Dinkel v. Medstar Health Inc.Dinkel v. Medstar Health Inc.
Joseph Erwin Schuler, Jacqueline C. Tully, Paul Decamp, Jackson Lewis LLP, Reston, VA, for Defendants.
MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, United States District Judge
Plaintiffs bring this action against MedStar Health, Inc. and Washington Hospital Center (collectively “Defendants“), claiming that Defendants violated the Fair Labor Standards Act (“FLSA“),
I. BACKGROUND
On July 29, 2012, the Court granted in part and denied in part Plaintiffs’ motion for conditional certification, conditionally certifying this case as a collective action with respect to two of Plaintiffs’ claims. See Dinkel v. MedStar Health, Inc., 880 F.Supp.2d 49 (D.D.C.2012).
By its January 9, 2013 [56] Order, the Court permitted Defendants to propound a limited number of interrogatories on each member of the Uniform Maintenance Class, which then totaled 455 members, concluding that such interrogatories were permissible to the extent “narrowly targeted to elicit information relating to the threshold question as to whether class members are similarly situated.” Order, ECF No. [56] at 4. Defendants argued, and the Court agreed, that such individualized “discovery [was] essential for determining whether members of this class are or are not similarly situated for purposes of class certification” and thus would be necessary given Defendants’ stated intent to move to decertify the conditionally certified Uniform Maintenance Class at a later, appropriate time. Id. at 2. Given these concerns, the Court rejected Plaintiffs’ alternative proposal that Defendants be limited “to serving narrowly-tailored interrogatories on no more than 35 randomly-selected class members.” Id.
Subsequently, after providing Plaintiffs an opportunity to file specific objections to the wording and substance of Defendants’ proposed interrogatories, in its February 8, 2013 [64] Order, the Court permitted Defendants to propound all five of their proposed interrogatories on each member of the Uniform Maintenance Class. The Court again rejected “Plaintiffs’ conclusory and wholly unsubstantiated forecasting that ‘evidence from 455 Plaintiffs on uniform maintenance is likely to be redundant, and, at a minimum, differ only as a matter of degree, rather than kind.’ ” Order, ECF No. [64] at 6. The Court also discounted Plaintiffs’ argument “that Defendants must necessarily have some of this information in their personnel files” finding persuasive Defendants’ arguments that these interrogatories “will permit Defendants to compare the opt-in class members’ response[s] to [their] own records and determine any discrepancies.” Id. at 8-9.
On July 9, 2013, Defendants filed a [68] Motion to Compel Discovery Responses, seeking an order compelling (1) 303 opt-in Plaintiffs to provide full and complete answers to Defendants’ interrogatories to Uniform Maintenance Class Members; and (2) 20 opt-in Plaintiffs to provide full and complete responses and documents to Defendants’ requests for production of documents to Meal Break Class Members. Defendants represented that on February 22, 2013, in accord with the Court‘s [64] Order, they had served the Court-approved interrogatories on the 455 Uniform Maintenance Class Members and requests for production of documents on the 20 Meal Break Class Members. See Defs.’ Mot. to Compel Discovery Responses, ECF No. [68] at 1. Generally, discovery responses are due 30 days after service. However, Plaintiffs’ counsel requested, and counsel for Defendants stipulated to, an extended deadline of April 26, 2013, for written discovery responses. See Defs.’ Mem. in Supp. of Mot. to Compel Discovery Responses, ECF No. [68-1] at 1. In their motion to compel, Defendants stated that while they had received some of the required responses, the vast majority remained outstanding. Defs.’ Mot. to Compel Discovery Responses, ECF No. [68] at 2. After providing Plaintiffs an opportunity to respond and provide additional responses, the Court granted Defendants’ motion insofar as the Court required “(1) the 292 opt-in Uniform Maintenance plaintiffs to provide full and complete answers to Defendants’ interrogatories to Uniform Maintenance Class Members, which were previously approved by this Court; and (2) the 15 opt-in Meal Break plaintiffs to provide full and complete answers and documents responsive to Defendants’ requests for production of documents to Meal Break Class Members.” See Minute Order (July
