                           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.
                               -2-
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

                                                   -3-
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.

                                               -4-
              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

                                                -5-
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

                                                       -6-
(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 at

67 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

                                                     -7-
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



                                                        -8-
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).
                                                     -9-
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

                                                     -10-
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

                                                  -11-
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

                                                -12-
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




                                                 -13-
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."
                                         -14-
