Lewis v. Cosmopolitan Hotels & Resorts Inc.

Filing 96

ORDER Granting Defendant Nevada Property 1, LLC's 77 MOTION for Order to Show Cause. Signed by Magistrate Judge George Foley, Jr on 3/4/2014. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DARLENE LEWIS, on behalf of herself and
all others similarly situated,
Plaintiff,

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vs.
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NEVADA PROPERTY 1, LLC, d/b/a the
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Cosmopolitan of Las Vegas; and DOES 1
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through 50, inclusive,
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Defendant.
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__________________________________________)

Case No.: 2:12-cv-01564-MMD-GWF
ORDER

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This matter is before the Court on Defendant Nevada Property 1, LLC’s Motion for Order to

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Show Cause Why Certain Plaintiffs Should not be Dismissed With Prejudice (#77), filed on January

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28, 2014. Plaintiff Darlene Lewis, on behalf of herself and all others similarly situated filed a

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Response to Defendant’s Motion (#87) on February 11, 2014. Defendant filed its Reply (#90) on

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February 21, 2014. The Court conducted a hearing in this matter on March 3, 2014.

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BACKGROUND AND DISCUSSION
Plaintiff Darlene Lewis filed her Collective and Class Action Complaint (#1) in this case on

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August 31, 2012. Plaintiff seeks to certify a collective action “opt-in” class of similarly situated

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employees pursuant to 29 U.S.C. § 216(b) and to also certify this case as a class action pursuant to

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Rule 23 of the Federal Rules of Civil Procedure. The Court conditionally certified an “opt-in” class

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under § 216(b) on January 22, 2013. Order (#30). Several hundred employees have executed

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consents to join the lawsuit and become “opt-in plaintiffs.” Plaintiff has not yet filed a motion to

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certify this case as a class action pursuant to Rule 23.

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Pursuant to Phase One discovery, the purpose of which was to gather evidence concerning
the extent to which plaintiffs are similarly situated, Defendant noticed the depositions of thirty-four

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opt-in plaintiffs. Prior to proceeding with the depositions, Defendant coordinated with Plaintiff’s

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counsel to re-schedule depositions for those opt-in plaintiffs who alerted counsel that they were

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unavailable to attend the depositions as originally noticed. Ultimately, only twelve opt-in plaintiffs

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appeared for their depositions. The parties agreed to reschedule the depositions of the twenty-two

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opt-in plaintiffs who did not appear for their depositions. Only four of the opt-in plaintiff’s

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appeared for the second round of re-scheduled depositions, leaving eighteen opt-in plaintiffs who

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have failed to appear for both of their noticed depositions. Three of these opt-in plaintiffs have

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notified Plaintiff’s counsel of their request to be dismissed from this action.

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Pursuant to Rule 37(d) of the Federal Rules of Civil Procedure, Defendant requests that the

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eighteen opt-in plaintiffs be required to show cause why their claims should not be dismissed, with

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prejudice, for their failure to appear for their depositions. If the opt-in plaintiffs fail to show good

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cause, then Defendant requests that their claims be dismissed with prejudice. This includes barring

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the opt-in plaintiffs from participating as members of Rule 23 class, if a class action is hereafter

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certified. Defendant also requests an award of reasonable expenses, including attorney’s fees

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caused by the opt-in plaintiffs’ failures to appear for their depositions.

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Plaintiff’s counsel does not oppose dismissal of the opt-in plaintiffs from the FLSA portion

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of the lawsuit, but argues that they should not be barred from participating as class members in a

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Rule 23 class action if one is certified. Plaintiff’s counsel also opposes Defendant’s request that the

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opt-in plaintiffs be ordered to pay Defendant’s costs and attorney’s fees resulting from their failures

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to appear for their depositions.

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Courts have dismissed, with prejudice, the FLSA and class action claims of opt-in plaintiffs

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who have failed to comply with court orders requiring them to appear for depositions or respond to

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discovery. See e.g. Brennan v. Qwest Communications Intern., Inc., 2009 WL 1586721 (D.Minn.

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2009). Rule 37(d)(1)(A)(i) provides that the court may, on motion, order sanctions if a party fails,

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after being served with proper notice, to appear for that person’s deposition. Unlike other discovery

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matters governed by Rule 37(b), no court order directing a party to appear for his or her deposition

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is required before sanctions may be imposed. Defendant, however, does not seek dismissal of the

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claims of the eighteen opt-in plaintiffs without the Court first ordering them to appear for their
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depositions and notifying them that their claims will be dismissed if they fail to do so.
Because the sanction of dismissal is such a harsh penalty, the district court must weigh five

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factors before imposing this sanction: (1) the public’s interest in expeditious resolution of litigation;

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(2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions;

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(4) the public policy favoring disposition of cases on their merits; and (5) the availability of less

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drastic sanctions. In order for the sanction of dismissal to be appropriate, the sanctioned party’s

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conduct must be due to willfulness, fault or bad faith. Disobedient conduct not shown to be outside

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the control of the litigant is all that is required to demonstrate willfulness, bad faith or fault. Henry

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v. Gill Industries, 983 F.2d 943, 948 (9th Cir. 1993). It is not always necessary for the court to

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explicitly warn the party of the dismissal sanction. Valley Engineers Inc. v. Electric Engineering

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Company, 158 F.3d 1051, 1057 (9th Cir. 1998). An order warning the party that his claim will be

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dismissed if he fails to comply with the court’s discovery order, however, negates any legitimate

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claim by the party that he did not understand either his duty to comply with the discovery request or

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the serious consequences that would result from the failure to do so.

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Although the opt-in plaintiffs became parties to this action upon the filing of their consents,

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in all likelihood they do not have the same level of attorney-client relationship or communication

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with Plaintiff’s counsel that the representative plaintiff, Ms. Lewis, does. Some, if not all, of the

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eighteen opt-in plaintiffs may have decided not to appear for their depositions because they

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concluded that the anticipated recovery in this case does not justify the burden of actively

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participating in the action and appearing for deposition. While it is appropriate to dismiss the

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claims of such plaintiffs if they fail to comply with an order to appear for their depositions, the

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Court does not believe the imposition of attorney’s fees or costs against them is just, unless they

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actually agree to appear for a scheduled deposition, but then fail to appear. Accordingly,

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IT IS HEREBY ORDERED that Defendant Nevada Property 1, LLC’s Motion for Order to
Show Cause (#77) is granted as follows:
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Each of the eighteen (18) opt-in plaintiffs whose depositions were previously noticed

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by Defendant and who failed to appear for his or her deposition is hereby ordered to appear for

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deposition at a date, time and place to be noticed by Defendant.
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The failure of an opt-in plaintiff to appear for his or her rescheduled deposition in

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compliance with this order will result in a recommendation that the claims of that opt-in plaintiff,

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including any claim or right to participate as a member of a class that is hereafter certified pursuant

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to Rule 23 of the Federal Rules of Civil Procedure, be dismissed, with prejudice.

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Plaintiff’s counsel shall mail a copy of this order and the notice of the rescheduled

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deposition to each of the opt-in plaintiffs who previously failed to appear for his or her deposition.

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Plaintiff’s counsel should also notify the opt-in plaintiffs, in writing, in accordance with this order,

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that the opt-in plaintiff is required to appear for deposition if he or she wishes to continue to

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participate as a plaintiff in this action and that their claims will be dismissed, with prejudice, if they

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fail to do so.
DATED this 4th day of March, 2014.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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