On February 18, 2014, Defendants filed the present [97] Motion to Dismiss with Prejudice Plaintiffs that Failed to Fulfill Their Discovery Obligations. In their motion and accompanying memorandum, Defendants state that they have still not received discovery responses from a significant number of opt-in Plaintiffs. Defs.’ Mot. at 1-2; Defs.’ Mem. at 4. Specifically, Defendants seek the dismissal of 171 members of the Uniform Maintenance Class who failed to respond to the individual interrogatories as required by the Court‘s Order. Defs.’ Reply at 3. Defendants also seek the dismissal of an unspecified number of Meal Break Class members who have failed to respond to Defendants’ requests for the production of documents, as required by the Court‘s Order. Defs.’ Mot. at 2. In addition, Defendants seek the dismissal of opt-in Plaintiffs in both the Uniform Maintenance Class and the Meal Break Class who failed to appear for scheduled depositions. Id. at 1. On May 21, 2013, Defendants noticed 35 opt-in Plaintiffs for deposition. Numerous opt-in Plaintiffs failed to attend their deposition while others cancelled shortly before the deposition. Defs.’ Mem. at 4. Plaintiffs now seek the dismissal of 12 opt-in Plaintiffs, constituting members of both classes, who failed to appear for their depositions.2 Defs.’ Mot. at 1.
II. LEGAL STANDARD
“The Federal Rules of Civil Procedure allow a court to impose sanctions for a party‘s failure to cooperate during the course of discovery.” Davis v. Dist. of Columbia Child & Family Svcs. Agency, 304 F.R.D. 51, 59 (D.D.C.2014).
“The central requirement of
“While a
III. DISCUSSION
The Court reads Defendants’ motion to seek the dismissal of four types of opt-in Plaintiffs: (1) Uniform Maintenance Class Members who failed to respond to Defendants’ interrogatories (“Non-Responsive Uniform Maintenance Class Members“), (2) Uniform Maintenance Class Members who failed to appear for their depositions (“No-Show Uniform Maintenance Class Members“), (3) Meal Break Class Members who failed to respond to Defendants’ document requests (“Non-Responsive Meal Break Class Members“), and (4) Meal Break Class Members who failed to appear for their depositions (“No-Show Meal Break Class Members“). The Court addresses each of these groups of opt-in Plaintiffs below. The Court then addresses Defendants’ request for attorneys’ fees pursuant to
A. Non-Responsive Uniform Maintenance Class Members
Defendants seek to dismiss 171 opt-in members of the Uniform Maintenance Class who failed to provide the individual written discovery responses required by this Court‘s prior Orders. Defs.’ Reply at 3 (“To date, 171 Plaintiffs still have not responded to the written discovery requests.“). Plaintiffs and class counsel concede that these opt-in Plaintiffs failed to satisfy their discovery obligations, but nevertheless argue that the sanctions sought by Defendants are inappropriate. See Pls.’ Opp‘n at 6 (“Plaintiffs’ failure to supply written discovery responses from Uniform Maintenance Class Members does not justify imposition of the requested sanctions.“). First, Plaintiffs argue that dismissal would be improper because class counsel and the responsive members of the Uniform Maintenance Class have been diligent in meeting their discovery obligations. Id. at 3-4. Accordingly, they argue that sanctions are unjustified where Defendants have not shown culpability or fault on the part of Plaintiffs and class counsel in complying with discovery obligations. Id. at 4. Yet the diligence and fault of class counsel and the opt-in Plaintiffs who have responded to their discovery obligations is beside the point in addressing Defendants’ present motion. Rather, the issue is the diligence and willfulness of the opt-in Plaintiffs who have not responded to Defendants’ requests for written discovery and the Court‘s Orders requiring them to comply with these requests. There is no dispute that these opt-in Plaintiffs have failed to provide the required discovery. Moreover, as discussed, the opt-in Plaintiffs’ failure to respond to Defendants’ written discovery requests, despite repeated opportunities to do so, provides evidence of their willfulness. Arias, 677 F.Supp.2d at 332; Handy, 2006 WL 3791387, at *8.
