DINKEL et al v. MEDSTAR HEALTH INC. et al

Filing 108

MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on June 26, 2014. (lcckk1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PEGGY DINKEL, VALARIE GADSON,
AND DEIDRE BECKFORD, for themselves
and all others similarly situated
Plaintiffs,
Civil Action No. 11-0998 (CKK)

v.
MEDSTAR HEALTH INC. AND
WASHINGTON HOSPITAL CENTER
Defendants.

MEMORANDUM OPINION
(June 26, 2014)
Plaintiffs bring this action against MedStar Health, Inc. and Washington Hospital Center
(collectively “Defendants”), claiming that Defendants violated the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201 et seq., and the District of Columbia Minimum Wage Act, D.C.
Code §§ 32-1001 et seq., by failing to compensate them for “meal break” and “uniform
maintenance” work. Presently before the Court is Defendants’ [97] Motion to Dismiss with
Prejudice Plaintiffs that Failed to Fulfill Their Discovery Obligations. Upon consideration of the
pleadings 1, the relevant legal authorities, and the record as a whole, the Court GRANTS IN
PART and DENIES IN PART Defendants’ [97] Motion to Dismiss With Prejudice Plaintiffs
That Failed to Fulfill Their Discovery Obligations. Specifically, the Court DENIES WITHOUT
1

Defs.’ Mot. to Dismiss With Prejudice Pls. That Failed to Fulfill Their Discovery
Obligations, ECF No. [97] (“Defs.’ Mot.”); Defs.’ Mem. in Supp. of Mot. to Dismiss with
Prejudice Pls.’ That Failed to Fulfill Their Discovery Obligations, ECF No. [97-4] (“Defs.’
Mem.”); Pls.’ Mem. of Law in Opp’n to Defs.’ Mot. to Dismiss With Prejudice Pls.’ That Failed
to Fulfill Their Discovery Obligations, ECF No. [100-2] (“Pls.’ Opp’n”); Defs.’ Reply mem. in
Supp. of Mot. to Dismiss With Prejudice Pls.’ That Failed to Fulfill Their Discovery Obligations,
ECF No. [102] (“Defs.’ Reply”).
1

PREJUDICE Defendants’ request to dismiss with prejudice members of the Uniform
Maintenance Class who have failed to respond to Defendants’ interrogatories or appear as
scheduled for depositions. These Plaintiffs will be provided one final opportunity to show cause
why their claims should not be dismissed. The Court GRANTS Defendants’ request to dismiss
members of the Meal Break Class who failed to satisfy their discovery obligations, as Plaintiffs
have conceded this portion of the motion.

The Court DENIES WITHOUT PREJUDICE

Defendants’ request for attorney’s fees, and would be willing to consider a renewed request for
these fees at a later date.
I. BACKGROUND
On July 29, 2012, the Court granted in part and denied in part Plaintiffs’ motion for
conditional certification, conditionally certifying this case as a collective action with respect to
two of Plaintiffs’ claims. See Dinkel v. MedStar Health, Inc., 880 F.Supp.2d 49 (D.D.C. 2012).
With respect to Plaintiffs’ uniform maintenance claim, the Court conditionally certified a
collective action covering all non-exempt, hourly employees who worked at any of nine
identified MedStar Health, Inc. hospitals in any workweek from May 26, 2008 to July 29, 2012
(the “Uniform Maintenance Class”). Id. at 51. Regarding Plaintiffs’ meal break claim, the Court
conditionally certified a collective action covering all non-exempt hourly employees who work
or worked in WHC’s Emergency Department or 4NE Medical Cardiology Unit in any workweek
from May 26, 2008 to the present (the “Meal Break Class”). Id.
By its January 9, 2013 [56] Order, the Court permitted Defendants to propound a limited
number of interrogatories on each member of the Uniform Maintenance Class, which then
totaled 455 members, concluding that such interrogatories were permissible to the extent
“narrowly targeted to elicit information relating to the threshold question as to whether class

2

members are similarly situated.” Order, ECF No. [56] at 4. Defendants argued, and the Court
agreed, that such individualized “discovery [was] essential for determining whether members of
this class are or are not similarly situated for purposes of class certification” and thus would be
necessary given Defendants’ stated intent to move to decertify the conditionally certified
Uniform Maintenance Class at a later, appropriate time. Id. at 2. Given these concerns, the
Court rejected Plaintiffs’ alternative proposal that Defendants be limited “to serving narrowlytailored interrogatories on no more than 35 randomly-selected class members.” Id.
Subsequently, after providing Plaintiffs an opportunity to file specific objections to the
wording and substance of Defendants’ proposed interrogatories, in its February 8, 2013 [64]
Order, the Court permitted Defendants to propound all five of their proposed interrogatories on
each member of the Uniform Maintenance Class.

