Dover v. Medstar Washington Hospital Center, Inc. , 989 F. Supp. 2d 57 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROBERTA DOVER,
Plaintiff,
v. Civil Action No. 13-670 (GK)
MEDSTAR WASHINGTON
HOSPITAL CENTER, INC., et al.,:
Defendants.
MEMORANDUM OPINION
On May 4, 2012, Plaintiff Roberta Dover ("Dover" or
"Plaintiff") brought an action in D.C. Superior Court against
her former employer Defendant Medstar Washington Hospital Center
( "WHC") and Defendants Paul Higgins, William Mullins, and Marie
Boursiquot, WHC employees and managers (collectively,
"Defendants"). On May 9, 2013, Defendants removed the case to
this court.
The matter is presently before the Court on Plaintiff's
Motion for Leave to Amend the Complaint [Dkt. No. 12] and
Defendants' Motion for Section 1927 Sanctions [Dkt. No. 13].
Upon consideration of the Motions, Oppositions, and Replies, the
entire record herein, and for the reasons stated below,
Plaintiff's Motion for Leave to Amend the Complaint is granted
in part and denied in part, and Defendants' Motion for Sanctions
is denied.
I. BACKGROUND
On May 4, 2012, Plaintiff filed her initial Complaint in
D.C. Superior Court. The Complaint alleged intentional
interference with prospective advantage and economic expectancy
(Counts. I and II), intentional misrepresentation (Count III),
and defamation (Count IV). Plaintiff sought an injunction, back
pay, compensatory damages, and punitive damages.
On April 22, 2013, after the original date for the close of
discovery, Plaintiff filed an Amended Complaint adding several
factual allegations and seven new claims. Her new claims alleged
wrongful discharge (Count I), breach of contract (Counts II and
III), breach of the covenant of good faith and fair dealing
(Count IV), negligence (Count V), negligent supervision (Count
VI), and intentional interference with business relations (Count
IX) . Her original intentional interference claims became Count
1
VII and VIII.
On May 9, 2013, Defendants removed the case to this Court,
arguing that the new claims required an interpretation of the
Collective Bargaining Agreement ( "CBA") between MedStar and the
Nurses United of the National Capital Region ("Nurses United").
1
Plaintiff did not include her original defamation or
intentional misrepresentation claims in the Amended Complaint.
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Defendants argued that the common-law claims were preempted by
section 301 of the Labor Management Relations Act ("LMRA"), thus
requiring removal to this Court.
On May 16, 2013, Defendants filed a Motion to Dismiss the
Complaint [Dkt. No. 3]. They sought to dismiss Claims I-VI,
arguing that the claims should be dismissed under the LMRA for
failure to file within the statute of limitations, failure to
allege a breach of the duty of fair representation by a union,
and failure to exhaust remedies under the CBA prior to bringing
suit. Plaintiff's Opposition was due June 3, 2013, but no
opposition was filed.
Instead, a month and a half after the Opposition was due,
Plaintiff filed a Motion for Leave to Amend the Complaint [Dkt.
No. 12]. Plaintiff's proposed Second Amended Complaint consists
of five claims: negligent supervision (Count I), failure to pay
overtime under D.C. Code §§ 32-1301, et seq. (Count II), and
intentional interference with prospective advantage, economic
expectancy, and business relations (Counts III-V) . Defendants
filed an Opposition [ Dkt. No. 14] and Plaintiff filed a Reply
[Dkt. No. 16]. The matter is now ripe for -consideration.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 15 (a) provides that leave
to amend a pleading "shall be freely given when justice so
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requires." The Supreme Court has noted that a district court
should grant leave to amend a complaint "[i]n the absence of any
apparent or declared reason - such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc." Foman v. Davis, 371 U.S.
178, 182 (1962). However, "[w] ithin these bounds, a district
court has discretion to grant or deny leave to amend under Rule
15(a) ." Atchinson v. Dist. of Columbia, 73 F.3d 418, 426 (D.C.
Cir. 1996).
