IVANOVS et al v. BAYADA HOME HEALTH CARE, INC.
Filing
169
OPINION. Signed by Judge Noel L. Hillman on 6/28/2021. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SONYA IVANOVS and KATIE
HOFFMAN, on behalf of
themselves and all other
similarly situated employees,
1:17-cv-01742-NLH-AMD
OPINION
Plaintiffs,
v.
BAYADA HOME HEALTH CARE,
INC.,
Defendant.
APPEARANCES
MICHAEL JOHN PALITZ
SHAVITZ LAW GROUP, P.A.
830 3RD AVENUE, 5TH FLOOR
NEW YORK, NY 10022
GREGG I. SHAVITZ (admitted pro hac vice)
ALAN L. QUILES (admitted pro hac vice)
SHAVITZ LAW GROUP, P.A
1515 SOUTH FEDERAL HIGHWAY, SUITE 404
BOCA RATON, FL 33432
On behalf of Plaintiffs
MICHAEL D. HOMANS
HOMANS PECK LLC
TWO PENN CENTER
1500 JOHN F. KENNEDY BLVD., SUITE 520
PHILADELPHIA, PA 19102
On behalf of Defendant
HILLMAN, District Judge
Plaintiffs Sonya Ivanovs and Katie Hoffman, on behalf of
themselves and all those similarly situated, allege that
Defendant, BAYADA Home Health Care, Inc., unlawfully classifies
all of its Client Service Managers (“CSMs”) nationwide as exempt
from the minimum wage and overtime requirements of the Fair
Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”). 1
On
September 25, 2018, this Court granted Plaintiffs’ motion to
conditionally certify Plaintiffs’ collective action.
Since
then, the case has proceeded through discovery, and currently
pending is Plaintiffs’ motion to enter a final order certifying
the class, and Defendant’s competing motion to decertify the
class.
Also pending, and presently before the Court, is
Defendant’s motion brought pursuant to Federal Rule of Civil
Procedure 37(b) to dismiss the claims of 54 opt-in plaintiffs
for their repeated failure to respond to written discovery
served on them on January 30, 2020, and one opt-in plaintiff who
failed to appear at her deposition and has since failed to
participate in the case. 2
On May 7, 2020, this Court entered an
Order to Show Cause directing that within 15 days those 55 optin plaintiffs were to show cause as to why their claims should
Plaintiffs bring this action on behalf of themselves and others
“similarly situated” to remedy alleged violations of the Fair
Labor Standards Act, 29 U.S.C. § 201, et seq., and therefore
this Court exercises subject matter jurisdiction pursuant to 28
U.S.C. § 1331.
1
2
This opt-in plaintiff is Ashley Johnson.
2
not be dismissed.
(Docket No. 158.)
On May 24, 2021,
Plaintiffs’ counsel filed a response to the Court’s Order to
Show Cause.
(Docket No. 161.)
Fourteen opt-in plaintiffs
responded, 3 and twelve of those parties expressed that they wish
to remain as opt-in plaintiffs in this case and do not want to
be dismissed.
Defendant filed a response on June 10, 2021.
(Docket No. 165.)
Defendant objects to ten of the twelve who
responded to the Court’s Order.
For the reasons expressed below, the Court will grant
Defendant’s motion as to the two opt-in plaintiffs who expressly
stated that they do not wish to pursue their claims, 4 and as to
the 43 opt-in plaintiffs who did not respond to the Court’s
Order to Show Cause.
The Court will deny Defendant’s motion as
to the two opt-in plaintiffs to whom Defendant does not object, 5
Plaintiffs’ counsel states they received fifteen responses.
One of the fifteen listed by Plaintiffs’ counsel is Lindsey
Shirley. Counsel indicates that immediately upon emailing the
Order to Show cause on May 11, 2021, Plaintiffs’ Counsel
received a bounceback message indicating the email was not
deliverable. Shirley also received a letter via U.S. Mail to
her last-known address and an advisory text message. Shirley
never responded. Therefore, Shirley will be considered in the
group of 43 who did not respond to the Court’s Order to Show
Cause.
3
These two opt-in plaintiffs are Laura Mariusso and Kayla
Shackelford.
4
These two opt-in plaintiffs are Shakir Cook and Keisha
Schoephoerster. Both of these parties sent their responses to
Defendant’s written discovery requests, but those responses had
been inadvertently misplaced by Plaintiffs’ counsel and not
5
3
as well as the ten opt-in plaintiffs Defendant now objects to.
1.