The Court again rejected “Plaintiffs’

conclusory and wholly unsubstantiated forecasting that ‘evidence from 455 Plaintiffs on uniform
maintenance is likely to be redundant, and, at a minimum, differ only as a matter of degree,
rather than kind.’” Order, ECF No. [64] at 6. The Court also discounted Plaintiffs’ argument
“that Defendants must necessarily have some of this information in their personnel files” finding
persuasive Defendants’ arguments that these interrogatories “will permit Defendants to compare
the opt-in class members’ response[s] to [their] own records and determine any discrepancies.”
Id. at 8-9.
On July 9, 2013, Defendants filed a [68] Motion to Compel Discovery Responses,
seeking an order compelling (1) 303 opt-in Plaintiffs to provide full and complete answers to
Defendants’ interrogatories to Uniform Maintenance Class Members; and (2) 20 opt-in Plaintiffs
to provide full and complete responses and documents to Defendants’ requests for production of
documents to Meal Break Class Members. Defendants represented that on February 22, 2013, in

3

accord with the Court’s [64] Order, they had served the Court-approved interrogatories on the
455 Uniform Maintenance Class Members and requests for production of documents on the 20
Meal Break Class Members. See Defs.’ Mot. to Compel Discovery Responses, ECF No. [68] at
1. Generally, discovery responses are due 30 days after service. However, Plaintiffs’ counsel
requested, and counsel for Defendants stipulated to, an extended deadline of April 26, 2013, for
written discovery responses. See Defs.’ Mem. in Supp. of Mot. to Compel Discovery Responses,
ECF No. [68-1] at 1. In their motion to compel, Defendants stated that while they had received
some of the required responses, the vast majority remained outstanding. Defs.’ Mot. to Compel
Discovery Responses, ECF No. [68] at 2. After providing Plaintiffs an opportunity to respond
and provide additional responses, the Court granted Defendants’ motion insofar as the Court
required “(1) the 292 opt-in Uniform Maintenance plaintiffs to provide full and complete
answers to Defendants’ interrogatories to Uniform Maintenance Class Members, which were
previously approved by this Court; and (2) the 15 opt-in Meal Break plaintiffs to provide full and
complete answers and documents responsive to Defendants’ requests for production of
documents to Meal Break Class Members.” See Minute Order (July 21, 2013). The Court again
rejected Plaintiffs’ argument that the partial discovery already provided was sufficient, noting
that this contention was “in brazen disregard of this Court's prior orders granting limited
individualized discovery in this matter.” Id. The Court ordered the parties to jointly file by July
24, 2013, “two proposed orders (one pertaining to the Uniform Maintenance Class; one
pertaining to the Meal Break Class), which shall be directed to those opt-in plaintiffs who have
not yet responded to Defendants' discovery requests, and which shall instruct them to so respond
within TWENTY-FIVE (25) days or risk dismissal of their claims.” Id. (emphasis added). The
Court further instructed Plaintiffs’ counsel to mail a copy of the relevant order to each class

4

member who had not yet responded to Defendants’ discovery requests within three days of
approval of the Order. Id. On July 24, 2013, the Court approved the two proposed orders
instructing all-opt in class members who had not yet done so to provide the necessary discovery
responses. These orders further advised the opt-in Plaintiffs that “[f]ailure to provide document
request responses as required by this Order may result in dismissal from the lawsuit.”
On February 18, 2014, Defendants filed the present [97] Motion to Dismiss with
Prejudice Plaintiffs that Failed to Fulfill Their Discovery Obligations. In their motion and
accompanying memorandum, Defendants state that they have still not received discovery
responses from a significant number of opt-in Plaintiffs. Defs.’ Mot. at 1-2; Defs.’ Mem. at 4.
Specifically, Defendants seek the dismissal of 171 members of the Uniform Maintenance Class
who failed to respond to the individual interrogatories as required by the Court’s Order. Defs.’
Reply at 3. Defendants also seek the dismissal of an unspecified number of Meal Break Class
members who have failed to respond to Defendants’ requests for the production of documents, as
required by the Court’s Order. Defs.’ Mot. at 2. In addition, Defendants seek the dismissal of
opt-in Plaintiffs in both the Uniform Maintenance Class and the Meal Break Class who failed to
appear for scheduled depositions. Id. at 1. On May 21, 2013, Defendants noticed 35 opt-in
Plaintiffs for deposition. Numerous opt-in Plaintiffs failed to attend their deposition while others
cancelled shortly before the deposition. Defs.’ Mem. at 4. Plaintiffs now seek the dismissal of
12 opt-in Plaintiffs, constituting members of both classes, who failed to appear for their
depositions. 2 Defs.’ Mot. at 1.
II. LEGAL STANDARD

