Hendricks v. The Quikrete Companies, Inc.

Filing 45

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 4/5/2017. (kns, Deputy Clerk)

IN TilE UNITED STATES DISTRICT COURT
FOR HIE DISTRICT OF MARYLANI>
SOlllltem Divisioll

MARIT A HENDRICKS,

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Plaintiff,

v.

Case No.: G,IH-14-269S

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THE QUIKRETE COMPANIES, INC.

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Defendant.

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MEMORANDUM OPINION
PlaintilTMarita
against her employer.
violations

Hendricks

(""Plaintilf'

the Quikrete

or "Ilendrieks")

Companies

C'Defendant'.

liled suit on August 20. 2014
or "Quikrete").

under Title V II of the Civil Rights Act of 1964. the Americans

alleging various

with Disabilities

Act.

and the Equal Pay Act. The case was stayed on July 29. 2015. and the matter was relerred to
Magistrate

Judge Charles

Defendant's

B. Day for mediation.

ECF No. 23. Now pending before the Court is

Motion to Dismiss for Lack of Prosecution.

lOCI' No. 37. and Plaintiffs

Motion to

Liti Stay. IOcr No. 38. No hearing is necessary.

See Loe. R. 105.6 (D. Md. 2016). For the

f()lIowing reasons. the Court denies Defendant's

Motion to Dismiss for Lack of Prosecution

grants Plaintitrs

I.

and

Motion to Liti Stay.

BACKGROUND
Plaintiff tiled an amended

Opportunity
Determination

COlllmission

Charge of Discrimination

C'EEOC")

with the Equal Employment

on May 30. 2012, and the EEOC issued its linal

on March 31. 2014. IOcr No. I ~~ 5-7. Hendricks

Sue on May 22. 2014, ill. ~ 8. and tiled the instant Complaint

received her Notice of Right to

in this Court on August 20. 2014.

Ecr No. I. Defendant filed an Answer to the Complaint on November 25.2014. ECF No. 10.
the Court entered a Scheduling Order. ECF No. 15. and the parties proceeded to engage in "some
written discovery:' see ECF No. 37-1 at 2.1 On July 24. 2015. the parties jointly moved the Court
to stay the case and refer the matter to a Magistrate Judge for a settlement conference: ECF No.
22: ECF No. 23.
Judge Day scheduled a selliement conference for October 14. 20 IS. ECr No. 25.
However. on September 30. 2015. Plaintiffs counsel Jeanell Ilenry informed Defendant's
counsel that she intended to withdraw. and did so on Octobcr 14. 20 IS. See ECF NO.3 7-4 at 3:
Ecr No. 27. Following a conference call between the parties and Judge Day on Octobcr 7. 2015.
the settlement eonferencc was cancelled. See ECF NO.3 7-1 at 3: ECF NO.3 7-6 at 2. Ilendricks
was advised that she could participate in the settlement conference without an attorney. ECF No.
37-8 at 2. On January 5. 2016. the settlement conference was rescheduled for February 12.2016.
ECF No. 32. but I lend ricks contacted Judge Day's chambers on January 18. 2016. notifying
Judge Day that she had not obtained a new attorney. and requesting a continuance until she could
obtain legal representation. ECF No. 37-9 at 2.
Following a telephone status confCrence with this Court on January 27. 2016. the Court
provided Plaintiff until March 2. 2016 to retain replacement counsel. See ECF No. 34. On March
2. 2016. Plainti fTadvised the Court via telephone conlerence that she had retained counsel. See
ECF No. 37-1 at4. However. Plaintiffs new lawyer. Torrance Colvin. did not enter his
appearance with the Court until May 18.2016. ECF No. 36. Delendant's counsel reached out to
Mr. Colvin on May 18.2016. inquiring as to whether Ms. Hendricks would be "still amenable to
holding a selliement conference:'

I Pin cites to documents

ECF No. 37-10 at 2. Mr. Colvin responded on July 5. 2016.

filed on the C01ll1"s electronic tiling

by that systelll.

2

system (CM/ECF)

refer to the page numbers generated

stating that "Ms. Hcndricks would likc to proceed forward. Is your clicnt willing to conscnt to a
motion to lili the currcnt stay ofdiscovcry?"