Failing in these arguments, Plaintiffs argue that dismissal with prejudice is a drastic sanction that is not justified here, and they therefore propose a series of lesser sanctions. Pls.’ Opp‘n at 7-8. This Court is obligated to “consider whether lesser sanctions would be more appropriate for the particular violation.” Bonds, 93 F.3d at 808. Plaintiffs propose the following options: (1) an Order barring the non-responsive class members from introducing individual proof of their claims at summary judgment, trial, or both; (2) an Order barring the nonresponsive class members from introducing individual proof of their damages at trial and, instead, requiring them to rely on inferences flowing from the evidence presented by other class members for proof of damages, (3) an Order permitting Defendants to use facts contained in the written discovery responses provided by time-barred class members, (4) an Order barring Plaintiffs from seeking damages discovery relating to the non-responsive class members, or (5) an Order dismissing the non-responsive class members claims without prejudice. Pls.’ Opp‘n at 7-8. Yet these lesser sanctions proposed by Plaintiffs are not proportional to the offense here, as they fail to mitigate the prejudice suffered by Defendants from the failure to provide discovery responses for each opt-in Plaintiff. As discussed, the failure to provide these discovery responses severely hinders Defendants ability to argue that the opt-in Plaintiffs, including those who failed to comply with their discovery obligations, are not similarly situated to the named Plaintiffs. By keeping these Plaintiffs in the litigation (or allowing them to return to the litigation without prejudice) while at the same time providing none of the additional information sought by Defendants, Plaintiffs’ proposed lesser sanctions are an insufficient remedy.
Nevertheless, although the Court concludes that the lesser sanctions proposed by Plaintiffs are inadequate, it is not prepared at this juncture to impose the severe sanction of dismissal with prejudice proposed by Defendants. Rather, the Court will adopt a lesser sanction proposed by Defendants in
Such a sanction is in keeping with D.C. Circuit precedent. In Arias, the D.C. Circuit “reject[ed] [a] challenge brought by the 163 plaintiffs who were dismissed for failure to provide complete responses to the court-ordered questionnaires.” Arias, 752 F.3d at 1015. “After plaintiffs’ repeated failures to adequately complete the responses—and three deadline extensions—the district court ultimately exercised its
So too here, the Court has provided opt-in Plaintiffs several opportunities in which to satisfy their discovery obligations. Plaintiffs were initially expected to comply with their written discovery obligations by April 26, 2013. Defs.’ Mem. at 2. On July 24, 2013, after Defendants filed a motion to compel the missing discovery responses, the Court granted the opt-in Plaintiffs an additional twenty-five days in which to submit their responses, warning them that failure to respond could result in dismissal of their claims. Order, ECF No. [76]. Now, almost a year later, a substantial number of discovery responses remain outstanding. Yet, while many opt-in Plaintiffs have certainly been delinquent in their discovery obligations, the Court is not yet ready to conclude that “further extensions [would be] obviously futile.” Arias, 752 F.3d at 1016. As Defendants concede, previous extensions have resulted in Plaintiffs providing additional missing discovery responses. Defs.’ Mem. at 3. In addition, the Court has only provided one previous extension of the deadline, by granting Defendants’ motion to compel. By contrast, in Arias, the district court provided plaintiffs three extensions, although the D.C. Circuit concluded that by granting such repeated extensions the court was “if anything, too patient.” Arias, 752 F.3d at 1016. Here, in attempting to strike the balance between being too strict and being too patient, as it must under binding precedent, the Court will provide opt-in Plaintiffs one final extension of thirty days in which to comply with the discovery requests and show cause why their claims should not be dismissed.