2

Defendants certify that, prior to filing the present motion for sanctions, they conferred
in good faith with Plaintiffs’ counsel in an effort to obtain the discovery sought without court
action, as required by Fed. R. Civ. P. 37(d)(1)(B). Defs.’ Mem. at 11.
5

“The Federal Rules of Civil Procedure allow a court to impose sanctions for a party’s
failure to cooperate during the course of discovery.” Davis v. Dist. of Columbia Child & Family
Svcs. Agency, --- F.Supp.2d ----, 2014 WL 2507921, at *7 (D.D.C. June 4, 2014). Federal Rule
of Civil Procedure 37 “sets forth specific guidelines for the imposition of sanctions when a party
fails to disclose information or witnesses, answer interrogatories, attend a deposition, or comply
with a court order.” Id. See also Fed. R. Civ. P. 37(b)(2), (d). Pursuant to Rule 37, a district
court has broad discretion to impose sanctions for discovery violations. Nat’l Hockey League v.
Metro. Hockey Club, Inc., 427 U.S. 639, 642-43 (1976) (per curiam). Among other permissible
sanctions, Rule 37 authorizes a court to dismiss an action or proceeding in whole or in part for a
party’s failure to comply with a court order, answer interrogatories, or attend a deposition. Fed.
R. Civ. P. 37(b)(2)(A)(v), (d)(3).
“The central requirement of Rule 37 is that ‘any sanction must be just,’ which requires in
cases involving severe sanctions that the district court consider whether lesser sanctions would
be more appropriate for the particular violation.” Bonds v. Dist. of Columbia, 93 F.3d 801, 808
(D.C. Cir. 1996) (quoting Insurance Corp. v. Compagnie des Bauxites de Guinée, 456 U.S. 694,
707 (1982)). “The choice of sanction should be guided by the ‘concept of proportionality’
between offense and sanction.” Id. “In determining whether a severe sanction is justified, the
district court may consider the resulting prejudice to the other party, any prejudice to the judicial
system, and the need to deter similar misconduct in the future.” Id. In this respect, “[d]ismissal
is a sanction of last resort to be applied only after less dire alternatives have been explored
without success or would obviously prove futile.” Shea v. Donohoe Constr. Co., 795 F.2d 1071,
1077 (D.C. Cir. 1986) (internal quotation marks omitted). Nevertheless, dismissal of noncompliant class plaintiffs who fail to fulfill their discovery obligations is appropriate where

6

“further extensions [would be] obviously futile.” Arias v. DynCorp, --- F.3d ----, 2014 WL
2219109, at *3 (D.C. Cir. May 30, 2014).
“While a Rule 37(b) dismissal usually follows some showing of willfulness, bad faith or
fault, a plaintiff’s persistent failure to comply with discovery and discovery-related orders can be
viewed as willful where multiple warnings and second chances have been given to the plaintiff.”
Arias v. DynCorp Aerospace Operations, LLC, 677 F.Supp.2d 330, 332 (D.D.C. 2010), aff’d sub
nom, Arias v. DynCorp, --- F.3d ----, 2014 WL 2219109 (D.C. Cir. May 30, 2014). See also
Handy v. Shaw, Bransford, Veilleux & Roth, No. 00-cv-2336, 2006 WL 3791387, at *8 (D.D.C.
Dec. 22, 2006) (“[I]n light of the multiple warnings and second-chances that Plaintiff has been
given, her persistent failure to comply with discovery and discovery-related Orders by this Court
and Magistrate Judge Kay cannot be viewed as anything other than willful.”)
III. DISCUSSION
The Court reads Defendants’ motion to seek the dismissal of four types of opt-in
Plaintiffs: (1) Uniform Maintenance Class Members who failed to respond to Defendants’
interrogatories (“Non-Responsive Uniform Maintenance Class Members”), (2) Uniform
Maintenance Class Members who failed to appear for their depositions (“No-Show Uniform
Maintenance Class Members”), (3) Meal Break Class Members who failed to respond to
Defendants’ document requests (“Non-Responsive Meal Break Class Members”), and (4) Meal
Break Class Members who failed to appear for their depositions (“No-Show Meal Break Class
Members”). The Court addresses each of these groups of opt-in Plaintiffs below. The Court
then addresses Defendants’ request for attorneys’ fees pursuant to Federal Rule of Civil
Procedure 37(b)(2)(C) and (d)(3).
A. Non-Responsive Uniform Maintenance Class Members

