Rule 104.7 Certificate ¶ 3, ECF No. 63-2 [hereinafter
“Certificate”].) Defendants CAM and Hardesty Jr. did not respond or object to these requests,
before or after the withdrawal of their counsel. (Id. at ¶ 4.) After multiple attempts to confer with
them (id. at ¶¶ 4–8), Plaintiffs filed a motion to compel, which also sought an award of attorneys’
fees. (Mot. Compel Mem. Supp. at 3, ECF No. 63-1.) No response in opposition was filed.
CABS responded to Plaintiffs’ discovery requests on August 17, 2018. (See Discovery
Responses, Reply Mot. Amend Exhs. A and B, ECF Nos. 62-1 and 62–2.) Based on CABS’s
responses, Plaintiffs moved for leave to amend their Complaint and add Diane Hardesty, CABS’s
owner and the mother of Hardesty Jr., as an individual defendant in the case. (Mot. Amend Mem.
Supp. at 1, 3, ECF No. 60-3.) CABS opposed the motion. (ECF No. 61.)
III.

Analysis
A.

Motion to Amend

When a party seeks to amend a pleading after the expiration of deadlines contained in a
scheduling order, it must satisfy the requirements of both Rule 16(b)(4) and Rule 15(a)(2). Cook
v. Howard, 484 F. App’x 805, 814–15 (4th Cir. 2012) (per curiam) (applying a two-prong test);

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CABS has also been without representation since November 8, 2018. (Order Granting Motion to Withdraw,
ECF No. 68.) CABS’s current lack of counsel does not bear on any of the motions currently before the Court. Under
Local Rule 101.2(b), CABS must enter an appearance of counsel by December 10, 2018.

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United States v. Hartford Accident & Indemnity Co., Civ. No. JKB-14-2148, 2016 WL 386218,
at *5 (D. Md. Feb. 2, 2016) (same).
Under Rule 16, a motion to modify a scheduling order may be granted only upon a showing
of “good cause.” Fed. R. Civ. P. 16(b)(4). The burden to demonstrate good cause rests on the
moving party. Hartford Accident & Indemnity, 2016 WL 386218, at *5. Good cause exists if
“deadlines cannot reasonably be met despite the party’s diligence.” Cook, 484 F. App’x at 815
(quoting 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice &
Procedure § 1522.2 (3d ed. 2010)). Courts consider “whether the moving party acted in good faith,
the length of the delay and its effects, and whether the delay will prejudice the non-moving party.”
Elat v. Ngoubene, 993 F. Supp. 2d 497, 520 (D. Md. 2014) (citing Tawwaab v. Va. Linen Serv.,
Inc., 729 F. Supp. 2d 757, 768–69 (D. Md. 2010)). Modification should not be permitted where
the movant “has not acted diligently” to comply with the schedule. Cook, 484 F. App’x at 815
(quoting 6A Wright & Miller § 1522.2).
Rule 15 permits amendment “with the opposing party’s written consent or with the court’s
leave,” which should be “freely [granted] when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Leave to amend should be denied “only where it would be prejudicial, there has been bad faith, or
the amendment would be futile.” Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th
Cir. 2008) (citing HCMF Corp. v. Allen, 238 F.3d 273, 276–77 (4th Cir. 2001)).
Under these standards, Plaintiffs must first satisfy the Court that good cause exists for the
untimely amendment. “Because a court’s scheduling order is not a frivolous piece of paper, idly
entered, which can be cavalierly disregarded by counsel without peril, a movant must demonstrate
that the reasons for the tardiness of his motion justify a departure from the rules set by the court in
its scheduling order.” Hartford Accident & Indemnity, 2016 WL 386218, at *5 (quoting Odyssey