While the course set out in this Order is not precisely the one proposed by Defendants, the Court notes that Defendants are hardly prejudiced by this brief extension. No motion for decertification is due to be filed in the near future, as the parties are still in the process of briefing Defendants’ motion for summary judgment as to the Uniform Maintenance Class, which will not be completed until August 8, 2014, at the earliest. See Scheduling and Procedures Order, ECF No. [99].
B. No-Show Uniform Maintenance Class Members
Defendants next seek to dismiss the claims of 12 opt-in Plaintiffs in the Uniform
As with the non-responsive opt-in Plaintiffs, the lesser sanctions proposed by Plaintiffs fail to mitigate this prejudice because they do not provide Defendants the information denied by Plaintiffs’ failure to appear for their deposition. Yet, as with the non-responsive members of the Uniform Maintenance Class, the Court is unwilling at this time to impose the sanction of dismissal with prejudice sought by Defendants. Indeed, unlike the non-responsive Plaintiffs, the noshow Plaintiffs have not received a prior Court order warning them that their failure to comply with their discovery obligations could result in dismissal of their claims. Accordingly, because the Court is not convinced that further efforts to compel deposition of these opt-in Plaintiffs would be “obviously futile“, Arias, 752 F.3d at 1016, the Court will provide these Plaintiffs an additional opportunity to comply with their discovery obligations and explain their previous failure to comply. Accompanying this Memorandum Opinion is an Order directed to those opt-in Plaintiffs who have failed to appear for depositions as scheduled. The Order instructs these opt-in Plaintiffs, within thirty days of the issuance of the Order, to (a) explain their previous failure to appear for depositions, and (b) indicate availability and willingness for a future scheduled deposition, or have their claims dismissed with prejudice from this litigation. Plaintiffs’ counsel shall mail a copy of the Order to each no-show Uniform
C. Meal Break Class Members
Defendants also seek sanctions for the failure of several opt-in Plaintiffs in the Meal Break Class to respond to Defendants’ requests for production of documents. See Defs.’ Mem. at 2 (explaining that members of the Meal Break Class failed to satisfy their discovery obligation and requesting the Court “dismiss with prejudice the claims of all opt-in Plaintiffs that have not fulfilled their discovery obligations.“). Defendants do not specify exactly which opt-in Plaintiffs it seeks to dismiss from each class, but the Court notes that Defendants’ list of 171 Plaintiffs proposed for dismissal for failure to provide written discovery includes 171 members of the Uniform Maintenance Class. See Defs.’ Mot, Ex. 1 (List of Non-Responsive Plaintiffs). This list also includes at least three individuals who are members of both classes: Marlene Barber, Rajini Raj, and Barbara Townsend. Id. Through their motion, the Court understands Defendants to be seeking the dismissal of these Plaintiffs from the Meal Break Class, in addition to dismissal from the Uniform Maintenance Class.
Plaintiffs offer no rejoinder to Defendants’ argument that the non-responsive Meal Break Class Members should be dismissed with prejudice for failure to comply with their discovery obligations. Indeed, Plaintiff‘s Opposition fails to even mention the Meal Break Class, arguing only that dismissal is an inappropriate sanction for the discovery failures of members of the Uniform Maintenance Class. Accordingly, the Court treats the portion of Defendants’ Motion to Dismiss seeking dismissal of the non-responsive Meal Break Class members as conceded. See Hopkins v. Women‘s Div., Gen. Bd. of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C.2002) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997)) (“It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.“).
