Todd v. Daewon America, Inc.

Filing 117

OPINION. Signed by Honorable Judge Myron H. Thompson on 4/18/2014. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

KELVIN TODD,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
DAEWON AMERICA, INC.,
Defendant.

CIVIL ACTION NO.
3:11cv1077-MHT
(WO)

OPINION
Plaintiff Kelvin Todd brings this lawsuit under the
Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, on
behalf of himself and others similarly situated, claiming
that his former employer, defendant Daewon America, Inc.,
violated

the

FLSA’s

overtime-pay

provisions.

Specifically, Todd alleges that the company had a policy
of paying for only 15 minutes of pre-shift work and that
as a result of this policy the company shorted his
overtime pay.

Todd also alleges that Daewon America

deducted 30 minutes of pay for a lunch break despite
regularly

requiring

him

to

work

through

lunch.

Jurisdiction is proper

pursuant to 29 U.S.C. § 216(b)

(FLSA) and 28 U.S.C. § 1331 (federal question).
Relying on Rules 37(b)(2) and 41(b) of the Federal
Rules of Civil Procedure, Daewon America has filed a
motion to dismiss the following 14 ‘opt-in plaintiffs’ in
this case: Matthew Bolt, James Brooks, Willie Davis,
Jeffery Heard, Charlie Herron, Kathleen Hursh, Euseiok
Jeong,

Daniel

Kim,

Ji

Kun

Kim,

Edwin

Reece,

David

Sargent, Icjock Taylor, Barbara Wise, and James Yielding.
For the reasons that follow, the company’s dismissal
motion will be granted as to these 14 opt-in plaintiffs.1

I.

Factual Background

Todd worked for Daewon America from September 2,
2009, until December 3, 2011.

He worked in several

1. Daewon America’s motion seeks dismissal of four
additional opt-in plaintiffs: Christopher Maisel, Byron
Brundage, Donald Clayton, and Christopher Parker.
However, they are not at issue for this opinion. Maisel
has already been dismissed, and whether the motion should
be granted as to the other three opt-in plaintiffs will
be addressed later.
2

different

departments

at

its

manufacturing

plant

in

Opelika, Alabama, including shot peening, assembly, and
paint.

His last rate of pay with the company was $ 13.40

an hour, with an overtime rate of $ 20.10 an hour.
Todd alleges that, although Daewon America paid him
some overtime, it did not pay him for all the overtime he
worked.

The FLSA requires that any employee who works

over 40 hours a week receive one-and-a-half times his
regular pay for all excess hours.

29 U.S.C. § 207.

Todd contends that he was underpaid as a result of
Daewon

America’s

rounding

practices.

The

company’s

policy was to pay for pre-shift overtime work only if the
employee worked an excess of 15 minutes before the start
of his shift. Todd regularly began work for the company
before the start of his shift, but was not paid for that
time because it did not exceed 15 minutes; if he worked
more than 15 minutes pre-shift, the company paid him for
the 15 minutes but no more.

In July 2011, the company

changed its policy so that it would not pay for any pre-

3

shift time unless the employee worked an excess of 30
minutes

pre-shift.

According

to

Todd,

this

change

resulted in further under-compensation in violation of
FLSA.

Additionally, Todd says he was routinely required

to work through his lunch break, but the company still
deducted 30 minutes pay for his lunch.

II. Procedural Background
Todd filed this lawsuit and subsequently moved for
conditional class certification so as to notify potential
class members of their right to opt into his lawsuit
under the FLSA’s collective-action provision, 29 U.S.C.
§ 216(b).

The court conditionally certified a class

“consisting of those nonexempt, hourly wage employees who
worked

at

defendant

Daewon

America

America,

Inc.’s

manufacturing plant in Opelika, Alabama for the three
years preceding initiation of this suit to the present.”
Todd v. Daewon Am., Inc., 2013 WL 557859 *6 (M.D. Ala.
2013), as amended by Todd v. Daewon Am., Inc., 2013 WL

4

1163431 *2 (M.D. Ala. 2013).

The court further approved

a notice procedure to persons who were alleged members of
the class. Todd v. Daewon Am., Inc., 2013 WL 1163431
(M.D. Ala. 2013), as amended by order of April 3, 2013
(Doc. No. 36).

Forty or so persons opted into this case.

The United States Magistrate Judge issued an order
limiting

Daewon

America’s

discovery

to

eleven

interrogatories and one request for production for each
opt-in plaintiff remaining in the case.

