CARR

Filing 129

ORDERED that Ps' # 105 Motion for an Order Dismissing, Without Prejudice, Roxanne Clayton as a Plaintiff is GRANTED. FURTHER ORDERED that P's # 105 Motion for an Order Quashing Ds' Document Request is DENIED. Signed by Judge Edward C. Reed, Jr on 2/22/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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7 CHRISTOPHER CARR, ROXANNE CLAYTON,
and BRIAN BENNETT,
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Plaintiffs,
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vs.
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INTERNATIONAL GAME TECHNOLOGY, et
11 al.,
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Defendants.
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RANDOLPH K. JORDAN and KIMBERLY J. )
JORDAN,
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Plaintiffs,
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vs.
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INTERNATIONAL GAME TECHNOLOGY, et )
al.,
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Defendants.
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3:09-cv-00584-ECR-WGC
(Base Case)

Order

3:09-cv-00585-ECR-WGC
(Member Case)

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Plaintiffs

are

former

employee

participants

in

Defendant

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International

Game

Technology’s

(“IGT”)

profit-sharing

plan

(the

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“Plan”) who have brought a class action suit pursuant to Federal Rule
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of Civil Procedure (“FRCP”) 23 to allege breach of fiduciary duty
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claims under Section 502(a) of the Employee Retirement Income Security
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Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(2).
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Now pending before the

1 Court is Plaintiff’s Motion to Dismiss and Quash Document Request
2 (#105).

The motion is ripe, and we now rule on it.

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I. Background

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As the parties are familiar with the factual and procedural

6 background of the case up to this point, we need only reiterate the
7 following relevant background.
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Plaintiffs filed the amended complaint (#36) on March 10, 2010.

9 On February 8, 2010, this Court issued an order (#33) appointing
10 Plaintiffs Randolph K. Jordan, Kimberly J. Jordan, Christopher Carr,
11 Roxanne Clayton, and Brian Bennet as interim lead plaintiffs and
12 consolidating 3:09-cv-00585-ECR-RAM (member case) under 3:09-cv13 00584-ECR-RAM (base case).
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On March 16, 2011, we issued an order (#80) in which we granted

15 in part and denied in part Defendants’ motion to dismiss (#40) and
16 denied Defendants’ motion for summary judgment (#44) and Defendant
17 IGT Profit Sharing Committee’s alternative motion for summary
18 judgment (#46).

We dismissed the following claims: failure to avoid

19 conflicts of interest against all Defendants; breach of prudence and
20 loyalty with respect to the imprudent investment of Plan assets
21 against all Defendants; breach of prudence and loyalty with respect
22 to failure to disclose material facts regarding the Plan against
23 Defendants Siciliano and the Director Defendants; co-fiduciary
24 liability against all Defendants under 29 U.S.C. § 1105(a)(1) and
25 (a)(3) and against Defendant Siciliano under § 1105(a)(2).
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On April 6, 2011, Defendants filed their answer (#87) to the

2 amended complaint (#36).
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On May 16, 2011, the Magistrate Judge entered the scheduling

4 order (#100), setting the discovery deadline for May 31, 2012.
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On June 14, 2011, Plaintiffs filed a motion (#105) seeking to

6 voluntarily dismiss Plaintiff Roxanne Clayton (“Ms. Clayton”) as a
7 plaintiff from this litigation and to quash Defendants’ document
8 request to her.

Defendants responded (#108) on June 29, 2011.

9 Plaintiffs filed their reply (#115) on July 11, 2011.
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II. Discussion

12 A. Plaintiff Roxanne Clayton’s Voluntary Dismissal
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Pursuant to Federal Rule of Civil Procedure (“FRCP”) 41(a)(2),

14 Plaintiffs request the Court to allow Clayton to withdraw as a
15 plaintiff from this action for personal reasons and become an absent
16 class member should the Court certify a class.

FRCP 41(a)(2)

17 provides that after an opposing party has answered, an action may be
18 dismissed at the plaintiff’s request only by the court, on terms
19 that the court considers proper.
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Defendants disagree that FRCP 41(a)(2) is the proper procedural

21 vehicle for dismissing Ms. Clayton’s claims where she wishes to
22 remain as an absent member of the putative class.

