Alvarez et al v. Farmers Insurance Exchange et al

Filing 135

ORDER DISMISSING NON-RESPONSIVE OPT-IN PLAINTIFFS WITHOUT PREJUDICE - Cynthia Parris, Kent Huber and Rosario Cervantes have still not responded as directed by 110 Order to Show Cause, and plaintiffs' counsel offers no explanation for their non-responsiveness. Accordingly, they are DISMISSED without prejudice from this lawsuit. Signed by Judge William H. Orrick on 10/02/2015. (jmdS, COURT STAFF) (Filed on 10/2/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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MERCEDES ALVAREZ, et al.,
Plaintiffs,
v.
FARMERS INSURANCE EXCHANGE,
Defendant.

Case No. 14-cv-00574-WHO
ORDER DISMISSING NONRESPONSIVE OPT- IN PLAINTIFFS
WITHOUT PREJUDICE
Re: Dkt. Nos. 110, 129, 132

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On July 17, 2015, I issued an Order To Show Cause Why Non-Responsive Opt-In

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Plaintiffs Should Not Be Dismissed Per FRCP 37, Dkt. No. 110, because five plaintiffs who opted

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in to the Fair Labor Standards Act collective action had failed to respond to discovery more than

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three months after it had been propounded pursuant to an earlier Order, Dkt. No. 87. Cynthia

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Parris, Kent Huber and Rosario Cervantes have still not responded, and plaintiffs’ counsel offers

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no explanation for their non-responsiveness. Accordingly, they are DISMISSED without

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prejudice from this lawsuit.

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Plaintiffs argue that it is necessary to show willfulness, bad faith, or fault in order to

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dismiss the non-responsive plaintiffs, and that there is no evidence explaining their lack of

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responsiveness. Indeed, the non-responsive plaintiffs have not responded to discovery for almost

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six months nor explained why they have ignored the Order to Show Cause. As the Ninth Circuit

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held in Henry v. Gill Industries, Inc. 983 F.2d 943, 948 (9th Cir. 1993), disobedient conduct not

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shown to be outside the control of the litigant demonstrates sufficient willfulness, bad faith or fault

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to affirm the trial court’s dismissal under Federal Rule of Civil Procedure 37 for failure to comply

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with discovery obligations. Individuals do not have a choice of whether to comply with discovery

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obligations ordered by the Court.

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In deciding to dismiss the non-responsive plaintiffs I have considered the five factors listed

in Malone v United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). The non-responsive

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plaintiffs have interfered with the public’s interest in the expeditious resolution of litigation (their

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failure to respond has required two Orders from the Court and unnecessary briefing) and the

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ability of the court to manage its docket (they were part of a sample of opt-ins I ordered to reduce

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the discovery burden on the plaintiff class but insure adequate discovery of the opt-ins before class

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certification). Contrary to the suggestion in Computer Task Group Inc. v. Brotby, 364 F. 3d 1112,

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1115 (9th Cir. 2004), I think the public policy favoring disposition of cases on their merits also

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favors dismissal because, in this class action, discovery helps the parties evaluate the merits of the

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certification motion as well as the opt in plaintiffs’ claims. Allowing the non-responsive plaintiffs

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to be free-riders who fail to provide court-ordered discovery is unfair to defendants. That I could

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United States District Court
Northern District of California

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overlook their non-compliance until a decision on the merits in this case is a poor argument in

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light of their wholesale non-compliance with the Court’s Orders and their discovery obligations.

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I cannot think of an appropriate lesser sanction when the non-responsive plaintiffs fail to

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provide any excuse whatsoever for their non-compliance. My Order to Show Cause gave an

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explicit warning that they would be dismissed if they failed to comply, and they have had almost

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six months to do what they are required by law to do.

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That said, I do not know why the three opt-ins have been nonresponsive. Their dismissal

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is without prejudice. Perhaps if plaintiffs’ counsel is able to reestablish contact with them and

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they show good cause for their failure to respond to the discovery and comply with their discovery

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obligations, I may consider reinstating them as plaintiffs in this case.

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My Order to Show Cause allowed defendant to propound discovery to an equal number

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(three, in this case) of opt-in plaintiffs if any failed to comply. Defendant did not mention that

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relief in its Response, and further discovery may be unnecessary in light of the discovery it has

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received from the other opt-in plaintiffs. However, if defendant wishes to obtain the previously

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allowed discovery, the parties shall meet and confer to determine how that can be accommodated

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in light of the hearing on the motion for class certification on December 2, 2015.
IT IS SO ORDERED.
Dated: October 2, 2015
______________________________________
WILLIAM H. ORRICK
United States District Judge

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United States District Court
Northern District of California

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