7

Defendants seek to dismiss 171 opt-in members of the Uniform Maintenance Class who
failed to provide the individual written discovery responses required by this Court’s prior Orders.
Defs.’ Reply at 3 (“To date, 171 Plaintiffs still have not responded to the written discovery
requests.”). Plaintiffs and class counsel concede that these opt-in Plaintiffs failed to satisfy their
discovery obligations, but nevertheless argue that the sanctions sought by Defendants are
inappropriate. See Pls.’ Opp’n at 6 (“Plaintiffs’ failure to supply written discovery responses
from Uniform Maintenance Class Members . . . does not justify imposition of the requested
sanctions.”). First, Plaintiffs argue that dismissal would be improper because class counsel and
the responsive members of the Uniform Maintenance Class have been diligent in meeting their
discovery obligations. Id. at 3-4. Accordingly, they argue that sanctions are unjustified where
Defendants have not shown culpability or fault on the part of Plaintiffs and class counsel in
complying with discovery obligations. Id. at 4. Yet the diligence and fault of class counsel and
the opt-in Plaintiffs who have responded to their discovery obligations is beside the point in
addressing Defendants’ present motion. Rather, the issue is the diligence and willfulness of the
opt-in Plaintiffs who have not responded to Defendants’ requests for written discovery and the
Court’s Orders requiring them to comply with these requests. There is no dispute that these optin Plaintiffs have failed to provide the required discovery. Moreover, as discussed, the opt-in
Plaintiffs’ failure to respond to Defendants’ written discovery requests, despite repeated
opportunities to do so, provides evidence of their willfulness. Arias, 677 F.Supp.2d at 332;
Handy, 2006 WL 2791387, at *8.
Next, Plaintiffs argue that the partial discovery provided is sufficient, as “[t]he written
discovery responses and testimony Plaintiffs have produced span the facilities and dates at issue
in this litigation and will permit the Parties to present informed arguments on the relevant issues

8

and help the Court make an informed decision on the merits of Plaintiffs’ uniform maintenance
class.” Pls.’ Opp’n at 1. Plaintiffs appear to contend that the failure to provide the discovery
responses is harmless. Yet, as Defendants correctly point out, Defs.’ Reply at 5, the Court has
repeatedly rejected this argument. In permitting Defendants to propound a limited number of
interrogatories on each opt-in Plaintiff, the Court recognized that Defendants’ interrogatories
“are highly relevant to whether the opt-in class members are similarly situated, as they are
intended to elicit information regarding the identity of the hospital(s) and departments where
each opt-in Plaintiff worked, the type of uniform each Plaintiff was required to wear, and . . . the
time spent and specific tasks conducted in connection with maintenance of that uniform.” Order,
ECF No. [64] at 8. And as noted, the Court previously rejected “Plaintiffs’ conclusory and
wholly unsubstantiated forecasting that ‘evidence from 455 Plaintiffs on uniform maintenance is
likely to be redundant, and, at a minimum, differ only as a matter of degree, rather than kind.’”
Id. at 6. At the decertification stage, the Court must “make[] a factual determination whether the
plaintiffs who have opted in are in fact ‘similarly situated’ to the named plaintiffs.” Blount v.
U.S. Sec. Assoc., 945 F.Supp.2d 88, 93 (D.D.C. 2013). For the reasons discussed in the Court’s
prior Orders, without the interrogatory responses from each opt-in Plaintiff, Defendants will be
hindered in developing any argument that, as a factual matter, the opt-in Plaintiffs are not
similarly situated to the named Plaintiffs, as they lack factual information needed for this
argument. Moreover, the Court will be at a disadvantage in deciding such a motion. See Lugo v.
Farmer’s Pride Inc., 737 F.Supp.2d 291, 299 (E.D. Pa. 2010) (requiring the Court, upon a
motion for decertification, to conduct “a specific factual analysis of each employee’s claim to
ensure that each proposed plaintiff in an appropriate member of the collective action.”)
(emphasis added).

