Marshall v. Louisiana State et al

Filing 164

ORDER: IT IS HEREBY ORDERED that Defendants' 118 Motion to Dismiss is GRANTED IN PART and DENIED IN PART as set forth in document. Signed by Judge Nannette Jolivette Brown on 1/10/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARSHALL

CIVIL ACTION

VERSUS

NO. 15-1128

LOUISIANA STATE, et al.

SECTION: “G”(2)

ORDER
Pending before the Court is Defendants Law Enforcement District for the Parish of Orleans
and Marlin N. Gusman’s “Motion to Dismiss.”1 Having considered the pending motion, the
memoranda in support and in opposition, the record, and the applicable law, the Court will grant
the motion in part and deny it in part.
I. Background
On April 9, 2015, Plaintiff Donald L. Marshall (“Plaintiff”) filed a putative class action
complaint against Sheriff Marlin N. Gusman, in his official capacity as Sheriff of Orleans Parish,
and the Law Enforcement District for the Parish of New Orleans (collectively, “Defendants”),
seeking unpaid wages and overtime under the Fair Labor Standards Act (“FLSA”).2 Marshall
alleges that, in the three years prior to filing his complaint, he worked for Defendants as a deputy
sheriff, and that he and other similarly situated individuals were not paid in compliance with the

1

Rec. Doc. 118.

2

Rec. Doc. 1 at 1. Marshall initially filed suit against the State of Louisiana as well, but the Court dismissed
the state as a defendant, on sovereign immunity grounds, on September 21, 2015. Rec. Doc. 17.

1

FLSA.3 Specifically, Plaintiff, on behalf of himself and others similarly situated, seeks wages and
overtime for time spent less than 30 minutes prior to his shift and for up to 30 minutes after his
shift for which he was not paid.4 On January 22, 2016, the Court conditionally certified the action
as a collective action pursuant to 29 U.S.C. § 216(b) and ordered that notice be sent to:
All individuals who worked for or are working for Defendants, Marlin N. Gusman,
in his official capacity as Sheriff of Orleans Parish, and the Law Enforcement
District for the Parish of Orleans, who are or were employed at any of the
following: Civil District Court; Criminal District Court; Municipal District Court;
the Temporary Detention Center; the Orleans Parish Prison; Templeman Phase V;
the Tents; and the Conchetta facility, performing the duties of a sheriff’s deputy,
and working on a tour of duty shift schedule, in the three years directly preceding
April 9, 2015, and who are or were eligible for overtime pursuant to the Fair Labor
Standards Act, 29 U.S.C. § 207, and who did not receive overtime pay or straight
time pay for hours actually worked.5
After notice was sent, ninety-nine individuals opted in to the action by filing a consent and
joinder with the Court.6 On August 1, 2016, Plaintiff sent out a discovery questionnaire to the optin plaintiffs.7 On November 4, 2016, Defendants filed a motion with the magistrate judge to compel
all of the opt-in plaintiffs to respond to the discovery questionnaire.8 On November 21, 2016, the
magistrate judge ordered that all opt-in plaintiffs who had not provided complete verified
questionnaire responses must do so no later than November 30, 2016.9 On December 12, 2016,
Defendants filed the instant motion to dismiss the claims of certain opt-in plaintiffs for whom no

3

Rec. Doc. 1 at 1.

4

See id. at 8.

5

Rec. Doc. 25 at 29.

6

See Rec. Docs. 31, 33–39, 43–47, 49, 58–59, 61–62.

7

See Rec. Doc. 70-2.

8

Rec. Doc. 98.

9

Rec. Doc. 106.

2

discovery questionnaire was completed.10 Plaintiff filed an opposition to the motion on December
27, 2016.11 With leave of Court, Defendants filed a reply on January 4, 2017.12
On January 10, 2017, the Court granted summary judgment as to the claims of seventeen
opt-in plaintiffs,13 eleven of whom are also listed in Defendants’ motion to dismiss as opt-in
plaintiffs who have not responded to the discovery questionnaire.14 Those eleven opt-in plaintiffs
are: Carylenna Grant, Corey Lewis, McRay Mottley, Robert Noland, Troylyn Washington, Kevin
Jones, Brandin Prevost, Harold Ramson, Ira Thomas, Ronald Ward, and Corey Payne.15
Additionally, the Court granted joint motions for voluntary dismissal without prejudice of
three of the opt-in plaintiffs listed in Defendants’ motion to dismiss as opt-in plaintiffs who have
not responded to the discovery questionnaire.16 Those three opt-in plaintiffs are: John F. Florent,
Jerrica Pierre, and Debra Jones.17 The Court also previously granted a motion for voluntary
dismissal without prejudice of one of the two opt-in plaintiffs listed in Defendants’ motion as optin plaintiffs who have submitted an incomplete or unverified discovery questionnaire.18 That optin plaintiff is George West.19

10

Rec. Doc. 118.

11

Rec. Doc. 137.

12

Rec. Doc. 157.

13

See Rec. Doc. 162 at 10–11.

14

See Rec. Doc. 118-1 at 3–4.

15

See Rec. Doc. 162 at 10–11.

16

See Rec. Docs. 128, 136, 163.

17

See id.

18

See Rec. Doc. 128.

19

See id.

3

In sum, the Court has granted summary judgment as to eleven opt-in plaintiffs listed in
Defendants’ instant motion to dismiss and has granted joint motions for voluntary dismissal
without prejudice as to four of the opt-in plaintiffs listed in the motion. Therefore, the Court has
already dispensed with the claims of 15 of the 53 opt-in plaintiffs listed in Defendants’ motion to
dismiss.20 Accordingly, the Court will address Defendants’ motion as to the claims of the
remaining 38 opt-in plaintiffs.21
II. Parties’ Arguments
A.

Defendants’ Arguments in Support of the Motion to Dismiss
In their motion, Defendants assert that they have not received questionnaire responses from

fifty-one opt-in plaintiffs and that they have received questionnaire responses that did not contain
a verification or were otherwise incomplete from two opt-in plaintiffs.22 Defendants argue that
dismissal of these opt-in plaintiffs’ claims with prejudice is warranted for their failure to comply
with the magistrate judge’s discovery order.23 Defendants aver that the Fifth Circuit has set forth
four factors to determine whether dismissal with prejudice is justified for failure to comply with a
discovery order24 and that each of the four factors weighs in favor of dismissal with prejudice of
the opt-in plaintiffs’ claims at issue.25

20

See Rec. Doc. 118-1 at 3–4.

21

The Court notes that Defendants list “Kenneth C. Tapp” as an opt-in plaintiff who has not returned a
completed discovery questionnaire. See Rec. Doc. 118-1 at 3. However, the Court can find no evidence in the record
of an individual by the name of Kenneth C. Tapp opting in to this collective action.
22

Rec. Doc. 118-1 at 3–4.

23

Id. at 5.

24

Id. at 4–5 (citing Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 514 (5th Cir. 1985)).

25

Id. at 5.

4

First, Defendants contend that the failure to return complete and verified questionnaire
responses is evidence of willfulness and/or bad faith.26 Second, Defendants argue that lesser
sanctions would not act as a deterrent or ensure questionnaires would be returned in a timely
fashion, as Plaintiff’s counsel has indicated that they have made repeated, unsuccessful attempts
to gather the missing responses.27 According to Defendants, courts frequently find that use of lesser
sanctions would not act as a deterrent in FLSA actions where the opt-in plaintiffs have not
responded to discovery requests.28 Third, Defendants argue that prejudice is automatically
presumed when plaintiffs fail to respond to the class-wide discovery.29 Moreover, Defendants
argue, they have in fact been prejudiced by the failure to return completed, verified
questionnaires.30 Defendants assert that they could have used the returned questionnaire responses
as supporting evidence for their motion to decertify31 and to ascertain which plaintiffs to depose.32
Fourth, Defendants argue that there is no evidence that the failure to return complete, verified
questionnaires is attributable to Plaintiff’s counsel or to confusion regarding the magistrate judge’s
discovery order.33 According to Defendants, the failure to complete the questionnaires is

26

Id. (citing Hernandez v. Starbucks Coffee Co., No 09-60073, 2011 WL 2729076, at *6 (S.D. Fla. June

22, 2011)).
27

Id. at 6.

28

Id. at 6–7.

29

Id. at 7 (citing Collozzi v. St. Joseph’s Hosp. Ctr., No. 5:08-1220, 2010 WL 3433997, at *4 (N.D.N.Y.
July 10, 2010).
30

Id.

31

Rec. Doc. 110.

32

Rec. Doc. 118 at 8 (citing In re Liquid Carbonic Truck Drivers Chem. Poisoning Litig. M.D.L. Docket
No. 252, 580 F.2d 819, 823 (5th Cir. 1978)).
33

Id.

5

attributable to the opt-in plaintiffs themselves, and dismissal is warranted under Federal Rules of
Civil Procedure 37 and 41.34
B.

Plaintiff’s Arguments in Opposition to the Motion to Dismiss
In opposition, Plaintiff argues that Defendants’ motion to dismiss is untimely pursuant to

the Court’s Scheduling Order.35 Although the Scheduling Order required all non-evidentiary
motions to be filed in time to permit hearing thereon no later than December 7, 2016,36 Plaintiff
asserts that Defendants did not file the instant motion until December 12, 2016, with a hearing date
set for January 4, 2017.37 Plaintiff further asserts that Defendants could have filed the motion to
dismiss prior to the discovery cutoff deadline of November 30, 2016, but elected not to do so.38
Thereafter, Plaintiff argues, if any opt-in plaintiffs subject to the magistrate judge’s discovery order
submitted a completed questionnaire after the filing of Defendants’ motion to dismiss, the motion
to dismiss would simply have been mooted as to those opt-in plaintiffs.39 Because Defendants did
not file the motion to dismiss in compliance with the Court’s Scheduling Order, however, Plaintiffs
argue that the motion should be denied as untimely.40

34

Id.

35

Rec. Doc. 137 at 4.

36

Id. (citing Rec. Doc. 66).

37

Id.

38

Id. at 5.

39

Id.

40

Id.

6

Next, Plaintiff contends that Defendants are not prejudiced by certain opt-in plaintiffs’
failure to respond to the discovery questionnaire.41 According to Plaintiff, Defendants are in
possession of, or should be in possession of, the information sought in the questionnaire.42 For this
reason, Plaintiff argues that the lack of discovery responses from certain opt-in plaintiffs did not
prejudice Defendants in their ability to seek decertification.43 Moreover, according to Plaintiff,
Defendants’ primary defense, that their lunch pay/auto deduct policy was a lawfully implemented
policy, turns on the application of law, not on the circumstances of the individual employees.44
Thus, Plaintiff argues, the lack of questionnaire responses did not prejudice Defendants in seeking
decertification and will not prejudice them in their ability to assert a defense to this action.45
C.

Defendants’ Reply in Further Support of the Motion to Dismiss
In their reply, Defendants argue that good cause exits for the untimely filing of their motion

to dismiss.46 In order to comply with the Court’s Scheduling Order, Defendants aver, they would
have had to file their motion to dismiss on November 22, 2016, in order to allow hearing thereon
no later than December 7, 2016.47 According to Defendants, the magistrate judge issued an order
requiring all opt-in plaintiffs who had not provided complete, verified questionnaire responses to
do so no later than November 30, 2016, eight days after the submission deadline for dispositive

41

Id. at 6.

42

Id.

43

Id. at 7.

44

Id.

45

Id.

46

Rec. Doc. 157 at 2.

47

Id. (citing Rec. Doc. 64).

7

motions.48 Defendants argue that their motion would have been premature if they had filed it by
November 22, 2016, because the opt-in plaintiffs who had not returned questionnaire responses
would not have been in violation of the magistrate judge’s order that they submit completed
questionnaires by November 30, 2016.49 Defendants argue that because “the timely filing of
Defendants’ motion was impractical given the circumstances,” good cause exists for the untimely
filing.50 Defendants further argue that Plaintiff did not suffer any prejudice as a result of the
untimely filing.51 Finally, Defendants contend that they have been prejudiced by the opt-in
plaintiffs’ failure to complete the questionnaire, because the questionnaire responses would
provide “critical information” regarding the sheriff’s deputies’ meal periods.52 Defendants argue
that, despite Plaintiff’s assertions to the contrary, they are not in possession of this information
about the deputies’ lunch break, which is important to the case.53
III. Law and Analysis
A.

Legal Standard
Pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), where an action is pending a court

may, on motion, order sanctions if a “party . . . fails to obey an order to provide or permit discovery
. . . .” Rule 37(b)(2)(A) also sets forth the types of sanctions a court may impose.54 Possible

48

Id. (citing Rec. Doc. 106).

49

Id. at 2–3.

50

Id. at 3.

51

Id.

52

Id.

53

Id. at 4.

54

Fed. R. Civ. P. 37(b)(2)(A)(i)–(vii).

8

sanctions are listed in Rule 37(b)(2)(A)(i)-(vii) and include, among other options, dismissing the
action or proceeding in whole or in part.55 Pursuant to Rule 41(b), “if the plaintiff fails to prosecute
or comply with [the Federal Rules of Civil Procedure] or a court order, a defendant may move to
dismiss the action or any claim against it.”56
“Because of the severity of [the] sanction, dismissal with prejudice typically is appropriate
only if the refusal to comply with a discovery order results from willfulness or bad faith and is
accompanied by a clear record of delay or contumacious conduct.”57 A clear record of delay is
found where there have been “significant periods of total inactivity.”58 Dismissal with prejudice is
a “draconian remedy, which the district court should impose only as a matter of last resport.”59
Thus, in addition to willfulness and a clear record of delay, several factors must be present before
a district court may dismiss a case with prejudice as a sanction for violating a discovery order: (1)
the violation of the discovery order must attributable to the client instead of the attorney; (2) the
violating party’s misconduct must substantially prejudice the opposing party; and (3) a less drastic
sanction would not substantially achieve the desired deterrent effect.60
Dismissal of a plaintiff’s action with prejudice is “reserved exclusively for clear records of
contumacious and continuing discovery misconduct or delay, ordinarily involving failure to

55

Fed. R. Civ. P. 37(b)(2)(A)(v).

56

Fed. R. Civ. P. 41(b); see also McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988).

57

Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1032 (5th Cir. 1990).

58
Berry v. CIGNA/RSI CIGNA, 975 F.2d 1188, 1191 n.5 (5th Cir. 1992) (citing Morris v. Ocean Sys., Inc.,
730 F.2d 248, 252 (5th Cir. 1984)).
59

Doe v. Am. Airlines, 283 F. App’x 289, 291 (5th Cir. 2008) (citing FDIC v. Conner, 20 F.3d 1376, 1380
(5th Cir. 1994) (quoting Batson v. Neal Spelce Assoc., Inc., 765 F.2d 511, 515 (5th Cir. 1985)).
60
Id. (citing FDIC v. Conner, 20 F.3d 1376, 1380 (5th Cir. 1994) (quoting Coane v. Ferrara Pan Candy
Co., 898 F.2d 1030, 1032 (5th Cir. 1990)).

9

comply with multiple court orders.”61 “[I]t is not a party’s negligence—regardless of how careless,
inconsiderate, or understandably exasperating—that makes conduct contumacious; instead it is the
stubborn resistance to authority which justifies a dismissal with prejudice” of a claim or affirmative
defense.62 Dismissal with prejudice “is a severe sanction that deprives a litigant of the opportunity
to pursue his claim.”63 It is an appropriate sanction, therefore, only where the misconduct is
egregious and where “lesser sanctions would not serve the best interests of justice.”64
B.

Analysis
It is undisputed that Defendants filed the instant motion to dismiss on December 12, 2016,

after the November 22, 2016 deadline for non-evidentiary motions set forth in the Court’s
Scheduling Order.65 However, Defendants argue that good cause exists for the untimely filing,66
because the magistrate judge issued an order on November 21, 2016, requiring all opt-in plaintiffs
“who had not provided complete verified questionnaire responses” to do so by November 30,
2016.67 Given the magistrate judge’s order, Defendants maintain that it would have been premature

61

Bombardier v. State Farm Fire and Cas. Co., No. 16-568, 2016 WL 4799098, at *2 (E.D. La. Sept. 14,
2016) (Wilkinson, Mag.) (citing Doe v. Am. Airlines, 283 F. App’x 289, 291 (5th Cir. 2008); Davis v. Auto Club
Family Ins. Co.; No. 07-8545, 2008 WL 5110619, at *1 (E.D. La Dec. 2, 2008) (Vance, J.) (citing FDIC v. Conner,
20 F.3d 1376, 1380 (5th Cir. 1994); quoting Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 515 (5th Cir. 1985);
EEOC v. Gen. Dynamics Corp., 999 F.2d 113, 119 (5th Cir. 1993)).
62

Brown v. Oil States Skagit Smatco, 664 F.3d 71, 77 (5th Cir. 2011) (quoting McNeal v. Papasan, 842 F.2d
787, 792 (5th Cir. 1988)).
63

Id.

64

Id.

65

See Rec. Doc. 137 at 4; Rec. Doc. 157 at 2.

66

Rec. Doc. 157 at 2.

67

See Rec. Doc. 106.

10

to file a motion to dismiss by the deadline set forth in the Court’s Scheduling Order.68 Federal
district courts have the inherent power to enforce their scheduling orders,69 and Federal Rule of
Civil Procedure 16(b) provides that a scheduling order “may be modified only for good cause and
with the judge’s consent.”70 The Court finds that good cause exists for the delayed filing of
Defendants’ motion and will therefore consider the motion on the merits.
Here, it is undisputed that the list in Defendants’ motion, of opt-in plaintiffs who have not
completed the discovery questionnaire is accurate.71 Defendants argue that these opt-in plaintiffs’
claims should be dismissed with prejudice for failure to obey a discovery order pursuant to Federal
Rule of Civil Procedure 37(b)(2)72 or for failure to prosecute or comply with a court order under
Federal Rule of Civil Procedure 41(b).73 Defendants argue that the opt-in plaintiffs’ failure to
respond is prejudicial, because it deprives them of critical information necessary to defend against
the case, including discovery related to their motion to decertify and their selection of which optin plaintiffs to depose.74 Plaintiff responds that Defendants were not prejudiced by the opt-in
plaintiffs’ failure to respond to the discovery questionnaires, because much of the information
sought by Defendants in the questionnaires is already in Defendants’ possession and Defendants’

68

See Rec. Doc. 157 at 2–3.

69

See Flaska v. Little River Marine Const. Co., 389 F.2d 885, 886 & n.3 (5th Cir. 1968) (citing Link v.
Wabash R. Co., 370 U.S. 626, 630 (1962)).
70

Fed. R. Civ. P. 16(b)(4).

71
See Rec. Doc. 137 at 2 (Plaintiff conceding that “[t]he list provided by Defendants on pg. 3 of their
Motion to Dismiss is an accurate list of those opt-in plaintiffs who have not returned their completed discovery
questionnaires.”).
72

Rec. Doc. 118 at 1.

73

Id.

74

Rec. Doc. 118-1 at 8.

11

primary defense to the action turns on application of the law, not on the circumstances of individual
employees.75
Dismissal of a plaintiff’s action with prejudice is a “remedy of last resort”76 and is reserved
for situations where there is a clear record of contumacious and continuing discovery misconduct
or delay, ordinarily involving failure to comply with multiple court orders.77 Here, the parties
agreed to utilize a discovery questionnaire in lieu of traditional discovery methods.78 Moreover, it
is undisputed that Defendants have not received questionnaire responses from the opt-in plaintiffs
listed in Defendants’ motion in violation of the magistrate judge’s discovery order.79
As an initial matter, the Court notes that Defendants seek dismissal with prejudice of optin plaintiff Sybil A. Thomas (“Thomas”), because “the signature for Ms. Thomas’ verification [of
the discovery questionnaire] does not appear to be Ms. Thomas’.”80 However, Defendants do not
attach Thomas’ discovery questionnaire to their motion, and it does not appear in the record.
Therefore, the Court is unable to ascertain whether Thomas did in fact fail to comply with the
magistrate judge’s discovery order and will deny dismissal as to Thomas’ claim.81

75

Rec. Doc. 137 at 7.

76

Doe v. Am. Airlines, 283 Fed. App’x 289, 291 (5th Cir. 2008) (citing FDIC v. Conner, 20 F.3d 1376,
1380 (5th Cir. 1994) (quoting Batson v. Neal Spelce Assoc., Inc., 765 F.2d 511, 515 (5th Cir. 1985).
77

See Bombardier v. State Farm Fire and Cas. Co., No. 16-568, 2016 WL 4799098, at *2 (E.D. La. Sept.
14, 2016) (Wilkinson, Mag.) (citing Doe v. Am. Airlines, 283 F. App’x 289, 291 (5th Cir. 2008); Davis v. Auto Club
Family Ins. Co.; No. 07-8545, 2008 WL 5110619, at *1 (E.D. La Dec. 2, 2008) (Vance, J.) (citing FDIC v. Conner,
20 F.3d 1376, 1380 (5th Cir. 1994); quoting Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 515 (5th Cir. 1985);
EEOC v. Gen. Dynamics Corp., 999 F.2d 113, 119 (5th Cir. 1993)).
78

See Rec. Doc. 118-1 at 2; Rec. Doc. 137 at 2.

79

See Rec. Doc. 118-1 at 3; Rec. Doc. 137 at 2.

80

Rec. Doc. 118-1 at 4 n.7.

81

See Bombardier v. State Farm Fire and Cas. Co., No. 16-568, 2016 WL 4799098, at *2 (E.D. La. Sept.
14, 2016) (Wilkinson, Mag.) (sanction of dismissal with prejudice reserved for “reserved exclusively for clear

12

As to the remaining opt-in plaintiffs who the parties agree have not returned discovery
questionnaires, the Court notes that the failure of these opt-in plaintiffs to respond to the discovery
questionnaire prevents the Court from accurately determining whether they are similarly situated
such that they could proceed collectively in this action.82 However, the Court finds that Defendants
have not demonstrated willful disobedience of a court order by the opt-in plaintiffs “accompanied
by a clear record of delay or contumacious conduct”83 such that the “draconian remedy”84 of
dismissal with prejudice would be warranted.85
Because dismissal with prejudice “is a severe sanction that deprives a litigant of the
opportunity to pursue his claim,” it is an appropriate sanction only where the misconduct is
egregious and where “lesser sanctions would not serve the best interests of justice.”86 The Court
finds that dismissal without prejudice would serve the best interests of justice.87 Thus, the claims
of the remaining non-responding opt-in plaintiffs will be dismissed without prejudice.

records of contumacious and continuing discovery misconduct or delay”) (internal citations omitted).
82

See Arnold v. DirecTV, Inc., No. 4:10-00352, 2014 WL 3611842, at *1 (E.D. Mo. July 14, 2014).

83

Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1032 (5th Cir. 1990).

84

Doe, 283 F. App’x at 291 (citing FDIC v. Conner, 20 F.3d 1376, 1380 (5th Cir. 1994) (quoting Batson v.
Neal Spelce Assoc., Inc., 765 F.2d 511, 515 (5th Cir. 1985)).
85

See Arnold, 2014 WL 3611842, at *1 (denying defendants’ motion to dismiss with prejudice the claims
of opt-in plaintiffs in a FLSA collective action who had failed to respond to discovery questionnaires in violation of
the trial court’s order).
86

Brown v. Oil States Skagit Smatco, 664 F.3d 71, 77 (5th Cir. 2011).

87

Accord Arnold, 2014 WL 3611842, at *1–2. Cf. Perrin v. Papa John’s Intern., Inc., No. 09-01335, 2014
WL 4749547, at *3 (E.D. Mo. Sept. 24, 2014) (denying defendants’ motion for dismissal with prejudice of opt-in
plaintiffs in collective FLSA action where parties had agreed that defendants could seek discovery through discovery
questionnaire).

13

IV. Conclusion
Plaintiff does not dispute that the opt-in plaintiffs listed in Defendants’ motion have failed
to return questionnaire responses to Defendants in violation of the magistrate judge’s discovery
order.88 The Court notes that it has granted joint motions for voluntary dismissal as to opt-in
plaintiffs John F. Florent,89 Jerrica Pierre,90 George West,91 and Debra Jones.92 Moreover, the
Court has granted summary judgment as to the claims of the following eleven opt-in plaintiffs
listed in Defendants’ motion to dismiss: Carylenna Grant, Corey Lewis, McRay Mottley, Robert
Noland, Troylyn Washington, Kevin Jones, Brandin Prevost, Harold Ramson, Ira Thomas, Ronald
Ward, and Corey Payne.93 The Court cannot determine on the record before it whether opt-in
plaintiff Sybil A. Thomas’ discovery questionnaire was properly verified and will therefore deny
Defendants’ request for dismissal of her claim.94 As to the remaining opt-in plaintiffs who have
failed to respond to the discovery questionnaire, the Court finds that dismissal without prejudice
would serve the best interests of justice.95
Accordingly,

88

See Rec. Doc. 118-1 at 3; Rec. Doc. 137 at 2.

89

Rec. Doc. 136.

90

Rec. Doc. 128.

91

Id.

92

Rec. Doc. 163.

93

See Rec. Doc. 162.

94

See id. at 4.

95

Accord Arnold, 2014 WL 3611842, at *1–2. Cf. Perrin v. Papa John’s Intern., Inc., No. 09-01335, 2014
WL 4749547, at *3 (E.D. Mo. Sept. 24, 2014) (denying defendants’ motion for dismissal with prejudice of opt-in
plaintiffs in collective FLSA action where parties had agreed that defendants could seek discovery through discovery
questionnaire).

14

IT IS HEREBY ORDERED that Defendants’ “Motion to Dismiss”96 is GRANTED IN
PART and DENIED IN PART.
IT IS FURTHER ORDERED that the motion is granted in part to the extent that the
Court will dismiss without prejudice the claims of the following opt-in plaintiffs: Donald Allen,
Trenise A. Barnes, Jermaine Bias, Cynthia Carter, Kenya Christian, Darlena Cole, Juane Davis,
David J. DeBlanc, Robin M. Honore, Kermit P. Williams, Sidney R. Dorsey, James L. Fried,
Gerard D. Golden, Toccara T. Gorman, Damon J. Lewis, Dianne Luckett, Stevie McGill, Sharon
M. Miller, Shelia Mossop, Nichole Holmes,97 Erica Jeanpierre, Troyann Jefferson, Cynthia
Jemison, Cortina Johnson, Debra A. Jones, Felicia Jones, Annette Lawson, Glenn Powell, Bobby
E. Randle, Melvin Sparks, Thilero Tapp, Jerry Thomas, Norma Rae Thomas, Verkeicher Thomas,
Don Wallace, Dwayne Washington, and Sheba House.
IT IS FURTHER ORDERED that the motion is denied in part to the extent that
Defendants seek dismissal with prejudice of the opt-in plaintiffs who have not completed the
discovery questionnaire and who were not dismissed with prejudice for other reasons.
IT IS FURTHER ORDERED that the motion is denied in part to the extent that
Defendants seek to dismiss the claim of opt-in plaintiff Sybil A. Thomas for the alleged failure to
include a verification in her discovery questionnaire.

96

Rec. Doc. 118.

97
Defendants listed this opt-in plaintiff as “Nichole Holes,” but the record indicates that the opt-in
plaintiff’s name is actually “Nichole Holmes.” See Rec. Doc. 44.

15

IT IS FURTHER ORDERED that the motion is denied in part as moot as to the claims
of opt-in plaintiffs John F. Florent, Jerrica Pierre, George West, and Debra Jones, because the
Court has already granted joint motions for voluntary dismissal of their claims without prejudice.98
IT IS FURTHER ORDERED that the motion is denied in part as moot as to the claims
of Carylenna Grant, Corey Lewis, McRay Mottley, Robert Noland, Troylyn Washington, Kevin
Jones, Brandin Prevost, Harold Ramson, Ira Thomas, Ronald Ward, and Corey Payne, because the
Court has already granted summary judgment as to their claims.99
NEW ORLEANS, LOUISIANA, this10th day of January, 2017.
____

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

98

See Rec. Doc. 136; Rec. Doc. 128, Rec. Doc. 163.

99

See Rec. Doc. 162.

16