ECF No. 37-11 at 3. Defcndant's counsel rcplicd

that ..[tlhe case was in a holding pattcrn in order fl)r your client to retain counsel to reprcsent her
at thc settlement confcrence'" Id. Plaintiff allegedly did not respond to this email or to a followup cmail. EO' No. 37-1 at 4.
In responsc to correspondcncc !I'om this Court on August 18. 2016. Mr. Colvin stated via
cmail on August 18.2016 that "[hlaving had extensive conversation with Plaintiff: it is her
intcntion to procecd forward without mediation at this point in timc. Plaintiff would likc for thc
stay to be lined'" ECF No. 37-13 at 2. The Court thcn directed Counsel to ..tile a status report on
thc docket." Id Plaintiff did not tile a status rcport. Instead. it was not until February 2. 2017 that
Mr. Colvin emailed Dcfendant's counsel. indicating that PlaintilT"intends to tile a Motion to Lili
the Stay in this casc. Does Defendant consent?" ECF No. 37-14 at 2. On that samc day.
Defendant filed the presently pending Motion to Dismiss for Lack of Prosecution. ECF No. 37.
and PlaintilTalso tiled a Motion to Lin Stay. ECF No. 38. In thc Motion to Lin Stay. counsel for
Plaintiff further explaincd that:
Undersigncd counsel's lather was diagnoscd with stage Illllr canccr
on July 23, 2016. Undcrsigncd counscl spent much of the next
three months prior to his lathcr's passing on October 26, 2016 in
Boston at Dana Farber Cancer Institutc. Due to travel and lack of
adequatc staff: undersigned counsel did not immcdiately tile a
motion to lin thc stay.
ECF No. 38 at 2.
II.

ANALYSIS

Under Fcd. R. Civ. P. 41 (b). the Defendant "may move to dismiss thc action or any e1aim
against it'" whcre the PlaintilThas failed to prosccutc thc action or failed to comply with thc
Rules or thc Court's ordcrs. Fed. R. Civ. P. 41(b). Unless othcrwise statcd, dismissalundcr
,

-'

Rulc

41 (b) "operates as an adjudication on the merits:' that is. with prcjudice. Rahim. Inc.

I'.

Mine/hoard.lnc .. No. CY GLR-16-1155. 2017 WL 1078409. at *2 (D. Md. Mar. 22.2017)
(quoting Fed. R. Civ. 1'. 41 (b)). A dismissal with prejudice under Rule 41 (b) is "a harsh sanction
which should not be invoked lightly:' particularly because the Fourth Circuit recognizes "the
sound public policy of deciding cases on their merits," It!. (citing Dm'is \'. Williams. 588 F.2d 69.
70 (4th Cir. 1978)). Accordingly. the Court must consider four factors before dismissing a case
for failure to prosecute: "( 1) the plaintilr s degree of personal responsibility: (2) the amount of
prejudice caused the defendant: (3) the presence of a drawn out history of deliberately
proceeding in a dilatory fashion: and (4) the effectiveness of sanctions less drastic than
dismissal."/Jillig

I'.

C.I.R .. 916 F.2d 171. 174 (4th Cir. 1990).

Considering the first and third factors together. the record does not demonstrate
substantial "personal responsibility" on the part of Hendricks. nor does it show the "presence of a
drawn out history of deliberately proceeding in a dilatory fashion," Although DetCndant claims
that Hendricks personally failed to respond to two emails Irom Delendant's counsel to Judge
Day whcrc Hendricks was copied. ECF No. 37-1 at 3-4. the vast rcmaindcr of the cited delays
arose Ii'om the evidently unexpected withdrawal of Hendricks' lirst attorney on October 14.
2015. See ECF No. 37-8 at 3 (Hendricks stating that "[iJt's been extremely difficult with my
former Atty suddenly deciding alier one year into it to Quit!" in an email dated December II.
2015): ECF No. 37-9 at 2 (Hendricks noting "the abrupt way Ms. Ilenry abandon[edJ my case
alier handling for more than I year" and expressing intent "to continue this case" in an email
dated January 18.2(16). "A dismissal sanction is usually inappropriate when it unjustly
penalizes a blameless c1icnt lor the attorney's behavior," llillig. 916 F.2d at 174.

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Additionally. courts in this jurisdiction have found that "Iililure to secure counsel because
of financial inability is not ... dilatory conduct by [l'laintifilunder
Rahim. Inc. \'. Mindhoard. /nc .. No. CV GLR- I6-1155.2017
22. 2017): see a/so U/yssix Techs .. Inc.

1'.

the third Rule 4 I(b) filctor:'

WL 1078409. at *2 (D. Md. Mar.