III. ANALYSIS
A. Motion for Leave to File Amended Complaint
Defendants object to the two new claims Plaintiff raises in
her proposed Second Amended Complaint. First, Defendants argue
that Plaintiff's claim for negligent supervision (Count I) was
conceded when Plaintiff failed to respond to arguments raised in
Defendants' Motion to Dismiss against a similar claim for
negligent supervision in the First Amended Complaint. Second,
Defendants argue that Plaintiff's claim for failure to pay
overtime (Count II) is time-barred, and, thus, amending the
complaint to include this claim would be futile. The Court will
address each issue in turn.
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1. Negligent Supervision
Defendants argue that Count I of the proposed Second
Amended Complaint for "Negligent Supervision" parallels Count VI
of the First Amended Complaint. They argue that Plaintiff
conceded that claim lacked merit when she failed to oppose the
arguments raised against it in Defendants' Motion to Dismiss.
Although Defendants recognize that this Court has broad
discretion to treat the absence of a response as a concession
under Local Rule 7 (b) ' that rule is inapplicable here.
Defendants' argument against Plaintiff's claim for Negligent
Supervision in the First Amended Complaint was that it was
"based upon and/ or related to the CBA and the LMRA." See Pl.'s
Reply to Opposition to Motion for Leave to Amend Complaint at 5
[Dkt. No. 16]; Mem. in Support of Defs.' Mot. to Dismiss Counts
I, II, III, IV, V, and VI for Failure to State Claims Upon Which
Relief Can Be Granted at 7 [ Dkt. No. 3-1] (noting that "Count []
. VI require[s] interpretation of the provisions of the CBA
and [is] also preempted by Section 301 of the LMRA"). Because
the proposed Second Amended Complaint no longer bases its claims
on the CBA, the Court finds that the arguments raised in
Defendants' Motion to Dismiss are not applicable to the
Negligent Supervision claim as raised in the Second Amended
Complaint. Thus, Defendants have failed to identify a persuasive
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reason why Plaintiff should not be allowed to pursue her claim,
and the Motion for Leave to Amend Complaint shall be granted as
to Count I.
2. Failure to Pay Overtime
Defendants argue that Count II of the proposed Second
Amended Complaint, a claim for Failure to Pay Overtime under
D.C. law, should be denied as futile because it is time-barred.
Plaintiff's claim arises from D.C. Code §§ 32-1301, et
seq., known as the D.C. Wage Payment and Collection Law
( "DCWPCL") . See Ventura v. Bebo Foods, Inc., 738 F. Supp. 2d 8,
20 (D.D.C. 2010). The statute of limitations for such claims is
three years. See D.C. Code § 32-1013; Ventura, 738 F. Supp. 2d
at 30 ("The statute of limitations under . the DCWPCL .
is only three years.").
No party disputes that Plaintiff's claim accrued on June
25, 2009, the date that Plaintiff was terminated. Defendants
argue that Plaintiff's Motion for Leave to File her Second
Amended Complaint was filed over four years later, and, thus,
the claim is time-barred.
An amendment to a complaint that raises an otherwise time-
barred claim may yet be timely if the amendment "relates back"
to the date of the original complaint under Federal Rule of
Civil Procedure 15(c). See Jones v. Bernanke, 557 F. 3d 670, 674
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(D.C. Cir. 2009). That Rule provides, among other things, that
an amendment relates back if it "asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out-or
at tempted to be set out-in the original pleading." Fed. R. of
Civ. P. 15(c) (1) (B).
Relation back is improper when the amended claim "asserts a
new ground for relief supported by facts that differ in both
time and type from those the original pleading set forth." Mayle
v. Felix, 545 U.S. 644, 650 (2005); see also Jones, 557 F.3d at67 4 ("[A] n amendment that 'attempts to introduce a new legal
theory based on facts different from those underlying the timely
claims' does not relate back.") (citation omitted). Instead,
"[t] he underlying question is whether the original complaint
adequately notified the defendants of the basis for liability
the plaintiffs would later advance in the amended complaint."
Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 866 (D.C. Cir.
2008) .
Plaintiff's original Complaint did not allege any facts
related to wages or overtime. The only facts alleged were that
Plaintiff had "experienced wrongful treatment" by her
supervisors; namely, "gross wrongful disparagement and
harassment." Compl. p. 3 [Dkt. No. 1, Ex. 3]. Consequently, the
original Complaint did not give Defendants notice that they
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might face liability for wage payment violations. For this
reason, Plaintiff cannot include her claim at this late date
because it is time-barred and therefore futile. Plaintiff's
Motion for Leave to Amend Complaint shall be denied as to Count
II.