9

Failing in these arguments, Plaintiffs argue that dismissal with prejudice is a drastic
sanction that is not justified here, and they therefore propose a series of lesser sanctions. Pls.’
Opp’n at 7-8. This Court is obligated to “consider whether lesser sanctions would be more
appropriate for the particular violation.” Bonds, 93 F.3d at 808. Plaintiffs propose the following
options: (1) an Order barring the non-responsive class members from introducing individual
proof of their claims at summary judgment, trial, or both; (2) an Order barring the nonresponsive class members from introducing individual proof of their damages at trial and,
instead, requiring them to rely on inferences flowing from the evidence presented by other class
members for proof of damages, (3) an Order permitting Defendants to use facts contained in the
written discovery responses provided by time-barred class members, (4) an Order barring
Plaintiffs from seeking damages discovery relating to the non-responsive class members, or (5)
an Order dismissing the non-responsive class members claims without prejudice. Pl.s.’ Opp’n at
7-8. Yet these lesser sanctions proposed by Plaintiffs are not proportional to the offense here, as
they fail to mitigate the prejudice suffered by Defendants from the failure to provide discovery
responses for each opt-in Plaintiff. As discussed, the failure to provide these discovery responses
severely hinders Defendants ability to argue that the opt-in Plaintiffs, including those who failed
to comply with their discovery obligations, are not similarly situated to the named Plaintiffs. By
keeping these Plaintiffs in the litigation (or allowing them to return to the litigation without
prejudice) while at the same time providing none of the additional information sought by
Defendants, Plaintiffs’ proposed lesser sanctions are an insufficient remedy.
Nevertheless, although the Court concludes that the lesser sanctions proposed by
Plaintiffs are inadequate, it is not prepared at this juncture to impose the severe sanction of
dismissal with prejudice proposed by Defendants. Rather, the Court will adopt a lesser sanction

10

proposed by Defendants in their reply brief, providing the non-responsive opt-in Plaintiffs one
final opportunity to provide the discovery responses requested by Defendants and required by
this Court’s Orders, and to explain their failure to provide this discovery. See Defs.’ Reply at 12.
Accompanying this Memorandum Opinion is an Order directed to those opt-in Plaintiffs in the
Uniform Maintenance Class who have not yet responded to Defendants’ discovery requests. The
Order instructs these opt-in Plaintiffs that if they do not provide the necessary written discovery
and explain their previous failure to respond to Defendants’ individualized interrogatories within
thirty days of the issuance of the Order, their claims will be dismissed with prejudice from this
litigation. Plaintiffs’ counsel shall mail a copy of this Order to each non-responsive Uniform
Maintenance Class member within three business days of the issuance of this Order. A decision
on whether these Plaintiffs should be dismissed will await any responses to this Order. The
Court advises the parties that in reviewing these responses, it will not entertain arguments
already rejected in previous Orders, including the argument that individualized discovery is not
necessary in this case.
Such a sanction is in keeping with D.C. Circuit precedent. In Arias, the D.C. Circuit
“reject[ed] [a] challenge brought by the 163 plaintiffs who were dismissed for failure to provide
complete responses to the court-ordered questionnaires.” Arias, 2014 WL 2219109, at *3.
“After plaintiffs’ repeated failures to adequately complete the responses – and three deadline
extensions – the district court ultimately exercised its Rule 37(b) prerogative to sanction the
plaintiffs by dismissing the case.” Id. The D.C. Circuit affirmed, rejecting plaintiffs’ contention
that “dismissal was too harsh of a sanction,” and noting that “the court gave the plaintiffs every
opportunity to complete their responses.” Id. The panel concluded that it would “be impossible

11

to conclude that the [district court] judge abused his discretion” by dismissing these plaintiffs
“when further sanctions were obviously futile.” Id.
So too here, the Court has provided opt-in Plaintiffs several opportunities in which to
satisfy their discovery obligations. Plaintiffs were initially expected to comply with their written
discovery obligations by April 26, 2013. Defs.’ Mem. at 2. On July 24, 2013, after Defendants
filed a motion to compel the missing discovery responses, the Court granted the opt-in Plaintiffs
an additional twenty-five days in which to submit their responses, warning them that failure to
respond could result in dismissal of their claims. Order, ECF No. [76]. Now, almost a year later,
a substantial number of discovery responses remain outstanding.