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Travel Ctr., Inc. v. RO Cruises, 262 F. Supp. 2d 618, 632 (D. Md. 2003)). In this case, the Court
concludes that Plaintiffs had good cause for the delay:

the factual basis for the proposed

amendment was not available to them until CABS responded to discovery, at which point, the
scheduling order’s deadline had already elapsed. (Mot. Amend Mem. Supp. at 3.) Plaintiffs cite
to specific documents and interrogatory answers produced in discovery relating to CABS’s
formation, finances, and operations, which they argue form the basis of Diane Hardesty’s alleged
individual liability and which they claim were not known or available to them prior to receiving
discovery on August 17, 2018. (See Reply Mot. Amend at 3–4, ECF No. 62.) The Court is
satisfied that, under these circumstances, Plaintiffs could not “reasonably [have] met” the
scheduling order’s deadline for amendment. Cook, 484 F. App’x at 815 (quoting 6A Wright &
Miller § 1522.2)).
Furthermore, Plaintiffs otherwise appear to have acted promptly to honor deadlines and
minimize delay, sending discovery requests the day after entry of the scheduling order and filing
the present motion within two weeks of production. (Reply Mot. Amend at 6; Mot. Amend Mem.
Supp. at 4.) Accordingly, the Court is further satisfied that Plaintiffs acted with the requisite
diligence to comply with Court-ordered deadlines. Cook, 484 F. App’x at 815; see also Rassoull
v. Maximus, Inc, 209 F.R.D. 372, 374 (D. Md. 2002) (referring to “diligence” as the “primary
consideration” in a Rule 16(b) inquiry). Therefore, “good cause” exists under Rule 16(b)(4).
Now the Court must turn to Rule 15. Although CABS has not consented to amendment
(Opp’n Mot. Amend, ECF No. 61), it does not argue that amendment would be prejudicial or futile,
or that it was made in bad faith. Nourison Rug Corp., 535 F.3d at 298. CABS’s only objection
stems from timing concerns—namely, that Plaintiffs did not attempt to add Diane Hardesty as a
defendant at an earlier time. (Opp’n Mot. Amend at 2.) The interest in timeliness was already

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addressed by the Court’s conclusion that Plaintiffs satisfied Rule 16(b)(4)’s good cause
requirement. CABS raised no other objections—and the Court sees no grounds for any—that
would convince the Court not to permit amendment under Rule 15(b)’s liberal standard.
Accordingly, Plaintiffs motion for leave to amend will be granted.
B.

Motion to Compel Discovery

Under the discovery rules, a party must respond to requests for responses to interrogatories
and to requests for production within thirty days of being served, unless the parties stipulate to a
different deadline. Fed. R. Civ. P. 33(b)(2) (interrogatories); Fed. R. Civ. P. 34(b)(2)(A) (requests
for production). A motion to compel discovery may be made when a party fails to respond to
discovery requests, Fed. R. Civ. P. 37(a)(3)(B), provided the movant first made good faith attempts
to confer with the non-responsive party prior to seeking court action, Fed. R. Civ. P. 37(a)(1).
In this case, Plaintiffs submitted documentation showing that they served CAM and
Hardesty Jr. with discovery requests on July 10, 2018. (Certificate Exh. A, ECF No. 63-2, at 9.)
Neither Defendant responded or objected within thirty days. (Certificate ¶¶ 5–6.) Plaintiffs
attempted to confer with them by letter on August 16, 2018, and again on September 6, 2018, to
no avail. (Certificate Exh. D, ECF No. 63-2, at 40–41.) In their last letter, Plaintiffs requested a
teleconference (id. at 41), but the Defendants failed to appear. (Certificate ¶ 7.) Plaintiffs received
no response to date. (Id. ¶ 8.) This complete failure to engage in discovery renders CAM and
Hardesty Jr. in clear violation of the discovery rules. Defendants, who did not oppose the present
motion, offer no justification or explanation for the lack of response.
Accordingly, Plaintiffs’ motion to compel will be granted. CAM and Hardesty Jr. will be
ordered to respond to Plaintiffs’ discovery requests (Certificate Exh. B, ECF No. 63-2) within

