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Thompson v. Direct General Consumer Products, Inc.

United States District Court, M.D. Tennessee, Nashville Division

May 18, 2015

ELIZABETH THOMPSON and LYNN CARDINALE, on behalf of themselves and those similarly situated, Plaintiffs,


KEVIN H. SHARP, District Judge.

Pending before the Court in this collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. ยง 201, et seq., are Defendants' Motion to Dismiss (Docket No. 105) and Plaintiffs' Motion for Partial Summary Judgment (Docket No. 107). Those Motions have been fully briefed by the parties, the Court heard oral argument on the same on April 10, 2015, and the Court now considers them in turn.

I. Defendants' Motion to Dismiss

By way of this Motion, Defendants seek dismissal of 86 opt-in Plaintiffs. That Motion is based upon the following procedural history.

After this collective action had been conditionally certified, the Court, in accordance with a Joint Motion filed by the parties, set the opt-in period to begin on April 2, 2014, and close on June 2, 2014. At the end of this period, the class consisted of 146 opt-in plaintiffs, plus the 2 named Plaintiffs.

Subsequently, the parties entered into a stipulation setting forth the dates by which they would respond to one another's written discovery requests. The Court adopted the stipulation by Order dated August 13, 2014, making Plaintiffs' responses due by October 1, 2014, and Defendants' responses due by October 22, 2014. As those deadlines neared, Plaintiffs' counsel requested that the opt-in Plaintiffs be allowed to serve their responses on a rolling basis, starting on October 1, 2014, rather than requiring Plaintiffs to serve all 146 sets of responses by that deadline. Defendants agreed.

Despite the accommodation, however, only 28 of the 146 opt-in plaintiffs had served responses to the written discovery requests by October 31, 2014, prompting Defendants to file a Motion to Compel. That Motion was granted on December 18, 2014, when the Court ordered "[a]ll opt-in Plaintiffs who intend to participate in this lawsuit [to] serve responses to Defendants' discovery requests on or before January 15, 2015." (Docket No. 104 at 1).

As of January 15, 2015, 15 opt-in Plaintiffs had filed notices to withdraw their consents, leaving 131 opt-in Plaintiffs remaining in the case. Of these 131 opt-in Plaintiffs, only 41 had served answers to their discovery requests by the court-ordered deadline. It is the remaining 86 opt-in Plaintiffs that did not respond to the discovery request that Defendants now move to dismiss.

Defendants' Motion is based on Rules 37 and 41 of the Federal Rules of Civil Procedure. Rule 37 provides that if a party "fails to obey an order to provide or permit discovery, " a "court where the action is pending may issue further just orders, " including an order "dismissing the action or proceeding in whole or in part[.]" FED. R. CIV. P. 37(b)(2)(A). Rule 41 provides that "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." FED. R. CIV. P. 41(b).

In response to Defendants' Motion, Plaintiffs concede that dismissal is appropriate as to 85 of the 86 opt-in Plaintiffs. They object to dismissal of opt-in Plaintiff Margaret Brookhouser because she responded to the discovery request on January 25, 2015, and explain that her delay in responding was due to "the fact she is homeless and had a difficult time receiving and then completing the answers to the discovery requests." (Docket No. 111 at 2 n.1). As for the others, Plaintiffs argue that the lesser sanction of dismissal without prejudice is appropriate and in keeping with the remedial purposes of the FLSA. They also argue that dismissal without prejudice is appropriate because the Order warning the opt-in Plaintiffs to respond referred to "this lawsuit."

At the hearing on April 10, 2015, the Court stated that Ms. Brookhouser would not be dismissed because she responded, albeit ten days late. As for the others, the Court stated that it was inclined to dismiss those opt-in Plaintiffs with prejudice, but would consider the matter further. Having done so, the Court finds that dismissal with prejudice is, in fact, the appropriate sanction.

In deciding whether dismissal without prejudice is appropriate, the Court is guided by four factors: "(1) [w]hether the party's failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered." Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999). All of those factors the finding that dismissal with prejudice is the appropriate sanction under the facts of this case.

First, the non-responsive opt-in Plaintiffs acted wilfully and with fault because they did not comply with the parties' stipulated deadline for the filing of discovery responses, nor comply with the Court's Order that they serve responses by January 15, 2015, thus "showing a lack of interest in the action[.]" Williams v. Select Specialty Hosp., 2010 WL 83103, at *3 (M.D. Tenn. Jan. 7, 2010). Second, Defendants will be prejudiced by any lesser sanction because they "face the prospect of defending a future action based on allegations which it has attempted to defend against in this action." Id. Third, the non-responsive opt-in Plaintiffs were ordered to provide responses by a date certain, and while the Order referred to "this lawsuit" and did not specifically state that dismissal could follow, litigants and counsel are expected to respect the litigation process and "should already be aware of the requirement to follow court orders or seek to have the orders changed." Manning v. Diversified Collection Serv. Inc., 1010WL 1438735, at *2 n.2 (S.D. Ohio April 9, 2010). Fourth, the lesser sanction of dismissal without prejudice is not appropriate because that approach would allow the non-responsive Plaintiffs to simply "re-file in district court and start the process all over again, just as though nothing had ever gone wrong." Bay Corrugated Container, Inc. v. Gould, Inc., 2015 WL 1529145, at *5 (6th Cir. April 7, 2015).

Contrary to Plaintiffs' assertion, dismissal without prejudice does not undermine the remedial purposes of the FLSA. Rather, it underscores the responsibility of litigants to comply with the Federal Rules of Civil Procedure and Orders issued by the Court. Accordingly, Defendants' Motion to Dismiss will be granted with respect to the opt-in Plaintiffs who did not fulfill their discovery obligations and ...

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