Urhi/a/ Nef11'orkEng 'g. /nc .. No. ELlI-! 0-2091. 20 I I

WL 5555853. at *1. 3 (D. Md. Nov. 15.201 I) (holding that a party's financial inability to secure
replacement counsel was not "accompanied by a degree of culpability or prejudice to other
parties" such that would support dismissal with prejudice). The record here shows that Hendricks
was trying to acquire legal representation. but was experiencing "difficulties [particularly] at this
time of the year:' ECr No. 37-8 at 3. The cases cited by Defendant. see ECF No. 37-1 at 7. arc
inapposite. as they involve situations where a party failed to comply with a scheduling order or
respond to a Motion to Dismiss. Lacey

1'.

Coh'ill. No. CIV. TMD 14-1837.2015 WL 5602878. at

*2 (D. Md. Sept. 22. 20 IS). or ..tailed to engage in any form of meaningful discovery:'
Gorkom

1'.

Dell/sche Bank. No. CIV.WDQ-04-2802.

Van

2007 WL 5065533. at *2 (D. Md. July 12.

2007). Indeed. in this case. there can be no allegation that I'laintifThas failed to participate in
discovery. as the original scheduling order in this case has been stayed. See Rahim. Inc. ,'.
Mind/ward. /nc .. No. CV GLR- I6- I 155. 20 17 WL 1078409. at *2 (D. Md. Mar. 22. 2017)
(rejecting arguments that I'laintiffwas

acting in a dilatory filshion for declining Defendants'

attempts to schedule depositions because I'laintiffwas

under no obligation to comply until Court

entered a scheduling order).
Thus. while Hendricks may have been less than diligent in responding to some
communications during her time acting as a pro se litigant. the record as a whole docs not
establish a degree of personal responsibility warranting dismissal of her case. The lirst and third
factors of !fillig do not weigh in Defendant's favor.

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With respect to the second f~letor,prejudice caused to the Defendant. Defendant claims
that "[t]he facility at which PlaintifTworked closed during her eighteen-month delay:') and
"[w]itness[esrmemories

have likely f~lded:' ECF No. 37-1 at 9. But there is no reason to believe

that such challenges will impact Defendant more than Plaintill: and Defendant has not claimed
that relevant records would no longer be available, or that witnesses could not be found with the
exercise of reasonable effort. See McCol'
,

I'.

Conrol', No. CIV. WDQ-O 1.1581,2015
.

WL

1085129, at *4 (D. Md. Mar. 9, 2015) (declining to dismiss case where "[t]he Plaintiffs base file
and ... records would not have been 'lost' in the closing of[the facility]:' and "[a]lthough
certain records may no longer be available for the relevant period, other relevant records or
information (some of which has been provided by the Plaintiff) are attainable"). Thus, any
prejudice to the Defendant is minimal.
Finally, in consideration of whether there are lesser sanctions available, "the Fourth
Circuit has recognized that lesser sanctions can include any court orders that clearly contemplate
punishment lor noncompliance and that pursue subsequent conformity." flaplisle, 2015 WL
57 J 41 03, at *4 (citing Anderson

1'.

FOl/nd.jiJl" Adl' .. Edl/c. & Emp'l !!fAmer. Indians, 155 F.3d

500, 505 (4th Cir. 1(98) (internal alterations omitted)). Dismissal is a "drastic" sanction not "to
be invoked lightly." Ballard \'. Car/soli. 882 F.2d 93, 95 (4th Cir. 1(89). Given the Court's
consideration of the first three filctors, the Court finds that such a sanction is not required here.
Baplis!e, 2015 WL 5714103. at *3 (denying motion to dismiss for failure to prosecute because
"although Plaintiffs conduct [by failing to timely respond and failing to communicate with
Defendants about lack of response] in this case was not exemplary and should be admonished:
there is no evidence of bad f~lith"). Plaintiff is warned. however. that future failure to abide by
Defendant attaches the Declaration of Mark Mulcahv. Vice President of Human Resources farthe Quikrctc
Companies. stating that the facility \'~:hereIlcndricks \vorked was closed on December 31, 2016. ECF No. 37-15 at
2.
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applicable Local and Federal Rules. as well as a failure to comply with Orders from this Court.
will result in the dismissal of her case with prejudice.)
III.

CONCLUSION
For the foregoing reasons. Defendant's Motion to Dismiss for Want of Prosecution. ECF

No. 37-1 at I. is denied. and Plaintiffs Motion to Liti Stay. ECF No. 38. is granted. A separate
Order shall issue.

Date: April

hI<

1.2017

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GEORGE J. HAZEL
United ,States District Judge

, The Court will convene a scheduling call and impose deadlines for completion of discovery and dispositive
motions consistent with the parties' proposal in the original request for a stay. ECF No. 22 at 2.

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