3. Undue Delay, Prejudice, and Bad Faith
A district court may deny leave to amend a complaint if the
moving party demonstrates "undue delay, bad faith, or dilatory
motive on the part of the movant," among other things.
Atchinson, 73 F.3d at 426. Defendants argue that permitting
Plaintiff to amend her Complaint at all at this late date will
result in undue delay and prejudice, and that Plaintiff's
counsel is acting in bad faith in seeking the amendment. The
Court disagrees.
Any undue delay in this case was caused by Plaintiff's
original Amended Complaint, which added claims that were clearly
insufficient under the LMRA. However, at this point, it appears
to the Court that Plaintiff's counsel is attempting to move
forward in good faith in the best interests of his client,
rather than attempting to delay the case further. As discussed
above, four of the five claims raised in the Second Amended
Complaint may move forward. Thus, the Court finds that the
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attempt to amend the complaint is neither motivated by an
attempt to further delay the case or bad faith.
Even if there was undue delay, such delay is insufficient
to justify denying leave to amend in the absence of a showing
that the opposing party will suffer prejudice. See Caribbean
Broad. Sys., Ltd. V. Cable & Wireless P.L.C., 148 F.3d 1080,
1084 (D.C. Cir. 1998) (discussing cases where district court
abused discretion in denying leave to amend based on delay in
absence of showing of prejudice). There is no prejudice here
because Defendants are free to seek to re-open discovery on the
new claim in D.C. Superior Court after the case is remanded, as
discussed below.
Thus, Plaintiff's Motion for Leave to File an Amended
Complaint is denied as to Count II and granted as to all other
claims. 2
B. Remand to Superior Court
This case was removed to this Court because Plaintiff's
claims that the CBA was violated meant that her common-law
claims were pre-empted by federal law, namely, the LMRA. At this
point, Plaintiff no longer alleges or bases any claims on the
2
Because the Court grants in part Plaintiff's Motion for Leave
to Amend the Complaint, Defendants' Motion to Dismiss [Dkt. No.
3] the original complaint is dismissed as moot. See Johnson v.
Panetta, F. Supp. 2d 2013 WL 3742495, at *5 (D.D.C. July
17, 2013) (granting motion for leave to amend complaint and, "in
doing so," noting that motion to dismiss became moot).
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CBA. Thus, there is no longer federal jurisdiction over this
case.
The Court declines to exercise supplemental jurisdiction
over the remaining claims pursuant to 28 U.S.C. § 1367 (c) (3)
because they all relate to local District of Columbia law. See
Shekoyan v. Sibley Int'l, 409 F.3d 414, 423-24 (D.C. Cir. 2005)
(noting that if "all federal-law claims are dismissed before
trial, the balance of factors to be considered under the pendent
jurisdiction doctrine-judicial economy, convenience, fairness,
and comity-will point toward declining to exercise jurisdiction
over the remaining state-law claims") (quoting Carnegie-Mellon
Uni v. v. Cohill, 4 8 4 U.S. 34 3, 350 n. 7 ( 1988) ) . When a case
removed from state court no longer contains any basis for
federal court jurisdiction, remanding the case to state court is
the proper course of action. See Blue v. Fremont Inv. & Loan,
584 F. Supp. 2d 10, 12 (D.D.C. 2008); see also Randolph v. ING
Life Ins. & Annuity Co., 486 F. Supp. 2d 1, 10 (D.D.C. 2007)
(remanding case to D.C. Superior Court due to lack of subject
matter jurisdiction) . Accordingly, the Court will remand the
remaining claims to the D.C. Superior Court.
C. Sanctions
Defendants have filed a Motion for Section 1927 Sanctions
[ Dkt. No. 13] . Plaintiff filed an Opposition [ Dkt. No. 15] and
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Defendants filed a Reply [Dkt. No. 17]. That Motion is also ripe
for consideration.
28 U.S.C. § 1927 provides that "[a]ny attorney . . who so
multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally
the excess costs, expenses, and attorneys' fees reasonably
incurred because of such conduct."
