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
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