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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

INDAH WILSON,

Plaintiff,

v.

ON THE RISE ENTERPRISES, LLC and OJI 

A. ABBOTT,

Defendants.

Civil Action No. 16-2241 (BAH)

Chief Judge Beryl A. Howell

MEMORANDUM AND ORDER

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
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(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 plaintiff’s deposition be reimbursed. Additionally, each 

attorney’s motion to withdraw is denied as moot because this case is being dismissed.

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.

 

1 This Memorandum and Order does not reference any information that necessitated filing this declaration 

under seal.
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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 
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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 
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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.
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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 directly that she will not appear for her deposition.” JSR at 2.

The three motions are now ripe.

LEGAL STANDARD

Federal Rule of Civil Procedure 37 contemplates sanctions for a host of discovery 

violations. Among them, the court in which the related action is pending may “dismiss[] the 

action or proceeding in whole or in part” if “a party . . . fails to obey an order to provide or 

permit discovery.” FED. R. CIV. P. 37(b)(2)(A)(v). Additionally, sanctions are appropriate if “a 

party . . . fails, after being served with proper notice, to appear for that person’s deposition.” 

FED. R. CIV. P. 37(d)(1)(A)(i). When a party fails to appear for a deposition, suitable sanctions 

include “dismissing the action in whole or in part.” FED. R. CIV. P. 37(d)(3) (incorporating FED.

R. CIV. P. 37(b)(2)(A)(v)). In addition, “the court must require the party failing to act, the 

attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, 

caused by the failure, unless the failure was substantially justified or other circumstances make 

an award of expenses unjust.” Id.

“District courts have considerable discretion in managing discovery . . . and possess 

broad discretion to impose sanctions for discovery violations under Rule 37.” Parsi v. 

Daioleslam, 778 F.3d 116, 125 (D.C. Cir. 2015) (internal quotations omitted); see also Giles v. 

Transit Employees Fed. Credit Union, 794 F.3d 1, 14 (D.C. Cir. 2015) (“Under Rule 37, the 

district court has broad discretion to respond, or not to respond, to alleged abuses of the 

discovery process.” (internal quotations omitted)). “The central requirement of Rule 37 is that 
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‘any sanction must be just.’” Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996) 

(quoting Insurance Corp. v. Compagnie des Bauxites de Guinée, 456 U.S. 694, 707 (1982)).

ANALYSIS

The defendants request three sanctions as a consequence of the plaintiff failing to appear 

for her deposition: dismissal, contempt, and attorneys’ fees. Those three are addressed in order.

A. Dismissal

First, the defendants argue that the plaintiff’s non-compliance warrants dismissal. Defs.’ 

Mot. at 4–5. While Rule 37 suggests that dismissal of a case might be an appropriate sanction 

for failing to cooperate with discovery or with a court order, the D.C. Circuit has instructed that 

“‘dismissal is a sanction of last resort to be applied only after less dire alternatives have been 

explored without success’ or would obviously prove futile.” Bonds, 93 F.3d at 808 (quoting 

Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1075 (D.C. Cir. 1986)). That principle has been 

distilled into “three basic justifications that support the use of dismissal . . . as a sanction for 

misconduct.” Webb v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998); see also 

Washington Metro. Area Transit Comm’n v. Reliable Limousine Serv., LLC, 776 F.3d 1, 4 (D.C. 

Cir. 2015) (restating the Webb justifications). First, dismissal may be proper if the misbehavior 

“has severely hampered the other party’s ability to present his case—in other words, that the 

other party ‘has been so prejudiced by the misconduct that it would be unfair to require him to 

proceed further in the case.’” Id. (quoting Shea, 795 F.2d at 1074). Second, dismissal may be 

proper if the “misconduct has put ‘an intolerable burden on a district court by requiring the court 

to modify its own docket and operations in order to accommodate the delay.’” Id. (quoting Shea, 

795 F.2d at 1075). Third, dismissal may be proper if the misconduct is “disrespectful to the 

court” and must be deterred. Id.
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The plaintiff disputes her “failure to cooperate with discovery,” Pl.’s Opp’n at 2, and 

contends that the “Defendants have not demonstrated actual prejudice,” id. at 3. For both points, 

the thrust of the plaintiff’s argument is that because, at the time of the plaintiff’s response, the 

discovery deadline had not yet passed, the plaintiff still had time to cooperate and the defendants 

had not suffered any prejudice. Id. at 3–4. 

With discovery now having concluded, the plaintiff’s argument no longer holds and 

dismissal is an appropriate sanction in this case. The plaintiff failed to appear for a properly 

noticed deposition, which Rule 37(d)(3) suggests may alone warrant dismissal. Compounding 

matters, the plaintiff had been specifically ordered to attend her deposition if noticed. See Min. 

Order (Nov. 20, 2018). That too, under Rule 37(b)(2)(A)(v), may be an independent basis for 

dismissal. 

