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 ...