McFeeley et al v. Jackson Street Entertainment, LLC et al
Filing
53
MEMORANDUM OPINION (c/m to Nicole Gray and Clementina Ibe for Plaintiff Scharlene Alugbuo 8/19/14 sat). Signed by Chief Judge Deborah K. Chasanow on 8/19/14. (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”) collective action is Defendants’
motion
to
dismiss
for
lack
of
prosecution
Nicole Gray and Scharlene Alugbuo.
briefed,
and
necessary.
the
court
now
Local Rule 105.6.
as
to
Plaintiffs
The issues have been fully
rules,
no
hearing
being
deemed
For the following reasons, the
motion to dismiss will be granted in part and denied in part.
In
addition,
November
6,
Ms.
2014
Alugbuo’s
to
file
a
representative
motion
for
will
have
substitution
until
of
the
estate.
I.
Background
Plaintiffs
filed
their
complaint
in
the
United
States
District Court for the District of Maryland on March 3, 2012.
(ECF No. 1).
Following conditional certification, Ms. Alugbuo
filed her consent to “opt-in” as a plaintiff on February 4,
2013.
(ECF No. 21).
Ms. Gray filed her consent to “opt-in” as
a plaintiff on February 12, 2013.
(ECF No. 22).
Ms. Gray and
Ms. Alugbuo were scheduled to be deposed on September 25, 2013.
(ECF No. 47-2, at 3).
their
depositions,
October 2, 2013.
so
Both Plaintiffs failed to appear for
the
parties
agreed
(ECF No. 47 ¶ 6).
to
reschedule
for
Plaintiffs did not appear
for their October depositions, (Id. at ¶ 10), so a third set of
depositions was scheduled for December 2, 2013 (Id. at ¶ 7).
Plaintiffs once again failed to appear.
(Id. at ¶ 11).
On November 26, 2013, Plaintiffs’ counsel filed a motion to
withdraw as counsel for Ms. Gray and Ms. Alugbuo.
(ECF No. 42).
Plaintiffs’ counsel stated that Ms. Gray and Ms. Alugbuo have
been completely unresponsive to all attempts of communication
and have offered no reason for their failure to appear at the
scheduled depositions.
Id.
The motion to withdraw as counsel
was granted on December 2, 2013.
(ECF No. 44).
A copy of the
order was sent to Ms. Gray and Ms. Alugbuo, and neither has
responded.
2013.
(ECF No. 47 ¶ 14).
Discovery closed on December 3,
(Id. at ¶ 15).
On January 21, 2014, Defendants filed a motion to dismiss
for lack of prosecution as to Ms. Gray and Ms. Alugbuo pursuant
to Federal Rule of Civil Procedure 37 and Local Rules.
47).
(ECF No.
On July 25, 2014, a letter from the court was mailed to
Plaintiffs,
giving
them
seventeen
(17)
days
to
respond
and
advising Plaintiffs that if they failed to respond, the case may
2
be dismissed against them.
(ECF Nos. 49 and 50).
The letter to
Ms. Gray was returned as undeliverable on August 4, 2014.
(ECF
No. 51).
On August 8, 2014, Ms. Alugbuo’s mother Clementina Ibe
filed
opposition
an
to
the
motion
to
dismiss
intimates that Ms. Alugbuo has passed away.
in
which
(ECF No. 52).
she
Ms.
Ibe requests an extension of time to explain her daughter’s
failure to appear at the scheduled depositions and to explain
why Ms. Alugbuo, or her estate, should remain a part of this
action.
II.
Id.
Analysis
a.
Plaintiff Nicole Gray
Pursuant to Rule 37(d), courts may impose certain sanctions
on a party who fails to appear for properly noticed depositions.
See
Fed.R.Civ.P.
37(d)(1)(A)(i).
Such
sanctions
include
“dismissing the action or proceeding in whole, or in part,” or
issuing
a
default
37(b)(2)(A)(i)-(vi).
judgment.