Yet, while many opt-in

Plaintiffs have certainly been delinquent in their discovery obligations, the Court is not yet ready
to conclude that “further extensions [would be] obviously futile.” Arias, 2014 WL 2219109, at
*3. As Defendants concede, previous extensions have resulted in Plaintiffs providing additional
missing discovery responses. Defs.’ Mem. at 3. In addition, the Court has only provided one
previous extension of the deadline, by granting Defendants’ motion to compel. By contrast, in
Arias, the district court provided plaintiffs three extensions, although the D.C. Circuit concluded
that by granting such repeated extensions the court was “if anything, too patient.” Arias, 2014
WL 2219109, at *3. Here, in attempting to strike the balance between being too strict and being
too patient, as it must under binding precedent, the Court will provide opt-in Plaintiffs one final
extension of thirty days in which to comply with the discovery requests and show cause why
their claims should not be dismissed.
While the course set out in this Order is not precisely the one proposed by Defendants,
the Court notes that Defendants are hardly prejudiced by this brief extension. No motion for
decertification is due to be filed in the near future, as the parties are still in the process of briefing

12

Defendants’ motion for summary judgment as to the Uniform Maintenance Class, which will not
be completed until August 8, 2014, at the earliest. See Scheduling and Procedures Order, ECF
No. [99].
B. No-Show Uniform Maintenance Class Members
Defendants next seek to dismiss the claims of 12 opt-in Plaintiffs in the Uniform
Maintenance Class who failed to attend their own depositions. Defs.’ Mem. at 4-11. With
respect to the no-show opt-in Plaintiffs, Plaintiffs raise the same arguments against dismissal that
this Court has already rejected in the context of the non-responsive Plaintiffs. Pls.’ Opp’n at 3-7.
First, the diligence of class counsel in providing other Uniform Maintenance Class members for
deposition, and the participation of these other class members in depositions, has no bearing on
the resolution of Defendants’ motion. The issue is the apparent failure of certain Plaintiffs to
appear for their deposition as well as their decision to remain unresponsive regarding requests to
reschedule. In addition, the Court also rejects Plaintiffs’ argument that any failure to appear for
depositions is harmless because the “testimony Plaintiffs have produced span[s] the facilities and
dates at issue in this litigation and will permit the Parties to present informed arguments on the
relevant issues and help the Court make an informed decision on the merits of Plaintiffs’ uniform
maintenance claim.” Id. at 1-2. Like the failure to provide individual interrogatory responses,
the failure to appear for depositions hinders Defendants in their ability to investigate any
eventual motion for decertification of the Uniform Maintenance Class. As Defendants point out,
deposition testimony allows Defendants to identify individualized defenses for these Plaintiffs,
which would be of aid in a motion for decertification. Defs.’ Reply at 7. As other courts have
noted “[i]n considering a motion to decertify alleging dissimilarity of the plaintiff class, courts
have considered . . . the various defenses available to defendant which appear to be individual to

13

each plaintiff.” Rawls v. Augustin Home Health Care, Inc., 244 F.R.D. 298, 300 (D. Md. 2007)
(quoting Thiessen v. Gen. Elec. Capital Group, 996 F.Supp. 1071, 1081 (D. Kan. 1998)). See
also Brennan v. Qwest Commc’ns Int’l, Inc., No. 07-2024, 2009 WL 1586721, at *8-9 (D. Minn.
June 4, 2009) (“being prevented from conducting timely depositions limits Qwest’s ability to
gather evidence that might reveal the presence of individualized defenses, which would be
particularly relevant to the decertification motion and is a clear example of prejudice.”).
Plaintiffs, for their part, argue that any prejudice to Defendants is mitigated because the Plaintiffs
who were scheduled to appear for depositions had provided written discovery responses. 3 Pls.’
Opp’n at 6-7 n. 2. Yet, if anything, the provision of written discovery heightens the need for
depositions, as it provides Defendants their only opportunity to cross-examine an opt-in Plaintiff
concerning his or her written discovery responses, probe potential individualized defenses and
clarify ambiguous statements in preparation for a motion to decertify. Defs.’ Reply at 7.
As with the non-responsive opt-in Plaintiffs, the lesser sanctions proposed by Plaintiffs
fail to mitigate this prejudice because they do not provide Defendants the information denied by
Plaintiffs’ failure to appear for their deposition. Yet, as with the non-responsive members of the
Uniform Maintenance Class, the Court is unwilling at this time to impose the sanction of
dismissal with prejudice sought by Defendants. Indeed, unlike the non-responsive Plaintiffs, the
no-show Plaintiffs have not received a prior Court order warning them that their failure to
comply with their discovery obligations could result in dismissal of their claims. Accordingly,
because the Court is not convinced that further efforts to compel deposition of these opt-in
Plaintiffs would be “obviously futile”, Arias, 2014 WL 2219109, at *3, the Court will provide

