Butler et al v. Directsat USA, LLC et al

Filing 130

REPORT AND RECOMMENDATION re 112 MOTION for Sanctions filed by Unitek USA, LLC, Directsat USA, LLC, Unitek Global Services, Inc.; Objections to R&R due by 6/3/2013; Responses due by 6/3/2013. Signed by Magistrate Judge Jillyn K Schulze on 5/16/2013. (kns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JEFFRY BUTLER, et al.

*

v.

*

Civil No. DKC 10-2747

*
DIRECTSAT USA, LLC, et al.

*

                                                                                    **** 

REPORT AND RECOMMENDATION

This report addresses Defendants’ Motion for Sanctions, which was referred to me for

resolution pursuant to Section 636(b)(1)(A) of Title 28 of the United States Code. Defendants
argue that eight plaintiffs should be dismissed with prejudice for failing to participate in the
litigation. ECF Nos. 112, 115. Plaintiffs’ counsel concedes that despite his best efforts, these
eight opt-in Plaintiffs have not responded to multiple letters, phone calls and emails, and thus
have provided no discovery responses.1 ECF No. 114. Plaintiffs’ counsel requests that the
dismissal be without prejudice because their failure to respond could be justified by a reason
such as illness.
It is recommended that the Court dismiss these Plaintiffs with prejudice. Dismissal with
prejudice is appropriate under Federal Rule of Civil Procedure 41(b) when a plaintiff fails to
prosecute or comply with a court order and when there has been a “clear record of delay or
contumacious conduct by the plaintiff.” Diamond v. Bon Secours Hosp., CIV. WMN-09-865,
2010 WL 2696632 at *6 (D. Md. July 6, 2010) (citation and quotation marks omitted). These
eight Plaintiffs have failed to respond to the January 8, 2013 discovery order, ECF No. 111, for

1

The relevant Plaintiffs are Leroy Deon Smith, Sean M. Roeser, William Arthur Young, Jr., Kristian Matteo
Jefferson, Kent Fitzgerald Williams, Robert Woodrow Cross, Wayne Alexander Diorio and Edwin Lopez.

almost three months. No explanation has been provided to justify their inactivity, and no
expectation of future compliance is offered. The Court previously dismissed Plaintiff Charles
Dorsey with prejudice for a similar failure: “[h]is disappearance remains unexplained and he has
essentially abandoned this litigation.” ECF No. 94.2 For this same reason, Plaintiffs Leroy Deon
Smith, Sean M. Roeser, William Arthur Young, Jr., Kristian Matteo Jefferson, Kent Fitzgerald
Williams, Robert Woodrow Cross, Wayne Alexander Diorio and Edwin Lopez should also be
dismissed with prejudice. 
Date: May 16, 2013

/S/
JILLYN K. SCHULZE
United States Magistrate Judge

2

 The Court noted also that, because the opt-in period had expired, it was not clear what the practical difference was between
dismissing Mr. Dorsey with prejudice or without prejudice.