Opinion
20-CV-3326 PJM
02-16-2022
Henson v. Horizon Health Services Inc.,
Defendant Horizon Health Services, Inc. and Counsel of Record, Judge Peter J. Messitte
PETER J. MESSITTE UNITED STATES DISTRICT JUDGE
Plaintiff Belinda Henson claims that she applied for employment with Defendant Horizon Health Services, Inc. ("Horizon"). According to Henson, she was not hired because of her age. She brought this action against Horizon, alleging discrimination on the basis of age in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§621, et seq.
Before the Court is a Motion to Withdraw as Counsel and for Reconsideration of the Court's Order Appointing Pro Bono Counsel filed by defense counsel. ECF No. 26. Plaintiff has responded, and defense counsel has replied. No. hearing is required. See Local Rule 105.6.
Plaintiff Henson filed this suit pro se on November 24, 2020, against Defendant Horizon Health Services, Inc. ("Horizon"). Compl., ECF No. 1. On March 3, 2021, the Court sent a letter to Henson explaining that she had served someone who is not an agent of the defendant in the case. ECF No. 6. Henson served Horizon on March 18, 2021. ECF No. 10.
On March 31, 2021, Horizon's Program Director, Mr. Charles, filed a letter with the Court, stating that he checked Horizon's records and "cannot find this individual applying or sending in a resume to our company or any interviews being conducted with her." ECF No. 11. He explained that Horizon's Administrator was out of town but would return in early May. Id. The Court ordered Horizon to file a formal written response. ECF No. 12.
On May 5, 2021, Cynthia Oshodi, Horizon's Administrator, filed a letter with the Court, which the Court construed as Horizon's Answer. ECF No. 13. Horizon denied the allegations in the Complaint, stating that it never engaged Henson in employment discussions. Id. Horizon further explained that provides services to the elderly and employs individuals with varying ages. Id
Following the filing of Horizon's Answer, Henson requested the issuance of a subpoena and later requested the Court appoint her pro bono counsel. ECF Nos. 14, 15. Given the nature of the case, the Court appointed pro bono counsel to both parties. ECF Nos. 17, 19. Kenneth Maxwell Bernas, Esq. of FordHarrison LLP, was appointed counsel for Horizon. ECF No. 17. Bernas, however, advised the Court that he was unable to reach Oshodi.
On November 23, 2021, the Court sent a letter to Oshodi, instructing her to contact Bernas immediately. Exhibit 1. On December 17, 2021, Bernas informed the Court that he had Horizon and Oshodi had not corresponded him regarding the case. See ECF No. 24-1. On December 22, 2021, the Court sent a letter to Oshodi explaining that Bernas was appointed to represent Horizon at no cost and noting that Bernas had been unable to reach her. Exhibit 2 (ECF No. 20). The Court urged Oshodi to contact Bernas. Id.
On December 27, 2021, Henson moved for leave to file an amended complaint, ECF No. 21, which the Court granted, ECF No. 22. However, on January 25, 2022, Bernas informed the Court that his efforts to correspond with Oshodi had failed. See ECF No. 24-1. The Court sent yet another letter to Oshodi, warning her that Henson may file a motion for default-and eventually a motion for default judgment-if Horizon does not respond to the suit. Exhibit 3 (ECF No. 24).
Despite the Court's multiple letters and Bernas's numerous attempts to contact Oshodi, Bernas has been unable to reach Oshodi (or any agent of Horizon). He now moves to withdraw as counsel. ECF No. 26. Henson does not object to his withdrawal. ECF No. 27.
Although Henson does not object to the Motion to Withdraw, it filed a response indicating concern that Bernas filed an Answer to the Amended Complaint without authorization from Horizon. ECF No. 27. On reply, Bernas cites Maryland Rule of Professional Conduct 19-301.2, which provides: "An attorney may take such action on behalf of the client as is impliedly authorized to carry out the representation." Id. He also explains that he sought advice from the Maryland State Bar Association Ethics and Opinions Hotline regarding the filing of the Answer. Id. The Court agrees that Bernas was impliedly authorized to file the Answer, especially given that Rule 1.16(d) requires a lawyer to protect his clients interests when terminating representation.
Given Bernas's repeated attempts to contact Oshodi by telephone and by certified mail, the Court will grant his motion to withdraw. Bernas attempted to contact Oshodi by telephone on September 15, 2021, September 22, 2021, and September 30, 2021. Mem. in Supp. of Mot. to Withdraw, ECF No. 26-1, at 1. He also sent written correspondence by certified mail. Id. at 2. He also informed Oshodi of his intent to withdraw, informing her of Horizon's need to have new counsel enter an appearance on its behalf or be subject to default judgment, pursuant to Local Rule 101(b).
Furthermore, withdrawal of counsel will not result in a material adverse effect at this stage in the litigation since a scheduling order has not been issued in this case. See Abbott v. Gordon, Civ. No. 09-0372 DKC, 2010 WL 4183334, at *2 (D. Md. Oct. 25, 2010).
The Motion to Withdraw as Counsel and for Reconsideration of the Court's Order Appointing Pro Bono Counsel is GRANTED.
The Clerk of the Court is DIRECTED to strike the appearance of K. Maxwell Bernas as counsel for Defendant Horizon Health Services, Inc.
Defendant Horizon Health Services, Inc. is DIRECTED to retain new counsel pursuant to Local Rule 1.1(a), which provides that "all parties other than individuals must be represented by counsel."
Despite the informal nature of this ruling, it shall constitute an order of the Court, and the Clerk is directed to docket it accordingly.