3

There appears to be disagreement on this point, as Plaintiffs assert that all of the no-show
Plaintiffs provided discovery, while Defendants claim that they received no written discovery
from two of the no-show Plaintiffs. Compare Defs.’ Mem. at 5 with Pls.’ Opp’n at 6-7 n.2
14

these Plaintiffs an additional opportunity to comply with their discovery obligations and explain
their previous failure to comply. Accompanying this Memorandum Opinion is an Order directed
to those opt-in Plaintiffs who have failed to appear for depositions as scheduled. The Order
instructs these opt-in Plaintiffs, within thirty days of the issuance of the Order, to (a) explain
their previous failure to appear for depositions, and (b) indicate availability and willingness for a
future scheduled deposition, or have their claims dismissed with prejudice from this litigation.
Plaintiffs’ counsel shall mail a copy of the Order to each no-show Uniform Maintenance Class
member within three business days of the issuance of this Order. A decision on whether these
Plaintiffs should be dismissed will await any responses to this Order. The Court advises the
parties that in reviewing these responses, it will not entertain arguments already rejected in
previous Orders.
C. Meal Break Class Members
Defendants also seek sanctions for the failure of several opt-in Plaintiffs in the Meal
Break Class to respond to Defendants’ requests for production of documents. See Defs.’ Mem.
at 2 (explaining that members of the Meal Break Class failed to satisfy their discovery obligation
and requesting the Court “dismiss with prejudice the claims of all opt-in Plaintiffs that have not
fulfilled their discovery obligations.”). Defendants do not specify exactly which opt-in Plaintiffs
it seeks to dismiss from each class, but the Court notes that Defendants’ list of 171 Plaintiffs
proposed for dismissal for failure to provide written discovery includes 171 members of the
Uniform Maintenance Class. See Defs.’ Mot, Ex. 1 (List of Non-Responsive Plaintiffs). This
list also includes at least three individuals who are members of both classes: Marlene Barber,
Rajini Raj, and Barbara Townsend. Id. Through their motion, the Court understands Defendants

15

to be seeking the dismissal of these Plaintiffs from the Meal Break Class, in addition to dismissal
from the Uniform Maintenance Class.
Plaintiffs offer no rejoinder to Defendants’ argument that the non-responsive Meal Break
Class Members should be dismissed with prejudice for failure to comply with their discovery
obligations. Indeed, Plaintiff’s Opposition fails to even mention the Meal Break Class, arguing
only that dismissal is an inappropriate sanction for the discovery failures of members of the
Uniform Maintenance Class. Accordingly, the Court treats the portion of Defendants’ Motion to
Dismiss seeking dismissal of the non-responsive Meal Break Class members as conceded. See
Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C. 2002)
(citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997)) (“It is well understood in this
Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain
arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to
address as conceded.”).
Based on the Court’s review, the Meal Break Class Members who failed to appear for
their depositions constitute a subset of the Meal Break Class Members who failed to satisfy their
written discovery obligations. See Defs.’ Mem. at 5-6 (identifying Rajini Raj and Barbara
Townsend as individuals who failed to appear for depositions). Since Plaintiffs have conceded
Defendants’ argument that the latter set of opt-in Plaintiffs should be dismissed, any argument
that the former should also be dismissed is moot. However, to the extent that there are Meal
Break Class Members who failed to appear for their depositions but did satisfy their written
discovery obligations, Defendants’ motion to dismiss is also granted with respect to these
Plaintiffs. Again, Plaintiffs’ Opposition fails to provide any counter to Defendants’ arguments
that members of the Meal Break Class – including those members who failed to appear for their