Ten opt-in plaintiffs who responded to this
Court’s Order to Show Cause
Under the Federal Rules of Civil Procedure, if a party
“fails to obey an order to provide or permit discovery,
including an order under Rule 26(f), 35, or 37(a),” fails to
appear at a deposition, or fails to provide answers to
interrogatories, the court may “dismiss[] the action or
proceeding in whole or in part.”
Fed. R. Civ. P. 37(b); Fed. R.
Civ. P. 37(d)(3) (“Sanctions may include any of the orders
listed in Rule 37(b)(2)(A)(i)—(vi).”).
Where a sanction may “deprive a party of the right to
proceed with or defend against a claim,” courts must weigh the
six factors enunciated by the Third Circuit in Poulis v. State
Farm Casualty Co., 747 F.2d 863, 870 (3d Cir. 1984) (explaining
that the relevant “factors should be weighed by the district
courts in order to assure that the ‘extreme’ sanction of
dismissal or default is reserved for the instances in which it
is justly merited”).
These factors are: (1) the extent of the
party’s personal responsibility; (2) the prejudice to the
adversary caused by the failure to meet scheduling orders and
respond to discovery; (3) a history of dilatoriness; (4) whether
the conduct of the party or the attorney was willful or in bad
provided to Defendant.
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faith; (5) the effectiveness of sanctions other than dismissal
or default judgment, which entails an analysis of alternative
sanctions; and (6) the meritoriousness of the claim or defense.
The objected-to ten opt-in plaintiffs who responded to this
Court’s Order to Show Cause and who request that they remain in
the case have provided the following explanations to Plaintiffs’
counsel for their failure to respond to Defendant’s written
discovery:
1.
Chara Danielle Aylesworth: Ms. Aylesworth responded on
May 11, 2021 and states that she did not timely respond to the
original discovery requests out of fear of retaliation.
She
realizes that retaliation is unlawful, but was relatively new to
the company when this case came forward and needed her job.
Ms.
Aylesworth is still employed with Bayada, but feels she has been
with the company long enough that she is not as concerned about
retaliation as she was when she was a new employee.
She
expressed a willingness to provide responses and is in the
process of doing so.
If allowed to remain in the case, Ms.
Aylesworth requests an additional two weeks in which to provide
her complete discovery responses.
2.
Alexandra Carpilio: Ms. Carpilio emailed Plaintiffs’
Counsel on May 11, 2021, explaining that her contact information
has changed, and she did not receive any prior communications
from Plaintiffs’ counsel related to the discovery, and was not
5
aware of her obligations.
Opt-In Carpilio provided Plaintiffs’
counsel with her updated contact information which is, indeed,
different from where Plaintiffs’ counsel sent prior discoveryrelated communications.
She expressed a willingness to provide
responses and is in the process of doing so.
If allowed to
remain in the case, Ms. Carpilio requests an additional two
weeks in which to provide her complete discovery responses.
3.
Kristin Crighton: Ms. Crighton responded on May 24,
2021 indicating she thought she had previously provided
discovery responses to Plaintiffs’ Counsel, but between the
pandemic, a new job, and long hours may have missed our emails.
Indeed, Ms. Crighton provided partial responsive information to
Plaintiffs’ counsel in August 2020.
However, Ms. Crighton did
not respond to subsequent requests for additional information.
Ms. Crighton has just provided Plaintiff’s Counsel with all the
additional information needed to draft responses on her behalf.
If allowed to remain in the case, Ms. Crighton requests an
additional two weeks in which to provide her finalized discovery
responses.
4.
Lisa Earp: Ms. Earp passed away prior to the service
of the discovery requests.
Her surviving spouse, James Earp,
responded to Plaintiffs’ Counsel by email on May 11, 2021.
Mr.
Linz explained that he does not have any of his late wife’s
documents from Bayada, and otherwise does not have sufficient
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personal knowledge to provide discovery responses, but that he
is generally aware of the hours his wife worked at Bayada.
If
the Court permits Ms. Earp’s claims to survive, Mr. Earp
indicated he will take whatever action is required to substitute
his late wife’s estate, or take whatever action is necessary to
preserve her claim.
5.
Kathryn Fortier: Ms. Fortier responded by telephone on
May 11, 2021.
Ms. Fortier indicated that she was unaware she
would be required to provide discovery responses when submitting
her claim form.
The discovery requests ask her to identify
witnesses and provide some information about her work history,
which she is not willing to do.
Ms. Fortier would like to
remain part of the case without providing contact information
for her former co-workers or information related to her work
history.
If permitted to remain in the case, Ms. Fortier
requests an additional two weeks in which to provide her
complete discovery responses.
6.
Madonna Murphy: Ms. Murphy responded on May 24, 2021
via email explaining that COVID has caused her many obstacles
over the past year, and that as a result she has missed many
email communications.
