Todd v. Daewon America, Inc.
OPINION AND ORDER as follows: (1) Dft Daewon America, Inc.'s 101 motion to dismiss is denied as to these three opt-in plfs: Byron Brundage, Donald Clayton, and Christopher Parker; (2) Opt-in plfs Brundage, Clayton, and Parker are not dismissed; (3) This dismissal motion is now completely resolved. Signed by Honorable Judge Myron H. Thompson on 5/13/2014. (Attachments: # 1 Civil Appeals Checklist)(wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
DAEWON AMERICA, INC.,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Kelvin Todd brings this action 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.,
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 three ‘opt-in plaintiffs’
For the reasons that follow, the
company’s motion will be denied as to these three opt-in
Todd worked for Daewon America from September 2,
2009, until December 3, 2011.
He worked in several
Opelika, Alabama, including shot peening, assembly, and
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
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 motion seeks dismissal of 18 total
opt-in plaintiffs. The court has already dismissed 15 of
them. Todd v. Daewon Am., Inc., 2014 WL 1572605 (M.D.
Ala. 2014), *5 & no. 1.
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 preshift time unless the employee worked an excess of 30
resulted in further under-compensation in violation of
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 alleging that, in violation
of the FLSA, Daewon America 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.
also alleges that the company, in violation of the FLSA,
deducted 30 minutes of pay for a lunch break despite
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,
Inc.’s manufacturing plant in Opelika, Alabama for the
three years preceding initiation of this suit to the
Todd v. Daewomn Am., Inc., 2013 WL 557859 *6
(M.D. Ala. 2013), as amended by Todd v. Daewon Am., Inc.,
2013 WL 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
The United States Magistrate Judge issued an order
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
Daewon America now moves to dismiss these three optin plaintiffs because of their insufficient responses to
interrogatories and their failure to appear for their
scheduled depositions: Brundage, Clayton, and Parker. The
named plaintiff’s counsel argue that, while the parties
dispute the sufficiency of the interrogatory responses
responses and therefore should not be dismissed from the
case and settlement agreement.
Under Fed. R. Civ. P. 37(b)(2), if a party fails to
obey an order to permit or provide discovery, the court
may issue further orders to remedy the failure or can
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. See Phipps v.
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
v. Suzuki Motor Co. Ltd., 987 F.2d 1536, 1542 (11th Cir.
Furthermore, under Fed. R. Civ. P. 41(b), if the
plaintiff fails to prosecute or to comply with a court
order, a defendant may move to dismiss the action or any
claim. Unless the court states otherwise, a dismissal
under Fed. R. Civ. P. 41(b) constitutes an adjudication
on the merits. 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). 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.
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.” 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
collective action depends on “active participation of
other plaintiffs.” Id.
By affirmatively joining this FLSA lawsuit, opt-in
plaintiffs Brundage, Clayton, and Parker accepted a duty
to participate in this case by appearing for depositions
and responding to discovery requests.
Unlike the 14
opt-in plaintiffs already dismissed from this case, see
Todd v. Daewon Am., Inc., 2014 WL 1572605 (M.D. Ala.
2014), opt-in plaintiffs Brundage, Clayton, and Parker
met most of their discovery obligations by providing
notarized responses to Daewon America’s interrogatories.
Although Daewon America alleges that the substance of
responded is nevertheless a demonstration of the opt-in
plaintiffs’ active involvement in the case. Furthermore,
unlike the 14 opt-in plaintiffs already dismissed, see
id., there is nothing in the record to suggest that these
three opt-in plaintiffs are entirely unresponsive to
orders from the court would be ignored.
plaintiffs Brundage, Clayton, and Parker have provided
responses to interrogatories, the court cannot find that
they deliberately disobeyed a court order, Blakeney, 8
F.3d at 790-791, or willfully delayed or abandoned the
case, Goforth, 766 F.2d 1533.
While it is true that they
failed to appear for depositions, dismissal is too harsh
responsive to the other discovery requests in the case
and given that the court is of the opinion that a lesser
sanction, such as a monetary one, would suffice and that
the needed discovery can still be obtained with further
Accordingly, it is ORDERED as follows:
dismiss (doc. no. 101) is denied as to these three opt-in
(2) Opt-in plaintiffs Brundage, Clayton, and Parker
are not dismissed.
(3) This dismissal motion is now completely resolved.
DONE, this the 13th day of May, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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