Butler et al v. Directsat USA, LLC et al

Filing 190

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 12/16/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JEFFRY BUTLER, ET AL.
:
v.

:

Civil Action No. DKC 10-2747

:
DIRECTSAT USA, LLC, ET AL.
:
MEMORANDUM OPINION
Presently

pending

in

this

Fair

Labor

Standards

Act

collective action case are five motions for sanctions filed by
Defendants based on Plaintiffs’ failure to comply with discovery
orders.

(ECF Nos. 135, 159, 165, 166, and 167).

have not filed responses to any of these motions.1

Plaintiffs
The motions

will be granted.
First, on January 8, 2013, and then on May 16, 2013, this
court issued orders to Plaintiffs to fulfill their discovery
obligations.

(ECF Nos. 111 and 129).

Eight opt-in plaintiffs

continue to disregard these orders and have not produced all
ordered discovery documents: Luis Aviles, Gary Baker, Michael

1

In the case of Defendants’ June 12, 2013 motion (ECF No.
135), Plaintiffs have indicated separately that they do not
oppose this motion.
(See ECF No. 154, at 5-6, Trans. 5:23 –
6:8).

Brown,

Christopher

Scott,

Jarrel

Simmons,

Joseph

Stefanic,

Santae Tribble, Jr., and Michael Willett.2
Defendants move for sanctions pursuant to Federal Rule of
Civil Procedure 37(b)(2)(A).

(ECF No. 135).

That rule permits

a district court to impose certain punitive measures, up to and
including

dismissal,

on

any

party

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

who

disobeys

a

discovery

“Rule 37(b)(2) gives the court

a broad discretion to make whatever disposition is just in the
light of the facts of the particular case.”

8B Charles Alan

Wright, et al., Federal Practice & Procedure § 2289 (3d ed.
2010); see also Camper v. Home Quality Mgmt. Inc., 200 F.R.D.
516, 518 (D.Md. 2000) (“Federal district courts possess great
discretion to sanction parties for failure to obey discovery
orders.”).
Defendants specifically ask the court to impose “the most
severe in the spectrum of sanctions,” dismissal.

Nat’l Hockey

League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976).
But “[w]hile the imposition of sanctions under Rule 37(b) lies
within the trial court’s discretion, it is not a discretion
without bounds or limits.”
Corp.,

53

brackets

F.3d

36,

omitted).

40

Hathcock v. Navistar Int’l Transp.

(4th

This

Cir.

is

1995)

(quotation

particularly

2

so

when

Defendants
originally
included
opt-in
Christopher Adams, but later withdrew this request.
138, at 2 n.2).
2

marks
a

and

party

plaintiff
(ECF No.

requests the severe penalty of dismissal.

Id.

Thus, a district

court should consider four factors in determining what sanctions
to impose under Rule 37: “(1) whether the noncomplying party
acted

in

bad

faith;

(2)

the

amount

of

prejudice

that

noncompliance caused the adversary; (3) the need for deterrence
of the particular sort of non-compliance; and (4) whether less
drastic

sanctions

would

have

been

effective.”

Belk

v.

Charlotte–Mecklenburg Bd. of Educ., 269 F.3d 305, 348 (4th Cir.
2001) (quotation marks omitted).

The United States Court of

Appeals for the Fourth Circuit has emphasized the importance of
warning

a

sanction.

party

before

dismissing

its

claim

as

a

discovery

See Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d

36, 40 (4th Cir. 1995) (noting “the significance of warning a
defendant about the possibility of default before entering such
a harsh sanction.”).
A party’s total failure to comply with the mandates of
discovery, with no explanation for that failure, can certainly
justify this harshest of sanctions.

See, e.g., Warren v. United

States, No. DKC 10-3015, 2011 WL 3608189, at *2-3 (D.Md. Aug.
15, 2011); CoStar Realty Info., Inc. v. Field, 737 F.Supp.2d
496, 502 (D.Md. 2010).
depositions

are

Interrogatories, document requests, and

important

elements

of

discovery;

a

defendant

would be hard-pressed to conduct its case without them.

When a

plaintiff refuses to respond to such requests, it can have a
3

debilitating effect on the rest of the litigation.

“If a party

served with interrogatories fails to answer them on time, or at
all, . . . such action can have a spiraling effect on the future
scheduling

of

discovery,

and

inject

into

the

litigation

collateral disputes which typically require the intervention of
the court to resolve.”

Jayne H. Lee, Inc. v. Flagstaff Indus.

Corp., 173 F.R.D. 651, 653 (D.Md. 1997).

Likewise, a failure to

respond to a request for production of documents “frequently
derails the discovery process, because parties often wait to
schedule

depositions

occurred.”

until

after

document

production

has

Id. at 655.

Dismissal is appropriate for these eight opt-in Plaintiffs.
Over the course of many months, these opt-in plaintiffs have
been

ordered

multiple

times

to

fulfill

obligations and have failed to do so.

their

discovery

Plaintiffs’ attorneys

have provided no explanation for these failures nor opposed the
sanctions sought. Defendants’ motion will be granted and the
opt-in plaintiffs will be dismissed with prejudice pursuant to
Rule

41(b)

for

failure

to

prosecute

or

comply

with

a

court

order.
Opt-in

Plaintiff

Art

Vincent

joined

filing a consent form on May 25, 2012.

this

litigation

(ECF No. 75-1).

by

In an

email dated September 30, 2013, Plaintiffs’ counsel indicated
that Mr. Vincent had withdrawn from the lawsuit.
4

(ECF No. 159-

1).

Defendants request Mr. Vincent be dismissed with prejudice,

which they represent is unopposed by Plaintiffs.
have

not

filed

Defendants’

an

motion

opposition
will

be

to

this

granted

motion.

and

Mr.

Plaintiffs
Accordingly,

Vincent

will

be

dismissed with prejudice.
Opt-in

Plaintiffs

Philip

Starkey,

Maurice

Payne,

Sharee

Stephens joined this litigation by filing a consent form on May
11, 2012, June 1, 2012, and June 29, 2012, respectively.
Nos. 72-1, 78-1, 86-1).
2013,

Magistrate

Judge

(ECF

In a paperless order dated August 12,
Jillyn

K.

Schulze

denied

Plaintiff’s

request to limit depositions and permitted Defendant to take a
deposition of each opt-in Plaintiff, limited to one hour each,
to be completed by November 15, 2013.
deadline
December

for
30,

fact
2013.

discovery
(ECF

was

No.

177).

(ECF No. 153).

subsequently
On

The

extended

September

3,

to

2013,

Plaintiffs’ counsel informed their counterparts that Mr. Payne
would appear for a deposition on September 30, 2013 at 8:00 am
and Ms. Stephens would appear on September 30, 2013 at 2:00 pm.
(ECF No. 165-1, 166-2).

Defendants’ counsel issued a notice of

these depositions to Plaintiffs’ counsel the next day.
Nos. 165-2 and 166-2).

(ECF

When the appointed hour came, neither

Mr. Payne nor Ms. Stephens appeared for their depositions.
ECF Nos. 165-4, 166-3).

5

(See

As for Mr. Starkey, Plaintiffs’ counsel did not list him
among their list of depositions’ times on September 3, 2013.
The next day, Defendants’ counsel responded by requesting that
Plaintiffs’ counsel inform them by the end of the week as to
when and where Mr. Starkey will be available.

(ECF No. 167-2).

Plaintiffs’ counsel did not respond, a fact noted by Defendants’
counsel in an email dated September 7, 2013.

On September 16,

2013, Defendants had still not received word on the date and
time

of

Mr.

Starkey’s

deposition,

counsel another request.

and

they

(ECF No. 167-4).

sent

Plaintiffs’

Plaintiffs’ counsel

responded the next day, stating that they were “still working
on” Mr. Starkey.

(ECF No. 167-5).

On September 18, 2013,

Defendants’ counsel wrote that if they are not given a date and
time for Mr. Starkey by the end of the week they will send a
final deposition notice for him to appear in Silver Spring,
Maryland on a date when they were already taking depositions.
(ECF No. 167-6).

Two days later, after not hearing anything,

Defendants

a

issued

deposition

October 4, 2013 at 3:30 pm.
failed

to

appear

for

his

notice

for

Mr.

(ECF No. 167-8).
deposition.

At

the

Starkey

for

Mr. Starkey
deposition,

Plaintiffs’ counsel indicated that they had been in contact with
Mr. Starkey about scheduling but they had not heard back from
him on possible dates.

(ECF No. 167-11).

6

Defendants move to dismiss with prejudice opt-in Plaintiffs
Starkey,

Payne,

discovery
Judge

and

obligations

Schultze

Stephens
by

provided

not

for

failure

appearing

Defendants

the

each opt-in Plaintiff for one hour.
failed to cooperate.

at

to

fulfill

their

their

depositions.

opportunity

to

depose

These three Plaintiffs

Plaintiffs have provided no explanation

for the absences and have not filed oppositions to Defendants’
motions.

This is not the first instance of one or more opt-in

Plaintiffs failing to participate in discovery and Plaintiffs
have

been

dismissal.

put

on

notice

that

such

failures

could

result

in

Accordingly, opt-in Plaintiffs Starkey, Payne, and

Stephens will be dismissed with prejudice.

/s/
DEBORAH K. CHASANOW
United States District Judge

7