She also allowed

the company to take depositions of nine opt-in plaintiffs
for up to two hours.

The company served the remaining

opt-in plaintiffs with the same set of interrogatories
and requests for production. It also agreed with the
named plaintiff’s counsel on which nine opt-in plaintiffs
to depose.
Daewon
plaintiffs

America
for

now

failure

moves
to

to

dismiss

comply

with

14

the

opt-in
court’s

discovery order and for abandonment of their claims.
company

contends

that

this

5

case

should

be

The

dismissed

because

the

cooperate

14

in

opt-in

discovery

plaintiffs
and

comply

have
with

refused
the

to

court’s

discovery orders and because they are no longer otherwise
interested

in

pursuing

this

litigation.

The

named

plaintiff’s counsel have informed the court that they
cannot

present

assertions.
failed

to

evidence

to

dispute

the

company’s

As described below, each opt-in plaintiff
answer

the

company’s

interrogatories,

as

required by court order and despite repeated attempts by
the named plaintiff’s counsel to obtain their responses.
Some also failed to appear for scheduled depositions.
And some have simply shown by their conduct that they are
no longer interested in this case, that is, that they
have abandoned the litigation.

All were warned by the

named plaintiff’s counsel that failure to comply with
their discovery obligations could result in dismissal.
The following is a description of each opt-in plaintiff’s
failure to respond:

6

1. Matthew Bolt
C

Bolt did not appear for his scheduled deposition
on February 27, 2013.

C

He did not provide signed and notarized answers
to Daewon America’s interrogatories.

C

The named plaintiff’s counsel informed him on
March 3, 2014, that failure to participate in
discovery could result in dismissal from the
case.

2. James Brooks
C

Brooks did not cooperate with the named
plaintiff’s
counsel
in
answering
Daewon
America’s interrogatories.

C

The named plaintiff’s counsel informed him on
March 3, 2014, that failure to participate in
discovery could result in dismissal from the
case.

3. Willie Davis
C

Davis did not appear for
scheduled on December 5, 2013.

C

He did not cooperate with the named plaintiff’s
counsel
in
answering
Daewon
America’s
interrogatories.

C

He called the named plaintiff’s counsel to say
he wanted to be dismissed, but failed to provide
written authority for counsel to dismiss him
from the case as requested.

7

his

deposition

C

The named plaintiff’s counsel informed him on
March 3, 2014, that failure to participate in
discovery could result in dismissal from the
case.

4. Jeffery Heard
C

Heard
failed
to
interrogatories.

C

He appeared for his deposition on January 27,
2013, watched the deposition of another opt-in
plaintiff, and then left the location before the
start of his deposition.

C

The named plaintiff’s counsel attempted to
obtain written authorization to dismiss him from
the case, but he has not responded.

C

The named plaintiff’s counsel informed him on
March 3, 2014, that failure to participate in
discovery could result in dismissal from the
case.

answer

Daewon

America’s

5. Charlie Herron
C

The named plaintiff’s counsel attempted to
contact Herron to obtain his interrogatory
answers, but he hung up on counsel.

C

The named plaintiff’s counsel attempted to
obtain written authority to dismiss him from the
case, but he did not respond.

C

The named plaintiff’s counsel informed him on
March 3, 2014, that failure to participate in
discovery could result in dismissal from the
case.
8

6. Kathleen Hursh
C

Hursh’s family informed the named plaintiff’s
counsel that she moved to Las Vegas, left no
forwarding address, and is now estranged from
her family.

C

The named plaintiff’s counsel informed her on
March 3, 2014, that failure to participate in
discovery could result in her dismissal from the
case.

7. Euseiok Jeong
C

Jeong did not appear
December 5, 2013.

C

He
failed
to
interrogatories.

C

The named plaintiff’s counsel attempted to
receive written authority to dismiss him from
the case, but Jeong did not respond.

C

The named plaintiff’s counsel informed him on
March 3, 2014, that failure to participate in
discovery could result in his dismissal from the
case.

for

answer

his

deposition

Daewon

on

America’s

8. Daniel Kim
C

Kim failed to
interrogatories
counsel.

C

The named plaintiff’s counsel informed him on
March 3, 2014, that failure to participate in

return signed and notarized
to
the
named
plaintiff’s

9

discovery could result in his dismissal from the
case.
9. Ji Kun Kim
C

Kim did not cooperate with the named plaintiff’s
counsel
in
answering
Daewon
America’s
interrogatories.

