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Wilson v. On Rise Enterprises, LLC

United States District Court, District of Columbia

January 30, 2019

INDAH WILSON, Plaintiff,
v.
ON THE RISE ENTERPRISES, LLC and OJI A. ABBOTT, Defendants.

          MEMORANDUM AND ORDER

          BERYL A. HOWELL CHIEF JUDGE

         The plaintiff in this case, Indah Wilson, has stopped participating in this litigation. Her absence supplies the basis for three now-pending motions and for their resolution. First, the two remaining defendants, On the Rise Enterprises, LLC (“OTR”) and Oji Abbott, have moved, consistent with Federal Rule of Civil Procedure 37, to sanction the plaintiff for violating her discovery obligations. See Defs.' Rule 37 Motion Disc. Sanctions (“Defs.' Mot.”), ECF No. 34. Second and third, the plaintiff's two attorneys have moved to withdraw their appearance. See Mariusz Kurzyna Mot. Withdraw Appearance (“Kurzyna Mot.”), ECF No. 33; Brent Ahalt Mot. Withdraw Appearance (“Ahalt Mot.”), ECF No. 35. Although neither motion to withdraw gives a reason for the motion, the plaintiff's inattentiveness to this case has been a persistent problem since at least July 2018, and previously has been cited for why at least one of the plaintiff's attorneys considered withdrawing from the case. See Discovery Conf. Rough Tr. (Nov. 20, 2018) at 6:8-18 (plaintiff's counsel explaining that “I was unable to get a hold of [the plaintiff] for a significant amount of time. . . . And, frankly, I was ready to give up and withdraw from this representation”); see also Sealed Decl. of Mariusz Kurzyna (“Kurzyna Decl.”), ECF No. 32 (explaining difficulty communicating with the plaintiff).[1] Indeed, because the plaintiff neglected this case for so long, no discovery was completed by the initial discovery deadline. Discovery Conf. Rough Tr. (Nov. 20, 2018) at 3:17-18.

         For the reasons described below, the defendants' motion for sanctions is granted in part and denied in part. The defendants' motion is granted insofar as it seeks dismissal of this action and denied insofar as it requests that the plaintiff be held in contempt and that the defendants' costs incurred preparing for the plaintiffs deposition be reimbursed. Additionally, each attorney's motion to withdraw is denied as moot because this case is being dismissed.

         I. BACKGROUND

         On November 11, 2016, the plaintiff instituted an action against OTR, Abbott, and Dominique Brooks, in which the plaintiff alleged that she had worked for over ten years at the restaurant Oohhs & Aahhs without ever being paid. Compl. ¶¶ 1, 7, 15, ECF No. 1. Each defendant moved to dismiss the complaint. See OTR & Abbott's Mot. Dismiss, ECF No. 8; Brooks's Mot. Dismiss, ECF No. 16. After re-assignment to the undersigned judge, see Reassignment of Civil Case, ECF No. 19, OTR and Abbott's joint motion to dismiss was granted in part and denied in part, while Brooks's motion was granted, see Order (Mar. 31, 2018), ECF No. 21. The plaintiff was permitted to proceed against OTR and Abbott with three of her claims-two under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and one under the District of Columbia's Wage Payment Act, D.C. Code § 32-1301 et seq., see Order (Mar. 31, 2018); Compl. ¶¶ 25-44.

         After ruling on the motions to dismiss, the Court set a schedule for further proceedings. Min. Order (Apr. 25, 2018). That schedule gave the plaintiff until May 24, 2018 to amend her complaint and the parties until November 20, 2018 to complete discovery. Id. By the first deadline, the plaintiff amended her complaint, adding a claim under the District of Columbia's Minimum Wage Act, D.C. Code § 32-1001 et seq. See Am. Compl. ¶¶ 33-42, ECF No. 27. The two remaining defendants filed timely answers. See OTR Answer, ECF No. 28; Abbott Answer, ECF No. 29.

         Three days before the discovery deadline, the plaintiff sought a six-month extension of that deadline, disclosing that she “has been incapacitated by circumstances of an extreme personal nature, which have prevented her from participating in discovery and made her unavailable for deposition.” See Pl.'s Mot. Extension at 1, ECF No. 30. The plaintiff authorized her attorney to share information about the hardship on the condition of confidentiality. Id. The plaintiff's counsel explained that he had been slow seeking an extension because he “learned the full extent of Plaintiff's hardship only recently.” Id.

