McFeeley et al v. Jackson Street Entertainment, LLC et al

Filing 131

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 4/13/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
LAURA MCFEELEY, et al.
:
v.

:

Civil Action No. DKC 12-1019

:
JACKSON STREET ENTERTAINMENT,
LLC, et al.

:

MEMORANDUM OPINION
Presently pending and ready for resolution in this Fair
Labor Standards Act (“FLSA”) case is a motion to compel, for
contempt, and for sanctions filed by Plaintiffs Laura McFeeley,
Danielle Everett, Crystal Nelson, Danielle Arlean McKay, Jenny
Garcia,

and

Patrice

(ECF No. 128).1
necessary.

Howell

(collectively,

the

“Plaintiffs”).

The court now rules, no hearing being deemed

Local

Rule

105.6.

For

the

following

reasons,

Plaintiffs’ motion will be granted in part and denied in part.
I.

Background
Plaintiffs brought this collective action under the FLSA

and the Maryland Wage and Hour Law.

After the court granted

Plaintiffs’ motion for partial summary judgment, the remaining

1

Although Plaintiffs’ motion is styled only as a “motion
for sanctions and contempt of court,” it is also a motion to
compel.
(See ECF No. 128, at 3 (seeking an order “compelling
Defendants . . . to respond fully to Plaintiffs’ [c]ollection
[i]nterrogatories”)).

issues went to trial in February 2015.2

Following a three-day

jury

as

trial,

the

jury

returned

verdicts

to

the

amount

compensatory damages to which each plaintiff is entitled.
ECF No. 87).
favor

of

of

(See

On February 10, the court entered judgment in

Plaintiffs

and

against

Defendants

Jackson

Street

Entertainment, LLC; Risque, LLC; Quantum Entertainment Group,
LLC; Nico Enterprises, Inc.; XTC Entertainment Group, LLC; and
Uwa

Offiah

severally

(collectively,

for

a

total

the

amount

“Defendants”);

of

$265,276.50,

compensatory and liquidated damages.

jointly
which

and

included

(ECF No. 93).3

On May 19, Plaintiffs filed a motion to recover attorney’s
fees and costs.

(ECF No. 101).

After the Defendants filed an

appeal with the United States Court of Appeals for the Fourth
Circuit, this court stayed the action and deferred ruling on
Plaintiffs’ motion until after the adjudication of the appeal.
(ECF No. 123).

Oral argument is scheduled before the Fourth

Circuit for May 11, 2016.
On January 5, 2016, Plaintiffs served Michael L. Smith,
attorney

for

Defendants,

enforcement of judgment.

2

with

interrogatories

(ECF No. 128-2).

The earlier procedural
relevant to the pending motion.

history

3

of

in

aid

of

When Defendants did

the

action

is

not

The court erred in its initial order by not entering
judgment against Mr. Offiah.
This was corrected by order on
June 23, 2015. (ECF No. 111).
2

not respond timely to the interrogatories, Plaintiffs sent a
letter to Mr. Smith noting that they would “promptly file a
Motion

for

Sanctions

seeking

attorney’s

fees

and

costs”

if

Defendants did not respond to the interrogatories by March 1.
(ECF No. 128-3).

On March 1, Mr. Smith informed Plaintiffs that

his “representation [of Defendants] ended once a final judgment
was entered” and that he continues to represent Defendants only
in their appeal before the Fourth Circuit.

(ECF No. 129-1).

Accordingly, Mr. Smith asserts that he is “not authorized to
accept service for any documents other than those pertaining to
the ongoing appeal.”

(Id.).

On March 15, Plaintiffs filed the

pending motion to compel and for sanctions and contempt.
No. 128).

(ECF

Defendants responded in opposition (ECF No. 129), and

Plaintiffs replied (ECF No. 130).4
II.

Analysis
A.

Defense Counsel’s Purported Withdrawal

Defendants’

opposition

argues

that

Mr.

Smith

no

longer

represents Defendants in this action, and therefore, Defendants
have

not

Plaintiffs

been

served

counter

that

properly
Mr.

with

Smith

4

has

the
not

interrogatories.
withdrawn

his

Although Mr. Smith purports to file the response on his
behalf, and not on behalf of Defendants, for ease of reference
and clarity, the court will refer to the response as being filed
by Defendants.
3

appearance in this action and still represents Defendants.

(ECF

No. 130, at 2-3).
According to Mr. Smith, his representation of Defendants in
this action “terminated on May 5, 2015.”
Mr.

Smith

provides

no

evidence

(ECF No. 129 ¶ 6).

showing

that

Defendants

terminated his representation or that he attempted to withdraw
from

representing

Defendants

in

this

action.

Counsel’s

withdrawal of appearance is governed by Local Rule 101.2.

Local

Rule 101.2 provides, in relevant part:
In the case of any party other than an
individual,
including
corporations,
partnerships,
unincorporated
associations
and
government
entities,
appearance
of
counsel may be withdrawn only with leave of
court and if (1) appearance of other counsel
has been entered, or (2) withdrawing counsel
files a certificate stating (a) the name and
last known address of the client, and (b)
that the written notice has been mailed to
or otherwise served upon the client at least
seven (7) days previously advising the
client of counsel’s proposed withdrawal and
notifying that it must have new counsel
enter an appearance or be subject to the
dismissal of its claims and/or default
judgment on claims against it.
Local Rule 101.2.b.