As for the Webb justifications, dismissal is apt here because forcing the defendants to 

defend against the instant lawsuit without the benefit of the plaintiff’s deposition would be 

prejudicial. Cf. United States Sec. & Exch. Comm’n v. China Infrastructure Inv. Corp., 189 F. 

Supp. 3d 118, 130 (D.D.C. 2016) (“The defendants’ failure to respond to the SEC’s requests for 

interrogatories and production of documents, served on July 13, 2015, and ultimately due on 

November 16, 2015, has hampered the SEC’s ability to present its case on the merits.”). As the 

defendants correctly point out, because the plaintiff has not been deposed, “Defendants cannot 

understand and evaluate Plaintiff’s claims, and cannot formulate their defenses.” Defs.’ Mot. at 

5. Turning to the second Webb justification, this case has been on the docket since 2016, and the 

Order resolving the motions to dismiss was issued 10 months ago. Order (Mar. 31, 2018). Since 

that time, the plaintiff’s absence has brought this case to a halt. Continuing to the third Webb

justification, the plaintiff specifically was ordered to appear for her deposition if sent a notice. 
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Min. Order (Nov. 20, 2018). Despite that Order, the plaintiff failed to appear. Violations of 

court orders must be deterred.

Finally, no lesser sanction is more appropriate in this case. The parties’ recent status 

report confirmed that “the Plaintiff has confirmed to Defendant Abbott directly that she will not 

appear for her deposition,” JSR at 2, demonstrating the futility of allowing this case to proceed. 

On this set of facts, dismissal, although extreme, is appropriate.

B. Contempt

Ostensibly, the defendants’ request that the plaintiff be held in contempt, which was 

made prior to the end of discovery, was aimed at forcing the plaintiff’s compliance with the 

notice of deposition. Now that this action is being dismissed, contempt is unnecessary.

C. Attorney’s Fees

Finally, if a party fails to attend her own deposition, “the court must require the party 

failing to act, the attorney advising that party, or both to pay the reasonable expenses, including 

attorney’s fees, caused by the failure, unless the failure was substantially justified or other 

circumstances make an award of expenses unjust.” FED. R. CIV. P. 37(d)(3). Although Rule 37 

uses “must,” the Rules do “not significantly narrow the discretion of the court.” FED. R. CIV. P.

37 advisory committee’s notes to 1970 amendments (describing effect of including mandatory 

language to a section of Rule 37 that is nearly identical to Rule 37(d)(3)); see also Jones v. 

Dufek, 830 F.3d 523, 529 (D.C. Cir. 2016) (quoting advisory committee notes as evidence that 

Rule 37’s mandatory language does not foreclose discretion).

The defendants argue that the plaintiff and/or her counsel should pay the defendants’ 

costs spent preparing for the plaintiff’s deposition because her failure to appear was unjustified. 

Defs.’ Mot at 1, 5. Yet, given that the plaintiff’s absence from this case, as explained in a sealed 
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declaration, is due to a significant personal trauma, see generally Kurzyna Decl., imposing 

attorneys’ fees as an additional sanction to dismissal would be excessive. See Protopapas v. 

EMCOR Gov’t Servs., Inc., 251 F. Supp. 3d 249, 257 (D.D.C. 2017) (“Though plaintiff’s counsel 

did delay significantly before producing any documents to the defendant, that delay was 

attributable to plaintiff’s counsel dealing with ‘the illness and subsequent death’ of a close family 

member. . . . While the Court does not minimize the inconvenience caused to both the Court and 

the defendant by counsel’s dilatory conduct, imposing attorneys’ fees in these circumstances is 

not warranted.”). Moreover, the defendants also appear to have neglected discovery 

responsibilities, failing to provide answers to interrogatories. See Pl.’s Opp’n at 4 n.2; JSR at 1. 

Finally, Defendant Abbott has been communicating directly with the plaintiff during her 

absence. See Defs.’ Mot., Ex. B; Defs.’ Extension Opp’n, Ex. A at 2; JSR at 2. Uncertainty as 

to whether those contacts contributed to the plaintiff’s unwillingness to participate weigh against 

defraying the defendants’ expenses preparing for the plaintiff’s deposition.

CONCLUSION

For the foregoing reasons, it is hereby

ORDERED that the Defendants’ Rule 37 Motion for Discovery Sanctions, ECF No. 34, 

is GRANTED IN PART and DENIED IN PART; and it is further

ORDERED that this case is dismissed; and it is further

ORDERED that Mariusz Karzyna’s Motion for Leave to Withdraw Appearance, ECF 

No. 33, and Brent Ahalt’s Motion to Withdraw Appearance, ECF No. 35, are DENIED as moot.

The Clerk of the Court shall close this case.

SO ORDERED.

Date: January 30, 2019
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This is a final and appealable order.

__________________

BERYL A. HOWELL

Chief Judge