C

The named plaintiff’s counsel informed him on
March 3, 2014, that failure to participate in
discovery could result in his dismissal from the
case.

10. Edwin Reese
C

Reese failed to return signed and notarized
interrogatories
to
the
named
plaintiff’s
counsel.

C

The named plaintiff’s counsel informed him on
March 3, 2014, that failure to participate in
discovery could result in his dismissal from the
case.

11. David Sargent
C

Sargent failed to return signed and notarized
interrogatories
to
the
named
plaintiff’s
counsel.

C

The named plaintiff’s counsel informed him on
March 3, 2014, that failure to participate in
discovery could result in his dismissal from the
case.

10

12. Icjock Taylor
C

Taylor failed
interrogatories
counsel.

C

He was excused from attending his January 27,
2014 deposition due to the birth of his child.

C

He failed to attend the rescheduled date of
February 27, 2014.

C

The named plaintiff’s counsel informed him on
March 3, 2014, that failure to participate in
discovery could result in his dismissal from the
case.

to return Daewon America’s
to
the
named
plaintiff’s

13. Barbara Wise
C

Wise failed to cooperate with the named
plaintiff’s
counsel
in
answering
Daewon
America’s interrogatories.

C

She failed to
interrogatories
counsel.

C

The named plaintiff’s counsel informed her on
March 3, 2014, that failure to participate in
discovery could result in her dismissal from the
case.

return signed and notarized
to
the
named
plaintiff’s

14. James Yielding
C

Yielding failed to appear for his deposition on
December 5, 2013.

11

C

He cooperated with the named plaintiff’s counsel
on
only
some
of
Daewon
America’s
interrogatories.

C

The named plaintiff’s counsel informed him on
March 3, 2014, that failure to participate in
discovery could result in his dismissal from the
case.

III.

Legal Standard

If a party fails to obey an order to permit or
provide discovery, then under Fed. R. Civ. P. 37(b)(2)
the court may issue further orders to remedy the failure
or may impose sanctions, including dismissing the action
or proceeding in its entirety or in part.

A plaintiff’s

deliberate refusal to comply with a court’s discovery
order is a sufficient basis for dismissal.2 See Phipps v.

2.

Rule 37(b)(2) provides:
“(b) Failure to Comply with a Court
Order.
....
(2) Sanctions Sought in the District
Where the Action Is Pending.
(A) For Not Obeying a Discovery Order.
(continued...)

12

(...continued)

If a party or a party's officer,
director, or managing agent--or a
witness designated under Rule 30(b)(6)
or 31(a)(4)--fails to obey an order to
provide or permit discovery, including
an order under Rule 26(f), 35, or 37(a),
the court where the action is pending
may issue further just orders. They may
include the following:
(i) directing that the matters embraced
in the order or other designated facts
be taken as established for purposes of
the action, as the prevailing party
claims;
(ii) prohibiting the disobedient party
from supporting or opposing designated
claims or defenses, or from introducing
designated matters in evidence;
(iii) striking pleadings in whole or in
part;
(iv) staying further proceedings until
the order is obeyed;
(v) dismissing the action or proceeding
in whole or in part;
(vi) rendering a default judgment
against the disobedient party; or
(vii) treating as contempt of court the
failure to obey any order except an
(continued...)

13

Blakeney, 8 F.3d 788, 790-791 (11th Cir. 1993).

However,

before a court may order dismissal as a sanction for a
discovery violation, it should consider the efficacy of
other less drastic sanctions. In re Sunshine Jr. Stores,
Inc., 456 F.3d 1291, 1305-06 (11th Cir. 2006); Malautea

(...continued)

order to submit to a physical or mental
examination.
(B) For Not Producing a Person for
Examination. If a party fails to comply
with an order under Rule 35(a) requiring
it to produce another person for
examination, the court may issue any of
the
orders
listed
in
Rule
37(b)(2)(A)(i)-(vi),
unless
the
disobedient party shows that it cannot
produce the other person.
(C) Payment of Expenses. Instead of or
in addition to the orders above, the
court must order the disobedient party,
the attorney advising that party, or
both to pay the reasonable expenses,
including attorney's fees, caused by the
failure,
unless
the
failure
was
substantially
justified
or
other
circumstances make an award of expenses
unjust.”
Fed. R. Civ. P. 37(b)(2).
14

v. Suzuki Motor Co. Ltd., 987 F.2d 1536, 1542 (11th Cir.
1993).
Furthermore, if the plaintiff fails to prosecute or
to comply with a court order, then under Fed. R. Civ. P.
41(b) a defendant may move to dismiss the action or any
claim.
under

Unless the court states otherwise, a dismissal
Rule

merits.3

41(b)

constitutes

an

adjudication

on

the

The legal standard to be applied is whether

there is a “clear record of delay or willful contempt and
a

finding

that

lesser

sanctions

would

not

suffice.”

Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985)
3. Rule 41(b) provides:
“(b) Involuntary Dismissal; Effect. If
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.
Unless the dismissal order states
otherwise, a dismissal under this
subdivision (b) and any dismissal not
under this rule--except one for lack of
jurisdiction, improper venue, or failure
to join a party under Rule 19--operates
as an adjudication on the merits.”
Fed. R. Civ. P. 41(b).
15

(internal

citation

omitted).

While

dismissal

is

a

sanction of last resort, the decision is an inherent part
of a district court’s authority to enforce its orders.
Id.

IV. Discussion
Congress made clear that opt-in plaintiffs in a FLSA
case should have the same status in relation the claims
of the lawsuit as do the named plaintiffs. See Morgan v.
Family Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th
Cir. 2008).

In order to bring a collective-action FLSA

case, “similarly situated employees must affirmatively
opt into the litigation.” Id.

The existence of the

collective action depends on “active participation of
other plaintiffs.” Id. (internal citation omitted).
By affirmatively joining this FLSA lawsuit, the 14
opt-in

plaintiffs

listed

above

accepted

a

duty

to

participate in this case by appearing for depositions and
responding to discovery requests.

16

While some delay or

rescheduling of depositions may be justified, nothing in
the record is offered to explain these opt-in plaintiffs’
failure to answer interrogatories or cooperate with their
own

attorneys.

The

named

plaintiff’s

counsel

made

efforts by telephone and mail to seek the cooperation of
these opt-in plaintiffs and explicitly informed each optin plaintiff that a failure to respond to interrogatories
could mean his or her dismissal from the case.

Despite

these repeated efforts, these 14 opt-in plaintiffs have
been

unresponsive

to

their

threatened with dismissal.

own

lawyers

even

when

While some opt-in plaintiffs

explicitly indicated that they wanted to be dismissed
from this case, none provided written permission to do so
as requested by their lawyer.
In light of these 14 opt-in plaintiffs’ disregard for
their

discovery

obligations

and

their

lack

of

communication with their own attorneys, the court finds
dismissal of their claims appropriate under both Rules
37(b)(2) and 41(b).

The court interprets the opt-in

17

plaintiffs’ actions as a “deliberate refusal” to comply
with the court’s discovery order, Phipps, 8 F.3d 790-791,
and, indeed, as a simple abandonment of this litigation.
The named plaintiff’s counsel cannot offer any evidence
to explain the opt-in plaintiffs’ failure to respond to
court orders or participate in discovery, nor do they
suggest that additional orders from the court will elicit
any response or participation.
Moreover, the court finds that imposing sanctions
short of dismissal would not work.

Even if the court

were to grant a motion to compel, the record indicates
that the opt-in plaintiffs would be unresponsive to such
an order, further delaying the progress of this case.

In

some instances, as stated, the opt-in plaintiffs have
explicitly indicated that they are no longer interested
in actively participating in this case.

Indeed, these

opt-in plaintiffs appear to have such little investment
in the case that they have failed to follow through by
providing written authorization to the named plaintiff’s

18

counsel for dismissal.

In short, the opt-in plaintiffs’

lack of response and participation demonstrates to this
court

a

knowing

and

voluntary

lack

of

interest

in

continuing as opt-in plaintiffs.

***

Based

on

the

14

opt-in

plaintiffs’

“deliberate

refusal to comply” with the court’s discovery order,
their obvious lack of interest in their own claims, and
their lack of responsiveness to the named plaintiff’s
counsel, the court will, pursuant to both Rule 37(b)(2)
and Rule 41(b) of the Federal Rules of Civil Procedure,
grant Daewon America’s dismissal motion and will dismiss
with prejudice the following 14 opt-in plaintiffs from
this FLSA case:

Matthew Bolt, James Brooks, Willie

Davis, Jeffery Heard, Charlie Herron, Kathleen Hursh,
Euseiok Jeong, Daniel Kim, Ji Kun Kim, Edwin Reece, David
Sargent, Icjock Taylor, Barbara Wise, and James Yielding.

19

And appropriate judgment will be entered.
DONE, this the 18th day of April, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE