Stevenson et al v. The Great American Dream, Inc. et al
ORDER denying 127 Motion to Decertify or Amend Conditional Class; denying 130 Motion to Strike ; denying as moot 132 Motion to Strike. Opt-In Plaintiffs have 30 day to provide verified discovery responses or they will be dismissed from this action. Signed by Judge Thomas W. Thrash, Jr on 6/11/2015. (ss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
Individually and on behalf of others
similarly situated, et al.,
CIVIL ACTION FILE
THE GREAT AMERICAN DREAM,
INC. doing business as
Pinups, et al.,
OPINION AND ORDER
This is an FLSA overtime case. It is before the Court on the Defendants James
W. Lee, Sr. and The Great American Dream, Inc.’s Motion to Decertify or to Amend
the Conditional Class [Doc. 127], the Plaintiffs’ Motion to Strike the Affidavit of
James W. Lee, Sr. [Doc. 130], and the Plaintiffs’ Motion to Strike the Defendants’
Request for Attorneys’ Fees in their Reply Brief [Doc. 132]. For the reasons set forth
below, the Defendants’ Motion to Decertify or to Amend the Conditional Class [Doc.
127] is DENIED, the Plaintiffs’ Motion to Strike the Affidavit of James W. Lee, Sr.
[Doc. 130] is DENIED, and the Plaintiffs’ Motion to Strike the Defendants’ Request
for Attorneys’ Fees in their Reply Brief [Doc. 132] is DENIED as moot.
The Plaintiffs – current and former adult entertainers at Pin Ups Nightclub –
brought suit alleging that they were entitled to minimum wage and overtime
compensation under the FLSA. In particular, the Plaintiffs claimed that they were
improperly classified as “independent contractors,” rather than “employees,” and so
they were wrongfully deprived of certain benefits mandated by the FLSA. On
December 17, 2012, they moved for conditional certification of a collective action
class,1 which was granted on August 14, 2013.2 On September 11, 2013, the Plaintiffs
moved for partial summary judgment on the issue of whether the entertainers were
“employees” under the FLSA.3 The Court granted the Plaintiffs’ motion for partial
summary judgment on December 31, 2013.4
The final opt-in Plaintiff consent form was filed on February 4, 2014.5 On
March 12, 2014, the Defendants served Plaintiffs’ counsel with its “First
Interrogatories, First Request for Production Of Documents, And First Request for
Admissions To Opt-In Plaintiff.”6 Then on April 18, 2014, the Defendants served
Plaintiffs’ counsel with its “Second Interrogatories, Second Request for Production
Of Documents, And Second Request for Admissions To Opt-In Plaintiffs.”7 On
September 8, 2014, the discovery period for this case ended.8 The Defendants now
argue that multiple opt-in Plaintiffs have either failed to provide verified discovery
responses, or have failed to respond altogether. The Defendants ask the Court to either
dismiss the claims of these opt-in Plaintiffs, or to set a firm deadline by which they
must provide adequate responses to the Defendants’ discovery requests.
A. Motion to Decertify or Amend the Collective Action Class
Although the Defendants frame their motion as one for decertification or an
amendment to the collective action class, in reality it is simply a motion for the Court
to impose sanctions against certain Plaintiffs – e.g., dismissal of their claims – for
failure to comply with discovery requests. Federal Rule of Civil Procedure 37(b)(2)
“authorizes a district court to dismiss an action if a party ‘fails to obey an order to
provide or permit discovery.’”9 Because “dismissal with prejudice is considered a
drastic sanction, a district court may only implement it . . . when: (1) a party’s failure
to comply . . . is a result of willfulness or bad faith; and (2) the district court finds that
lesser sanctions would not suffice.”10 Dismissal “is justified only in extreme
circumstances and as a last resort.”11
Here, the Defendants, in their initial Brief, offer a less extreme alternative to
dismissal: “non-responding Opt-In Plaintiffs . . . should be dismissed from the
Conditional Class or in the alternative, given a definite time frame in which to furnish
verified responses, absent timely compliance with which they should be dropped from
the class.”12 In their Response Brief, the Plaintiffs do not dispute that a definite time
frame would be a fair remedy for non-responsive opt-in Plaintiffs.13
Welch v. Comcar Indus., 139 Fed. Appx. 138, 139 (11th Cir. 2005)
(quoting Fed.R.Civ.P. 37(b)(2)).
Shortz v. City of Tuskegee, Ala., 352 Fed. Appx. 355, 359 (11th Cir.
Wouters v. Martin Cnty., Fla., 9 F.3d 924, 933 (11th Cir. 1993)
Defs.’ Mot. to Amend Class, at 5 (emphasis added).
Pls.’ Br. in Resp. to Defs.’ Mot. to Amend Class, at 4-5 (“[T]he named
Plaintiffs and all opt-in Plaintiffs respectfully request that this Court deny Defendants’
motion to decertify the collective action, enter an order to show cause, and provide an
additional window of 60 days for the remaining opt-in Plaintiffs to respond to the
discovery requests and provide verifications.”).
In their Reply Brief, however, the Defendants argue – for the first time – that
dismissal with prejudice is necessary. They argue that the non-responsive opt-in
Plaintiffs willfully disregarded the discovery requests, and that a lesser sanction would
be “futile.” In support, the Defendants simply refer to the fact that these opt-in
Plaintiffs have thus far failed to respond. They submit no other evidence indicating
that this failure was willful, or that a firm deadline would be “futile.” Given that
dismissal “is the most severe Rule 37 sanction and is not favored,”14 the Court – at
least for now – will not dismiss these opt-in Plaintiffs from this action. The nonresponsive opt-in Plaintiffs will be given thirty (30) days from the entry of this Order
to respond to the Defendants’ discovery requests. Any opt-in Plaintiff that fails to
respond within this time frame, without good cause, will be dismissed from this
Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993).
The Defendants also argue in their Reply Brief – again, for the first time
– that they are entitled to attorneys’ fees in the event that the Court imposes a firm
deadline in lieu of dismissing the non-responsive opt-in Plaintiffs. However, “[p]arties
cannot raise new issues in reply briefs.” United States v. Krasnow, 484 Fed. Appx.
427, 429 (11th Cir. 2012); see also International Telecommunications Exch. Corp. v.
MCI Telecommunications Corp., 892 F. Supp. 1520, 1531 (N.D. Ga. 1995) (stating
that when a party raises new arguments in a Reply Brief, “the Court may either strike
the new grounds or permit the non-moving party additional time to respond to the new
argument.”). The Defendants could have made this request in their initial Brief, or
they can file a separate motion for attorneys’ fees to allow for proper briefing.
Because the Court will not grant attorneys’ fees in response to the Defendants’
B. Motion to Strike
In support of his Motion for Partial Summary Judgment filed on October 8,
2014,16 the Defendant James W. Lee, Sr. filed an affidavit in which he personally
described his official duties with the Pin Ups Nightclub. The Plaintiffs filed a Motion
to Strike Lee’s Affidavit, arguing that it contained inadmissible hearsay and assertions
that were not based on personal knowledge.17 Generally, “[a]n affidavit is not a
pleading subject to a motion to strike.”18 Rather than “striking a document or a portion
thereof, it is usually more appropriate to consider a party’s objections to affidavits .
. . when ruling on the merits.”19 Thus, instead of “strik[ing] the contested material, the
Court . . . exercised its discretion and disregarded any improper testimony in
improper request, the Plaintiffs’ uncontested Motion to Strike the Defendants’
Request for Attorneys’ Fees in their Reply Brief [Doc. 132] is moot.
Pls.’ Mot. to Strike, at 2.
Argonaut Midwest Ins. Co. v. McNeilus Truck & Mfg., Inc., No.
1:11-CV-3495-TWT, 2013 WL 489141, at *1 (N.D. Ga. Feb. 8, 2013).
Haynes v. Twin Cedars Youth & Family Servs., Inc., No. 5:10-CV-321
CAR, 2012 WL 895699, at *5 (M.D. Ga. Mar. 15, 2012) (internal quotation marks
considering the merits of Defendants’ motion.”20 Accordingly, the Plaintiffs’ Motion
to Strike Lee’s Affidavit is denied.
For these reasons, the Court DENIES the Defendants James W. Lee, Sr. and
The Great American Dream, Inc.’s Motion to Decertify or to Amend the Conditional
Class [Doc. 127], DENIES the Plaintiffs’ Motion to Strike the Affidavit of James W.
Lee, Sr. [Doc. 130], and DENIES as moot the Plaintiffs’ Motion to Strike the
Defendants’ Request for Attorneys’ Fees in their Reply Brief [Doc. 132]. The Opt-In
Plaintiffs that have thus far failed to provide verified discovery responses have thirty
(30) days from the entry of this Order to do so, or they will be dismissed from this
SO ORDERED, this 11 day of June, 2015.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
Belton v. Georgia, No. 1:10-CV-0583-RWS, 2013 WL 4216714, at *2
(N.D. Ga. Aug. 13, 2013).
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