While it is true that our Court of Appeals "has not yet
established whether the standard [for unreasonable and vexatious
conduct under § 1927] should be 'recklessness' or the more
stringent 'bad faith,'" LaPraude v. Kidder, Peabody & Co., 146
F. 3d 899, 905 (D.C. Cir. 1998), it has noted that although "the
language of § 1927 suggests [that] deliberate misbehaviour,
subjective bad faith is not necessary; attorneys have been held
accountable for decisions that reflect reckless indifference to
the merits of a claim." Reliance Ins. Co. v. Sweeney Corp., 792
F.2d 1137, 1138 (D.C. Cir. 1986) (citation omitted). However,
the Court of Appeals has also stated that "inadvertent I and
negligent acts will not support an imposition of sanctions under
section 1927." United States v. Wallace, 964 F. 2d 1214, 1219
(D.C. Cir. 1992) (quotation and citation omitted).
The Court concludes that the action of Plaintiff's counsel,
in filing an Amended Complaint with claims that were clearly
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inadequate, and which he agreed he had not properly researched,
simply do not meet the very high standard that the Court of
Appeals has relied upon in deciding whether Section 1927
sanctions are appropriate. Moreover, while such sanctions have
been imposed in a number of cases, the conduct sanctioned in
those cases was dramatically different from and more egregious
than what occurred in the present case. See LaPraude, supra;
Robertson v. Cartinhour, Jr., 883 F. Supp. 2d 121 (D.D.C. 2012);
McMahon v. Shearson/American Express, Inc., 709 F. Supp. 369,
372 (S.D.N.Y. 1989), rev'd, 896 F.2d 17 (2d Cir. 1990).
However, the Court remains extremely disturbed about the
propriety of the manner in which Plaintiff's counsel has handled
this case. Among other things, at no time during the nine-month
discovery period did Plaintiff's counsel even attempt to
schedule depositions of defense witnesses; the day that
discovery was to close on December 17, 2012, with no prior
notice to opposing counsel, Plaintiff's counsel requested
consent to extend the Scheduling Order deadlines and the date
for closing of discovery, to which Defendants did consent even
at that 11th hour. Discovery was extended to March 15, 2013. On
February 12, 2013, Plaintiff's counsel filed a Motion for Leave
to Amend the Complaint, and he neglected to send defense counsel
a copy of that proposed Amended Complaint; it took him nine days
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to provide a copy of it to defense counsel. On April 22, 2013,
Plaintiff filed her first Amended Complaint in which six of the
seven new claims were clearly pre-empted by section 301 of the
LMRA, 29 U.S. C. § 185, thereby prompting Defendants to remove
the lawsuit to federal court. Plaintiff's counsel conceded at
the Status Conference on June 21, 2013, that there were "valid
arguments on the defense side" to justify removal to the federal
court, and he had "never had occasion to deal with matters
related to the LMRA." Pl.'s Opp'n at ~ 5. Thereafter, Defendants
moved to dismiss those six claims because Plaintiff did not file
them within the six month statute of limitations applicable
under Section 301 of the LMRA, among other things. Plaintiff's
counsel never filed an Opposition to that Motion or notified the
Court in any fashion that he had no opposition.
What is even more troubling to the Court is that
Plaintiff's counsel obtained a retainer from his client, managed
to use up that retainer, spent most of his time responding to
Defendants' discovery requests, and as soon as the retainer was
used up, and after the Court was about to set a schedule for the
filing of dispositive motions, filed a "consent" motion to
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withdraw, leaving his client at this important juncture in the
litigation without counsel. 3
However, because of the high bar for imposition of Section
1927 sanctions, as noted above, the Court is compelled to deny
Defendants' Motion for Section 1927 Sanctions.
IV. CONCLUSION
Upon consideration of the Motions, Oppositions, Replies,
and the entire record herein, and for the reasons set forth in
this Memorandum Opinion, Plaintiff's Motion for Leave to File
the Amended Complaint is granted in part and denied in part,
Defendants' Motion to Dismiss is denied as moot, and Defendants'
Motion for Section 1927 Sanctions is denied. The case is
remanded to D.C. Superior Court for further proceedings. An
Order shall accompany this Memorandum Opinion.
October 30, 2013 G8~r/M=
United States District Judge
Copies to: attorneys on record via ECF
3
The "consent" referred to opposing counsel; there is nothing in the record
to indicate that his client had "consented."
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