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thirty days. Because neither Defendant raised a timely objection to the requests, any objections,
other than those based on privilege, are likely now waived. See Fed. R. Civ. P. 33(b)(4).
In addition, as a sanction for failure to participate in discovery, the Court will order CAM
and Hardesty Jr. to pay Plaintiffs’ attorneys’ fees in the amount of $470.00 to compensate Plaintiffs
for reasonable expenses incurred in attempting to obtain a response. (Mot. Compel Mem. Supp.
at 3.) See also Fed. R. Civ. P. 37(a)(5)(A) (providing that, upon granting a motion, a court must
“require the party . . . whose conduct necessitated the motion . . . to pay the movant’s reasonable
expenses”).2
Finally, the Court will order CAM and Hardesty Jr. to show cause within thirty days why
further sanctions, including, but not limited to, entry of default judgment, should not be imposed
against them for their failure to respond to discovery. Fed. R. Civ. P. 37(d)(3). Failure to comply
with the show cause order or the order compelling discovery may result in the entry of default
judgment on the claims against them. Fed. R. Civ. P. 37(b)(2)(A)(vi).
C.

Motion for Show Cause Order

Local Rule 101.2(b) requires corporate parties to have new counsel enter an appearance
within thirty days of the withdrawal of counsel. Unlike individual parties, corporate entities cannot
appear pro se. Compare Local R. 101.2(a) with Local R. 101.2(b). Failure to comply with the
thirty-day deadline may result in entry of default judgment. Local R. 101.2(b).
CAM’s counsel moved and was granted leave to withdraw on July 18, 2018. (ECF No. 61.)
More than four months later, CAM has not entered an appearance of counsel. CAM is thus in
Rule 37(a)(5)(A) requires that a non-moving party have the “opportunity to be heard” before ordering it to
pay the movant’s expenses. In this case, Plaintiffs’ motion to compel included an express request for attorneys’ fees.
(Mot. Compel Mem. Supp. at 3.) CAM and Hardesty Jr. did not file in opposition during the fourteen-day response
period, and neither moved for leave to file a late response in the weeks that followed. The Court considers this to be
more than sufficient opportunity to be heard, which both Defendants abandoned through inaction. As a result, the
Court has no reason to believe that any exception—such as that nonresponse was “substantially justified” or that
circumstances make a fee award “unjust,” Fed. R. Civ. P. 37(a)(5)(A)(ii)–(iii)—applies here.
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violation of Local Rule 101.2(b) and appears to be in default. Accordingly, the Court will order
CAM to enter an appearance of counsel and show cause within thirty days why default or default
judgment should not be entered on the claims against it. Local Rule 101.2(b); see also Symeonidis
v. Paxton Capital Grp., Inc., 220 F. Supp. 2d 478, 486, 486 n.17 (D. Md. 2002).
IV.

Conclusion
For the foregoing reasons, an Order shall enter: (1) granting Plaintiffs’ motion for leave to

amend the Complaint; (2) granting Plaintiffs’ motion to compel Defendants Clean Air Mechanical,
Inc. and James Hardesty Jr. to respond to discovery requests; and (3) granting Plaintiffs’ motion
for a show cause order against Clean Air Mechanical, Inc. with respect to its failure to enter an
appearance of counsel pursuant to Local Rule 101.2(b), and ordering it to enter an appearance of
counsel and show cause, within thirty days, why default judgment should not be entered against
it. In addition, an Order shall enter ordering Defendants Clean Air Mechanical, Inc., and James
Hardesty Jr. to pay Plaintiffs’ attorneys’ fees in the amount of $470.00, and further ordering them
to show cause, within thirty days, why additional sanctions, including, but not limited to, judgment
on claims against them, should not be imposed pursuant to Federal Rule of Civil Procedure 37(d).
DATED this 30th day of November, 2018.

BY THE COURT:

/s/
James K. Bredar
Chief Judge

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