         The Court directed the defendants to respond to the plaintiff's motion and the plaintiff to file under seal the reason for her incapacitation. Min. Order (Nov. 19, 2018). The defendants' response opposed the extension until the plaintiff provided more information. Defs.' Opp'n Pl.'s Mot. Extension (“Defs.' Extension Opp'n”) at 1, ECF No. 31. The defendants added that they had been trying for four months to schedule the plaintiff's deposition but were unable to do so because the plaintiff's counsel had been unresponsive. Id.; see also Defs.' Extension Opp'n, Ex. A, ECF No. 31-1 (attaching counsels' emails about scheduling the plaintiff's deposition). Indeed, the defendants had noticed the plaintiff's deposition for October 25, 2018, and sought confirmation of the plaintiff's availability multiple times, only to have the plaintiff's counsel, on the morning the deposition was scheduled, report the plaintiff's unavailability. Defs.' Extension Opp'n, Ex. A at 1-2; see also Defs.' Extension Opp'n, Ex. B, ECF No. 31-2 (attaching counsels' emails confirming cancellation of deposition).

         On November 20, 2018, after the plaintiff's counsel filed a sealed declaration about the plaintiff's hardship, see Kurzyna Decl., the court held a discovery conference, see Min. Entry (Nov. 20, 2018). At the conference, the plaintiff was given a two-month extension of the discovery deadline, until January 22, 2019. Discovery Conf. Rough Tr. (Nov. 20, 2018) at 12:13-25; see also Min. Order (Nov. 20, 2018). The Court further ordered “that, if noticed, the plaintiff shall appear for her deposition within the period scheduled for discovery.” Id.

         Later on the day of the discovery conference, the parties started coordinating a date for the plaintiff's deposition. Defs.' Mot. at 2; see also Defs.' Mot., Ex. A at 3, ECF No. 34-1 (attaching counsels' emails about scheduling the plaintiff's deposition). The defendants' counsel offered several dates and asked that, by November 26, 2018, the plaintiff's counsel identify a suitable date. Defs.' Mot., Ex. A at 2-3. The plaintiff's counsel did not respond, so the defendants' counsel noticed the plaintiff's deposition for December 19, 2018. Id. at 2. That date, however, did not work for the plaintiff. Id. Although the plaintiff's counsel proposed January 15, 2019 as an alternative, the defendants' counsel responded that her “client does not wish to wait until 7 days before discovery closes to take this deposition” and that she would “need ample time to timely serve other discovery requests based on [the plaintiff's] deposition testimony.” Id. The defendants' counsel then offered December 17 and 18, 2018. Id. In response to that offer, the plaintiff's counsel said that he was “trying to figure out when it would be possible for [the plaintiff] to travel from New York where she has child custody during the week.” Id. At last, on November 27, 2018, the defendants' counsel re-noticed the plaintiff's deposition for December 18, 2018 and said that she would keep that date “unless there is a good reason not to.” Id. at 1.

         The next day, the plaintiff served written discovery requests to the defendants. See Pl.'s Opp'n Defs.' Mot. Disc. Sanctions (“Pl.'s Opp'n”) at 4 n.2, ECF No. 36; Joint Status Report (“JSR”) at 1, ECF No. 37. Those requests had a December 28, 2018 return date, but the defendants never complied. JSR at 1.

         On December 14, 2018, the defendants' counsel alerted the plaintiff's counsel that “[the plaintiff] has confirmed to [the defendant] that she has no plans to attend her deposition at any time” but added that the plaintiff had not given “official notification that she is not attending.” Defs.' Mot., Ex. B, ECF No. 34-2 (attaching counsels' emails confirming cancellation of deposition). Three days later, and a day before the scheduled deposition, the plaintiff's counsel responded that he is “unable to confirm [the plaintiff's] attendance tomorrow.” Id. An hour later, the plaintiff's counsel confirmed that the plaintiff would not attend. Id.

         On the same day that Kurzyna, the plaintiff's attorney who had been communicating about the plaintiff's deposition, confirmed the plaintiff's unavailability, he moved to withdraw his appearance. See Kurzyna Mot. The next day-when the plaintiff's deposition had been scheduled-the defendants moved to sanction the plaintiff, asking that the case be dismissed, the plaintiff be held in contempt, and that defense counsel's expenses incurred preparing for the plaintiff's deposition be reimbursed. Defs.' Mot. at 1. One day later, the plaintiff's second attorney filed his motion to withdraw. See Ahalt Mot. Although Kurzyna already had moved to withdraw from the case, he ultimately responded on behalf of the plaintiff to the defendants' motion for sanctions. See generally Pl.'s Opp'n.

         Finally, the parties filed, on January 22, 2019, the day discovery concluded, a joint status report. See generally JSR. In it, the parties wrote that the “Plaintiff has confirmed to Defendant Abbott ...


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