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Goodly v. Check-6, Inc.

United States District Court, N.D. Oklahoma

January 29, 2018

JOSEPH GOODLY, on behalf of himself and other persons similarly situated, Plaintiffs,



         Before 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.[1] United States District Judge Gregory Frizzell referred the Motions for Sanctions to the undersigned.[2] 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 Rule 37.2(a).

         I. Factual Background

         On 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.

         On 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.[3] By November 3, 2017, Plaintiffs had proposed deposition dates for seven total Plaintiffs.

         After 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 depositions.

         In 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.[4] The Court conducted a hearing on January 23, 2018.

         II. Motions for Sanctions

         Federal 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.

         A. Dismissal

         Before 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).

         Dismissal 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, ...

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