In addition, “[a]ll parties other than

individuals

represented

must

be

by

counsel.”

Local

Rule

101.1.a; see MHD-Rockland Inc. v. Aerospace Distribs. Inc., 102
F.Supp.3d 734, 737 (D.Md. 2015).

The process to withdraw from

representing an individual is similar, but an individual has the

4

option, after notifying the Clerk, to proceed without counsel.
See Local Rule 101.2.a.
Here, it is clear that Mr. Smith has not withdrawn his
appearance in this action.

He has not complied with any of the

dictates of Local Rule 101.2 and has seemingly made no efforts
to withdraw formally.

Moreover, if Mr. Smith were to withdraw,

all Defendants other than Mr. Offiah would be unable to proceed
without counsel.

Mr. Smith’s assertions to Plaintiffs’ counsel

and in the response to Plaintiffs’ motion are not sufficient to
withdraw.

Accordingly, Plaintiffs have served properly their

interrogatories on Defendants by serving Mr. Smith.
B.

Motion to Compel, for Contempt, and for Sanctions

Plaintiffs

ask

the

court

to:

(1)

compel

Defendants

to

respond fully to Plaintiffs’ interrogatories; (2) order that if
any Defendants fail to comply fully with the order to compel,
that

Defendants

will

be

held

in

contempt;

and

(3)

order

a

“sanction of $500 against Defendants, jointly and severally, for
costs associated with filing this [m]otion.”

(ECF No. 128, at

3-4).
Plaintiffs’

request

for

an

order

holding

Defendants

in

contempt and for sanctions under Federal Rule of Civil Procedure
37(b)(2)(A) is premature.

Rule 37(b)(2)(A) allows the court to

hold a party in contempt only if it “fails to obey an order to
provide

or

permit

discovery.”
5

Fed.R.Civ.P.

37(b)(2)(A)

(emphasis added); see Fisher v. Fisher, No. WDQ-11-1038, 2012 WL
2873951, at *1 (D.Md. July 12, 2012) (“Rule 37(b)(2)(A) applies
only when a party has failed to obey a court order—specifically,
a

discovery

omitted)).

order.”

(citation

and

internal

quotation

marks

Here, Defendants’ failure to provide discovery has

not, to this point, contravened any court order.

Accordingly,

Plaintiffs’ motion will be denied as to the request to hold
Defendants in contempt.
The

Federal

Rules

provide

that

“[i]n

the

aid

of

the

judgment or execution, the judgment creditor . . . may obtain
discovery

from

any

person—including

the

judgment

debtor—as

provided in these rules or by the procedure of the state where
the

court

served

is

located.”

Defendants

(ECF No. 128-2).

with

Fed.R.Civ.P.
interrogatories

69(a)(2).
pursuant

Plaintiffs
to

Rule

33.

Rule 37(a)(3)(B)(iii) allows a party to move

to compel a response if a party fails to answer an interrogatory
submitted

under

Rule

33.

“The

motion

must

include

a

certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court
action.”

Fed.R.Civ.P. 37(a)(1).5

5

Although Local Rule 104.8 sets forth additional procedural
requirements for motions to compel, these procedures are not
required when, as here, “no responses at all have been served.”
See Local Rule 104.8.
6

Here, it is undisputed that Defendants have not responded
to Plaintiffs’ interrogatories.

Plaintiffs attempted to resolve

this issue in good faith by corresponding with Mr. Smith, but
Mr. Smith asserted he does not represent Defendants and failed
to respond to the interrogatories.
the

merits

of

Plaintiffs’

Defendants have not opposed

motion.

motion to compel will be granted.

Accordingly,

Plaintiffs’

Defendants will have thirty

(30) days from the date of this memorandum opinion and order to
respond

fully

or

otherwise

object

to

Plaintiffs’

interrogatories.
Plaintiffs

also

seek

a

“sanction”

of

$500

against

Defendants “for costs associated with filing” the motion.
No.

128,

at

4).

Although

styled

as

a

sanction,

(ECF

Plaintiffs

appear to be seeking payment of expenses under Rule 37(a)(5)(A).
Rule 37(a)(5)(A) provides that if a motion to compel is granted,
“the

court

must,

after

giving

an

opportunity

to

be

heard,

require the party . . . whose conduct necessitated the motion,
the party or attorney advising that conduct, or
movant’s

reasonable

including

expenses

attorney’s

incurred

fees.”

in

both to pay the

making

Fed.R.Civ.P.

the

motion,

37(a)(5)(A).

Plaintiffs provide no documentation supporting their request of
$500, and it is entirely unclear how they arrive at that amount.
Accordingly,

Plaintiffs

shall

file

documentation

supporting

their request for reasonable expenses and attorney’s fees under
7

Rule 37(a)(5)(A) within fourteen (14) days.

Plaintiffs’ request

should comply with the guidelines set forth in Local Rule 109.2.
Defendants’

shall

file

any

opposition

to

Plaintiffs’

request

within fourteen (14) days of service of the request.
III. Conclusion
For

the

foregoing

reasons,

Plaintiffs’

granted in part and denied in part.

motion

will

A separate order will

follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

8

be