Based on the Court‘s review, the Meal Break Class Members who failed to appear for their depositions constitute a subset of the Meal Break Class Members who failed to satisfy their written discovery obligations. See Defs.’ Mem. at 5-6 (identifying Rajini Raj and Barbara Townsend as individuals who failed to appear for depositions). Since Plaintiffs have conceded Defendants’ argument that the latter set of opt-in Plaintiffs should be dismissed, any argument that the former should also be dismissed is moot. However, to the extent that there are Meal Break Class Members who failed to appear for their depositions but did satisfy their written discovery obligations, Defendants’ motion to dismiss is also granted with respect to these Plaintiffs. Again, Plaintiffs’ Opposition fails to provide any counter to Defendants’ arguments that members of the Meal Break Class—including those members who failed to appear for their depositions—should be dismissed with prejudice. Accordingly, this portion of Defendants’ motion to dismiss is granted as conceded. See Hopkins, 238 F.Supp.2d at 178.
D. Attorney‘s Fees
In addition to the sanctions discussed above, Defendants also seek to recover the attorney‘s fees incurred as a result of the delinquent opt-in Plaintiffs’ failure to fulfill their discovery obligations. Defs.’ Mem. at 16. Pursuant to
Although Defendants seek attorney‘s fees pursuant to these provisions, they fail to specify from whom they seek remuneration. Instead, they point to the use of the term “must” in the relevant provision and argue that they are entitled to recover fees. Defs.’ Mem. at 16. However, at other points in their briefing, Defendants concede that the discovery failures at issue are not due to the misconduct of Plaintiffs’ counsel. Defs.’ Reply at 10. Therefore, due to Plaintiffs’ counsel‘s blamelessness in these failures, the Court concludes in an exercise of its discretion that “circumstances make an award of expenses unjust” against the attorneys advising the delinquent parties. See Gordon v. Kaleida Health, No. 08-cv-378S (F), 2013 WL 2250431, at *7 (W.D.N.Y. May 21, 2013) (“as the record supports that the failure to provide discovery in compliance with the court‘s July 19, 2012 D & O cannot fairly be attributed to any lack of diligence or other fault by Plaintiff‘s counsel, the court finds that such expenses, awardable to Defendants, are solely attributable to the unresponsive opt-in Plaintiffs, and not Plaintiffs’ counsel.“).
Here, the parties failing to act, and thus responsible for the discovery failures, are the delinquent opt-in Plaintiffs. Yet while other courts have concluded that attorney‘s fees may be assessed against opt-in Plaintiffs in an FLSA collective action, see, e.g., Gordon, 2013 WL 2250431, at *7, the Court deems such additional sanctions inappropriate here. As an initial matter, the Court is denying Defendants’ motion in part, having concluded that dismissal of the delinquent Uniform Maintenance Class members is not an appropriate sanction at this juncture. While this is not dispositive on the issue of attorney‘s fees, as such expenses may be awarded “[i]nstead of or in addition” to other sanctions provided for by
Nevertheless, the Court is cognizant of the fact that Defendants have expended substantial resources in pursuing unsuccessful discovery from the delinquent opt-in Plaintiffs. Therefore, the Court would be willing to consider, at a later date, a renewed request for the subject attorney‘s fees. Such a request should explain why awarding attorney‘s fees would avoid the problems discussed above, namely the practicality and fairness issues involved in obtaining fees from opt-in Plaintiffs in an FLSA collective action. The Court would also consider a request to reduce any eventual recovery by Plaintiffs, should they prevail in this action, by the amount of fees sought by Defendants for the discovery failures at issue.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendants’ [97] Motion to Dismiss With Prejudice Plaintiffs That Failed to Fulfill Their Discovery Obligations. Specifically, the Court DENIES WITHOUT PREJUDICE Defendants’ request to dismiss with prejudice members of the Uniform Maintenance Class who have failed to respond to Defendants’ interrogatories or appear as scheduled for depositions. These Plaintiffs will be provided one final opportunity to show cause why their claims should not be dismissed. The Court GRANTS Defendants’ request to dismiss members of the Meal Break Class who failed to satisfy their discovery obligations, as Plaintiffs have conceded this portion of the motion. The Court
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE