Ezell et al v. Acosta Sales, LLC et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion for Plaintiffs to Show Cause or be Held in Contempt (ECF No. 83 ) is GRANTED. IT IS FURTHER ORDERED that Piercy's claims against Defendant Acosta, Inc., are DISMISSED without prejudice. Signed by District Judge Ronnie L. White on April 11, 2018. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MARGUERITE EZELL and SHERILYN
SILVER, on behalf of themselves and
all others similarly situated,
No. 4: 16CV870 RL W
MEMORANDUM AND ORDER
This matter is before the Court on Defendant's Motion for Plaintiffs to Show Cause or be
Held in Contempt. (ECF No. 83) On December 15, 2017, the Court issued a Memorandum and
Order granting Defendant's Motion to Compel, inter alia, the deposition testimony of opt-in
Plaintiff Shirley Ann Piercy ("Piercy") in St. Louis, Missouri. (ECF No. 74) However, counsel
for Plaintiffs did not produce Piercy for her deposition as ordered by the Court. On March 1,
2018, Defendant filed the present motion for Plaintiffs to show cause or be held in contempt.
Plaintiffs responded that the motion is "besmirching," "gratuitous," "nastiness," "substantively
frivolous," and "personally vindictive and offensive." (ECF No. 85) Plaintiffs state that Piercy's
husband is ill, thus rendering her unable to proceed with the deposition. What the response fails
to do, however, is offer an explanation why Piercy is, in fact, in contempt of an Order of this
At the Hearing for Conditional Class Certification, Plaintiffs' counsel casually mentioned
that the Defendant had not deposed Piercy. When asked about the pending motion for contempt,
however, counsel was unable to address the topic. Therefore, the Court asked the parties to
report as to the status of the motion. Plaintiffs respond that they have offered to pay reasonable
travel costs for Defendant to depose Piercy in Florida, or alternatively, they have offered to
produce Piercy for a deposition by videolink. According to Plaintiffs, Defendant rejected both
proposals. (ECF No. 99) Defendant reports that Piercy's noncompliance with the Court's Order
has prejudiced Defendant by depriving Defendant of its right to complete Piercy' s deposition and
causing Defendant to incur expenses. (ECF No. I 00) Specifically, Defendant asserts that
Piercy's violation of the Order deprived Defendant of testimony required for its opposition to the
motion for conditional certification. As the issue of conditional class certification has now been
fully briefed and orally argued, the Court finds that Piercy is in contempt, and an appropriate
sanction is dismissal from this action. Fed. R. Civ. P. 37(b); Schoffstall v. Henderson, 223 F.3d
818, 823 (8th Cir. 2000) (finding dismissal may be considered as a sanction upon parties who fail
to comply with discovery orders where "there is (1) an order compelling discovery, (2) a willful
violation of that order, and (3) prejudice to the other party"); Chicago Truck Drivers v. Bhd.
Labor Leasing, 207 F.3d 500, 504 (8th Cir. 2000) ("One of the overarching goals of a court's
contempt power is to ensure that litigants do not anoint themselves with the power to adjudge the
validity of orders to which they are subject.").
IT IS HEREBY ORDERED that Defendant's Motion for Plaintiffs to Show Cause or be
Held in Contempt (ECF No. 83) is GRANTED.
IT IS FURTHER ORDERED that Piercy's claims against Defendant Acosta, Inc., are
DISMISSED without prejudice.
Dated this 11th day of April, 2018.
UNITED ST ATES DISTRICT JUDGE
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