Patel v. Wal-Mart Stores, Inc.

Filing 84

MEMORANDUM OPINION AND ORDER that 49 Motion to Dismiss Holly Morris With Prejudice is DENIED. Signed by Hon. Chief Judge Mark E. Fuller on 12/2/2009. (cb, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION N I L E S H H. PATEL, P l a in tif f , v. W A L -M A R T STORES, INC., D e f e n d a n t. ) ) ) ) ) ) ) )

C A S E NO. 2:08-cv-337-MEF (W O - Do Not Publish)

M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on the Motion to Dismiss Holly Morris With Prejudice (D o c. # 49) filed on October 20, 2009 by Defendant Wal-Mart Stores, Inc. ("Wal-Mart"). T h is is a case brought by several plaintiffs, including Holly Morris ("Morris") against their e m p lo ye r under the Fair Labor Standards Act. Plaintiffs contend that they were improperly c la ss if ie d and compensated as exempt administrative employees and improperly denied o v e rtim e pay for hours worked in excess of forty hours per week. Wal-Mart contends that M o rris' claims are due to be dismissed with prejudice due to her failure to prosecute this a c ti o n or participate in discovery. Morris' counsel argues that any dismissal should be w ith o u t prejudice. Morris joined this lawsuit as a party plaintiff on October 31, 2008. In June of 2009, W a l- M a r t served interrogatories on Morris' counsel addressed to Morris' claims. Morris' c o u n se l sought and received an extension of time for her response, but ultimately failed to re s p o n d to the interrogatories. Wal-Mart then attempted four times in September and O c to b e r to procure Morris' deposition. Morris failed to appear at any of the depositions for

w h ic h she received notices. At no point in this litigation, did counsel for Wal-Mart file a m o tio n seeking to compel Morris to respond to the interrogatories propounded to her or to a p p e a r for a deposition. Moreover, Wal-Mart did not pursue any other relief pursuant to F e d e ra l Rule of Civil Procedure 37. Instead, Wal-Mart filed the instant motion pursuant to F e d e ra l Rule of Civil Procedure 41(b). Morris' counsel has made ongoing and continuous efforts to contact Morris from June o f 2009 through November of 2009. Morris' counsel has written letters, made telephone ca lls, and used a private investigator to attempt to locate and communicate with Morris. It is not clear from the record before this Court whether any of these efforts were successful o r if Morris' counsel has any idea where she is currently located. It is only clear that she d o e s not respond to their attempts to communicate with her. The Court cannot say whether th is is because she does not know of these attempts or because she willfully refuses to p a rtic ip a te in this litigation. Federal Rule of Civil Procedure 41(b) provides as follows: [ i]f the plaintiff fails to prosecute or to comply with these rules o r a court order, a defendant may move to dismiss the action or a n y claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not u n d e r this rule -- except one for lack of jurisdiction, improper v e n u e , or failure to join a party under Rule 19 -- operates as an a d ju d ic a tio n on the merits. Fed. R. Civ. P. 41(b). Because of Wal-Mart's strategic decision not to seek any discovery o rde rs pursuant to the Federal Rules of Civil Procedure prior to filing this motion, the Court

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c a n n o t say that Morris has failed to comply with a court order. Wal-Mart has shown that M o rris has failed to comply with the Federal Rules of Civil Procedure regarding providing re sp o n s e s to interrogatories and appearing for a deposition. Nothing in the text of Rule 41(b) re q u ire s that such a dismissal be with prejudice. Under Rule 41(b), a case may be dismissed u p o n a determination of a "clear record of delay or willful contempt and a finding that lesser s a n c t io n s would not suffice." Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). W al-M art has failed to demonstrate a clear record of delay or willful contempt. Moreover, it has not shown that lesser sanctions would not suffice. Accordingly, the motion to dismiss is due to be DENIED. The Court notes that on the basis of the record before it, it would be w illin g to dismiss this case without prejudice. That, however, has not been requested. For the foregoing reasons, it is hereby ORDERED that the Motion to Dismiss Holly M o rr is With Prejudice (Doc. # 49) is DENIED. DONE this the 2nd day of December, 2009.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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