United States District Court, N.D. Oklahoma
JOSEPH GOODLY, on behalf of himself and other persons similarly situated, Plaintiffs,
CHECK-6, INC.; YAREMA SOS; BRIAN BRURUD; DENNIS ROMANO; S. ERIC BENSON; LAURA OWEN; and JOHN DILLON, Defendants.
OPINION AND ORDER
F. JAYNE, UNITED STATES MAGISTRATE JUDGE
the Court are Defendants' Motions for Sanctions (ECF Nos.
180, 187), which request sanctions under Federal of Civil
Procedure Rule 37(d)(3) based on twelve opt-in
Plaintiffs' failures to appear for noticed
depositions. United States District Judge Gregory
Frizzell referred the Motions for Sanctions to the
undersigned. Also before the Court is Defendants'
Motion to Compel (ECF No. 174), which requests that the Court
compel production of written discovery and impose sanctions.
The Motion to Compel was automatically referred to the
undersigned pursuant to Northern District of Oklahoma Local
November 4, 2016, Judge Frizzell conditionally certified this
case as a Fair Labor Standards Act collective action pursuant
to 29 U.S.C. § 216(b). On August 28, 2017, Defendants
noticed depositions of the named Plaintiff and eighteen
opt-in Plaintiffs. On August 29, 2017, Plaintiffs moved for a
protective order requesting that discovery be conducted only
of the named Plaintiff or that the Court permit a
representative sampling of discovery. See ECF No.
119-1. During a hearing on September 28, 2017, the Court
denied Plaintiffs' motion for protective order and
authorized Defendants to conduct individualized depositions
and written discovery of all opt-in Plaintiffs. The Court
granted Defendants' request to take depositions in Tulsa,
Oklahoma, where the lawsuit is pending.
October 12, 2017, Defendants proposed new dates for all
depositions. Plaintiffs agreed to deposition dates for six
Plaintiffs. On October 25, 2017, the Court conducted an
expedited hearing regarding two upcoming depositions. The
Court granted Plaintiffs' requested relief regarding
those depositions and instructed Defendants' counsel to
accommodate Plaintiffs' schedules going
forward. By November 3, 2017, Plaintiffs had
proposed deposition dates for seven total Plaintiffs.
failing to receive alternate dates for other Plaintiffs and
threatening Plaintiffs' counsel that notices would
follow, Defendants sent deposition notices on November 10,
2017. Finally, on November 20, 2017, Plaintiffs sent a letter
providing dates in January for several remaining Plaintiffs
and discussing logistical problems with a few others. On
November 25, 2017, Defendants sent a letter refusing to move
the noticed depositions or conduct video deposition of
foreign Plaintiffs. Defendants stated the proposed dates were
too close to the discovery deadline, which was then January
18, 2018. Plaintiffs did not file motions to quash or for
protective orders, and Defendants conducted twelve no-show
early December, Defendants moved to compel written discovery
and for sanctions against five non-appearing Plaintiffs.
Plaintiffs moved for an expedited a status conference. Judge
Frizzell conducted a status conference on December 13, 2017,
and granted a sixty-day discovery extension, resulting in a
March 19, 2018 discovery deadline. Defendants moved for
sanctions against seven other non-appearing Plaintiffs. The
Court entered a minute order sua sponte permitting
Plaintiffs to file two response briefs out of time and
setting all three motions for hearing. The Court
conducted a hearing on January 23, 2018.
Motions for Sanctions
Rule of Civil Procedure 37(d)(1)(A) permits a court to order
sanctions where a party fails, after being served with proper
notice, to appear for his deposition. Rule 37(d)(2) provides
that failure to attend a deposition “is not excused on
the ground that the discovery sought was objectionable,
unless the party failing to act has a pending motion for
protective order.” Fed.R.Civ.P. 37(d)(2); see also
Batt v. Kimberly-Clark Corp., 438 F.Supp.2d 1315, 1318
(N.D. Okla. 2006) (party noticed for deposition on date he
could not attend “was required to take some action to
stay the deposition until the parties, with or without the
Court's assistance, could resolve the dispute”).
Rule 37(d)(3) permits all sanctions listed in Rule
37(b)(2)(A)(i)-(vii) and/or the payment of reasonable
expenses and attorneys' fees. Sanctions may be applied
against opt-in Plaintiffs in FLSA actions who fail to
participate in court-ordered discovery. See generally
Porter v. W. Side Rest., LLC, No. 13-1112-JAR-KGG, 2014
WL 5430249, at *2 (D. Kan. Oct. 24, 2014) (dismissing claims
of opt-in plaintiffs as sanction for failure to appear for
depositions); Gordon v. Kaleida Health, No.
08-CV-378S F, 2013 WL 2250431, at *4 (W.D.N.Y. May 21, 2013)
(dismissing claims against “non-responsive” FLSA
opt-in plaintiffs as sanction for failure to provide written
discovery). In this case, Defendants request dismissal with
prejudice, or, alternatively, reasonable attorneys' fees
and costs incurred in preparing for and attending depositions
and filing the Motions for Sanctions.
imposing the sanction of dismissal,
a court should ordinarily consider a number of factors,
including: (1) the degree of actual prejudice to the
[movant]; (2) the amount of interference with the judicial
process; . . . (3) the culpability of the litigant; (4)
whether the court warned the party in advance that dismissal
of the action would be a likely sanction for noncompliance;
and (5) the efficacy of lesser sanctions.
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.
1992) (internal citations and quotation marks omitted).
Although this list of factors does not establish a
“rigid test, ” a court should evaluate any other
relevant factors on the record. Id. Dismissal is
appropriate “[o]nly when the aggravating factors
outweigh the judicial system's strong predisposition to
resolve cases on their merits.” Id. Due to the
harshness of a dismissal sanction, the violation must be
predicated upon willfulness, bad faith, or some fault of the
party rather than inability to comply. Archibeque v.
Atchison, Topeka & Santa Fe Ry. Co., 70
F.3d 1172, 1174 (10th Cir. 1995).
is not warranted for three principal reasons. First, lesser
sanctions would cure any minimal prejudice suffered by
Defendants. Based on the extended deadlines, there remains
time to conduct the depositions within the discovery period.
Although Defendants desired to conduct the depositions thirty
days prior to the discovery deadline, this is not guaranteed
by the rules. At the hearing, Defendants argued they may
suffer prejudice if they learn of new affirmative defenses
during the depositions but are out of time to amend
pleadings. The deadline for motions to amend expired August
24, 2016. Judge Frizzell denied Defendants' two prior
motions to amend, see ECF Nos. 147, ...