Defendants

23 further imply that Clayton seeks to withdraw for the improper
24 purpose of evading discovery.

Despite their contentions, Defendants

25 do not otherwise oppose Ms. Clayton’s withdrawal as a named
26 plaintiff.

Further, the Court is satisfied that Defendants will not

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1 be prejudiced by her withdrawal, as there remain four similarly2 situated named Plaintiffs who claims do not differ from Ms.
3 Clayton’s.

Finally, the Court is satisfied that Ms. Clayton does

4 not seek to dismiss her claims for the improper purpose of evading
5 discovery, (see McKenna Decl. (#116) at ¶¶ 4-5),

and will therefore

6 not inquire into her personal reasons for withdrawal.

For the

7 foregoing reasons, Plaintiffs’ motion to withdraw Ms. Clayton as a
8 named Plaintiff will therefore be granted.
9 B. Plaintiffs’ Motion to Quash Defendants’ Document Request
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Plaintiffs seek an order of the Court “quashing” Defendant

11 IGT’s First Request for Production of Documents to Plaintiff Roxanne
12 Clayton, served upon them on May 24, 2011, as she wishes to withdraw
13 as a plaintiff in this case.

Defendants claim that Plaintiffs’

14 request should be denied because Plaintiffs in essence seek a
15 protective order for which they have not made the adequate showing.
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It is important to again note that the Court finds that Ms.

17 Clayton is not seeking to withdraw in an attempt to evade discovery,
18 a factor that distinguishes cases cited by Defendants where courts
19 have compelled withdrawing plaintiffs to submit to discovery
20 requests.

Further, Ms. Clayton has no claims separate from the

21 other class members, is not in defiance of any prior court orders
22 compelling her to respond to discovery requests, and seeks to
23 withdraw at an early stage in the discovery process - all of which
24 are further factors that distinguish this case from others where a
25 court compelled a withdrawing party to answer discovery requests.
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However, Defendants are correct in stating that there is no

2 subpoena here for the Court to quash, only an initial document
3 request among the parties.

Presumably, Ms. Clayton may choose not

4 to answer the document request.

Defendants may wish to issue a

5 subpoena and/or a subpoena duces tecum with regard to Clayton and/or
6 her documents, which Plaintiffs may then wish to quash.

Defendants

7 also have the option of a properly-styled motion to compel, at which
8 point the Court would have an adequate opportunity to address the
9 fully-briefed issue of whether Ms. Clayton, as an absent class
10 member and a former named plaintiff, should be compelled to submit
11 to Defendants’ discovery requests.

However, that issue has not been

12 placed before the Court, nor has the issue of a protective order
13 should Plaintiffs later choose to seek one with regard to Ms.
14 Clayton.

For these reasons, the Court can only deny Plaintiffs’

15 request to quash as procedurally improper, but will admonish the
16 parties that this ruling is not be construed as an order that Ms.
17 Clayton answer Defendants’ discovery requests.
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III. Conclusion
Plaintiff Roxanne Clayton may withdraw as a named plaintiff in

21 this case and remain as an absent putative class member, should the
22 Court certify the class.

Plaintiffs’ request that Defendant IGT’s

23 First Request for Production of Documents as to Ms. Clayton will be
24 denied because there is no subpoena for the Court to quash, but nor
25 is Ms. Clayton ordered to submit to the request, as that issue has
26 not been properly placed before the Court.
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IT IS, THEREFORE, HEREBY ORDERED that Plaintiffs’ Motion for an

2 Order Dismissing, Without Prejudice, Roxanne Clayton as a Plaintiff
3 (#105) is GRANTED.
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IT IS FURTHER ORDERED that Plaintiff’s Motion for an Order

6 Quashing Defendants’ Document Request (#105) is DENIED.
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13 DATED: February 22, 2012.
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____________________________
UNITED STATES DISTRICT JUDGE

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