When
Fed.R.Civ.P.
assessing
the
37(d)
&
appropriateness
of
sanctions under Rule 37(d), the United States Court of Appeals
for the Fourth Circuit requires consideration of four factors:
(1) whether the noncomplying party acted in bad faith; (2) the
amount
of
prejudice
his
noncompliance
caused
his
adversary,
which necessarily includes an inquiry into the materiality of
the evidence he failed to produce; (3) the need for deterrence
of
the
particular
sort
of
noncompliance;
3
and
(4)
the
effectiveness of less drastic sanctions.”
Mut. Fed. Sav. & Loan
Ass’n v. Richards & Associates, Inc., 872 F.2d 88, 92 (4th Cir.
1989).
where
This district has found that dismissal is appropriate
a
plaintiff
has
completely
discovery or otherwise respond.
failed
to
participate
in
See Hughley v. Leggett, No. DKC
11-3100, 2013 WL 3353746, at *2 (D.Md. July 2, 2013).
An
analysis
dismissal
as
of
to
unresponsiveness
the
Ms.
in
four
factors
Gray.
this
First,
case,
Ms.
without
any
excuse, is enough to presume bad faith.
appear
to
attempts
cannot
three
of
scheduled
communication
adequately
participation.
unresponsiveness
prepare
Third,
and
depositions
clearly
for
the
lack
of
supports
a
need
order
Gray’s
of
complete
justification
or
Second, her failure to
or
to
prejudices
trial
to
an
respond
to
any
Defendants,
who
without
deter
participation
Ms.
this
in
the
Gray’s
level
of
discovery
process is obvious, as it delays the resolution of disputes.
Fourth, as Ms. Gray has failed to respond to the granting of her
own counsel’s motion to withdraw as counsel or to the letter
sent by the court, it is clear that her behavior would not be
altered by less drastic sanctions.1
Accordingly, Ms. Gray will
be dismissed from the case pursuant to Rule 37(d).
1
Although the Rule 12/56 letter mailed to Ms. Gray came
back undeliverable, earlier communications mailed to the same
address were not returned.
Parties are required to keep
addresses up to date.
4
b.
Plaintiff Scharlene Alugbuo
Ms. Ibe’s filing of an opposition to Defendants’ motion to
dismiss will suffice as a suggestion of death under Federal Rule
of Civil Procedure 25(a).
Pursuant to Rule 25(a)(1), a court
“may” order substitution of a proper party “[i]f a party dies
and the claim is not extinguished.”
Fed.R.Civ.P. 25(a)(1).
The
claims in the instant case are not extinguished, as the causes
of
action
–
violations
Plaintiff’s death.
of
the
FLSA
and
the
MWHL
–
survive
See Acebal v. United States, 60 Fed.Cl. 551,
557 (Fed.Cl. 2004) (holding that FLSA claims survive to the
representatives of the decedent’s estate); see also Bilanow v.
United States, 309 F.2d 267, 268 (Ct.Cl. 1962) (“The right to
employment and to earn a living free from undue molestation is a
property right affecting the estate of plaintiff. Such right
does not abate upon [her] death.”).
The motion for substitution must be made within ninety (90)
days of service of a statement noting the death, or the claim
will
be
dismissed.
See
Fed.R.Civ.P.
25(a)(1).
Ms.
Ibe
submitted a statement noting Ms. Alugbuo’s death on August 8,
2014.
(ECF No. 52).
Therefore, Ms. Ibe has until November 6,
2014 to file a motion for substitution of the estate and to
serve the motion on the parties as provided by Rule 5 and on
nonparties as provided by Rule 4.
(3).
See Fed.R.Civ.P. 25(a)(1) &
The estate must be represented by counsel because all
5
parties other than individuals can only appear through counsel.
See Local Rule 101.1(a).
III. Conclusion
For the foregoing reasons, the motion to dismiss for lack
of prosecution as to Plaintiff Gray will be granted, and the
motion
to
Alugbuo’s
dismiss
Plaintiff
representative
is
Alugbuo
ordered
will
to
be
file
denied.
Ms.
a
for
motion
substitution of the estate no later than November 6, 2014.
separate order will follow.
________/s/________________________
DEBORAH K. CHASANOW
United States District Judge
6
A
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?