16

depositions – should be dismissed with prejudice. Accordingly, this portion of Defendants’
motion to dismiss is granted as conceded. See Hopkins, 238 F.Supp.2d at 178.
D. Attorney’s Fees
In addition to the sanctions discussed above, Defendants also seek to recover the
attorney’s fees incurred as a result of the delinquent opt-in Plaintiffs’ failure to fulfill their
discovery obligations. Defs.’ Mem. at 16. Pursuant to Federal Rule of Civil Procedure 37(d)(3),
when a party fails to satisfy its discovery obligations, “[i]nstead of or in addition to [other
sanctions provided for by the Rule], the court must require the party failing to act, 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(d)(3). Federal Rule of Civil Procedure 37(b)(2)(C) uses
similar language to authorize attorney’s fees where a party fails to comply with a court order.
Although Defendants seek attorney’s fees pursuant to these provisions, they fail to
specify from whom they seek remuneration. Instead, they point to the use of the term “must” in
the relevant provision and argue that they are entitled to recover fees. Defs.’ Mem. at 16.
However, at other points in their briefing, Defendants concede that the discovery failures at issue
are not due to the misconduct of Plaintiffs’ counsel. Defs.’ Reply at 10. Therefore, due to
Plaintiffs’ counsel’s blamelessness in these failures, the Court concludes in an exercise of its
discretion that “circumstances make an award of expenses unjust” against the attorneys advising
the delinquent parties. See Gordon v. Kaleida Health, No. 08-cv-378S(F), 2013 WL 2250431, at
*7 (W.D.N.Y. May 21, 2013) (“as the record supports that the failure to provide discovery in
compliance with the court’s July 19, 2012 D & O cannot fairly be attributed to any lack of
diligence or other fault by Plaintiff’s counsel, the court finds that such expenses, awardable to

17

Defendants, are solely attributable to the unresponsive opt-in Plaintiffs, and not Plaintiffs’
counsel.”).
Here, the parties failing to act, and thus responsible for the discovery failures, are the
delinquent opt-in Plaintiffs. Yet while other courts have concluded that attorney’s fees may be
assessed against opt-in Plaintiffs in an FLSA collective action, see, e.g., Gordon, 2013 WL
2250431, at *7, the Court deems such additional sanctions inappropriate here. As an initial
matter, the Court is denying Defendants’ motion in part, having concluded that dismissal of the
delinquent Uniform Maintenance Class members is not an appropriate sanction at this juncture.
While this is not dispositive on the issue of attorney’s fees, as such expenses may be awarded
“[i]nstead of or in addition” to other sanctions provided for by Rule 37, see Fed. R. Civ. P.
37(b)(2)(C), (d)(3), it does counsel against an award of fees at this time. In addition, at least one
other court to consider awarding costs against a delinquent opt-in plaintiff in an FLSA collective
action has concluded that such an award would be “unjust.” See Luiken v. Domino’s Pizza LLC,
2009 WL 4723296, at *6 (D. Minn. Dec. 2, 2009) (“this Court concludes that ordering Mr.
Dougherty, who was a Domino’s Pizza delivery person, to pay reasonable expenses would be a
disproportionately severe sanction.”). Moreover, given the lack of contact between Plaintiff’s
counsel and a segment of the delinquent class, see Defs.’ Mem. at 4 (noting that “some of the
opt-in Plaintiffs ha[ve] become entirely non-responsive, even to their own counsel”), the Court is
uncertain that if it awarded the fees sought by Defendants, that collection of such expenses
would be feasible. Accordingly, the Court denies without prejudice Defendants’ request for
attorney’s fees.
Nevertheless, the Court is cognizant of the fact that Defendants have expended
substantial resources in pursuing unsuccessful discovery from the delinquent opt-in Plaintiffs.

18

Therefore, the Court would be willing to consider, at a later date, a renewed request for the
subject attorney’s fees. Such a request should explain why awarding attorney’s fees would avoid
the problems discussed above, namely the practicality and fairness issues involved in obtaining
fees from opt-in Plaintiffs in an FLSA collective action. The Court would also consider a
request to reduce any eventual recovery by Plaintiffs, should they prevail in this action, by the
amount of fees sought by Defendants for the discovery failures at issue.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Defendants’ [97] Motion to Dismiss With Prejudice Plaintiffs That Failed to Fulfill Their
Discovery Obligations. Specifically, the Court DENIES WITHOUT PREJUDICE Defendants’
request to dismiss with prejudice members of the Uniform Maintenance Class who have failed to
respond to Defendants’ interrogatories or appear as scheduled for depositions. These Plaintiffs
will be provided one final opportunity to show cause why their claims should not be dismissed.
The Court GRANTS Defendants’ request to dismiss members of the Meal Break Class who
failed to satisfy their discovery obligations, as Plaintiffs have conceded this portion of the
motion. The Court DENIES WITHOUT PREJUDICE Defendants’ request for attorney’s fees,
although would be willing to consider a renewed request for these fees at a later date. An
appropriate Order accompanies this Memorandum Opinion.
_____/s/______________________
COLLEEN KOLLAR-KOTELLY
United States District Judge

19