Ms. Murphy stated that over the course of
the year she has continued to work for her health system,
reporting to work each day, navigating through many challenges
and shifts in roles and responsibilities.
7
She indicates she did
not intentionally ignore the requests, but instead focused on
staying mentally and physically healthy, meeting personal and
professional obligations and keeping her family healthy and
safe.
She expressed a willingness to provide responses and is
in the process of doing so.
If allowed to remain in the case,
Ms. Murphy requests an additional two weeks in which to provide
her complete discovery responses.
7.
Diane Nast: Ms. Nast passed away prior to the service
of the discovery requests.
Her surviving spouse, Joe Linz,
responded to Plaintiffs’ Counsel by telephone on May 11, 2021.
Mr. Linz explained that he does not have any of his late wife’s
documents from Bayada, and otherwise does not have sufficient
personal knowledge to provide discovery responses, but that he
is generally aware of the hours his wife worked at Bayada.
If
the Court permits Ms. Nast’s claims to survive, Mr. Linz
indicated he will take whatever action is required to substitute
his late wife’s estate, or take whatever action is necessary to
preserve her claim.
8.
Beth Sippola: Ms. Sippola responded on May 20, 2021
and explained that she did not originally respond to discovery
because multiple people had told her that Bayada could “come
after” her or try to “get rid” of her.
feared retaliation.
She needed her job and
Ms. Sippola is no longer employed by Bayada
and has no present fear of retaliation.
8
She expressed a
willingness to provide responses and is in the process of doing
so.
If allowed to remain in the case, Ms. Sippola requests an
additional two weeks in which to provide her complete discovery
responses.
9.
Chloe Smith: Ms. Smith called and emailed her response
on May 12, 2021, explaining that at the time the discovery
requests were served she still worked at Bayada and feared
retaliation.
livelihood.
She needed her job and did not want to risk her
Ms. Smith expressed a willingness to provide
responses and is in the process of doing so.
If allowed to
remain in the case, Ms. Smith requests an additional two weeks
in which to provide her complete discovery responses.
10.
Diana Sweetser: Ms. Sweetser responded on May 19, 2021
stating that she had been away from home for an extended period
and was otherwise unable to direct her attention to providing
timely discovery responses.
Ms. Sweetser was out of state
caring for her elderly parents when the discovery requests were
served.
Her father passed away in 2019, but she stayed to be
the primary caregiver for her mother who suffers from dementia.
She happened to be home for a short period of time when we sent
our message related to the Order to Show Cause.
She has located
some responsive documents and is in the process of locating
others so she can provide full responses.
If allowed to remain
in the case, Ms. Sweetser requests an additional two weeks in
9
which to provide her complete discovery responses.
(Docket No. 161 at 2-6.)
The Court has reviewed and considered Defendant’s
challenges to these ten opt-in plaintiffs’ “excuses.” (Docket
No. 165.)
Defendant argues that fear of reprisal, general lack
of diligence, and the absence of documentation to support their
claims are excuses not worthy of credence or are otherwise
inexcusable, and therefore they should be dismissed from the
case.
The Court does not agree.
Even if the Court were to credit Defendant’s observations
regarding these plaintiffs’ “excuses,” and accepting that the
ten opt-in plaintiffs are personally responsible for failing to
respond to Defendant’s discovery requests, Defendant has not
articulated (1) how it will be directly prejudiced by permitting
these plaintiffs one final opportunity to provide discovery
responses, (2) how it is unlikely these plaintiffs have viable
claims, or (3) how the ultimate sanction of dismissal is
warranted under these circumstances.
Moreover, the Court notes that in Defendant’s moving brief
in support of its motion to dismiss the non-responsive opt-in
plaintiffs, Defendant requested the following relief: “[T]his
Court should dismiss the claims of the Non-Responsive Opt-Ins
pursuant to Rule 37(b) of the Federal Rules of Civil Procedure,
providing them with a final period to produce all requested
10
discovery responses within seven (7) days of the Court’s Order.”
(Docket No. 126-1 at 14.)
In this Court’s Order to Show Cause,
the Court reversed the requested order of events because notice
of a sanction is required prior to the imposition of the
sanction. 6
But regardless of the reverse order, Defendant had
not originally sought to assess the viability of a plaintiff’s
reasons for failing to provide discovery before that plaintiff
was permitted to respond and remain in the case.
Instead,
Defendant’s only condition of a non-responsive plaintiff’s
continuation in the case was that the discovery responses be
submitted within seven days.
“Dismissal must be a sanction of last, not first, resort.”
Poulis, 747 F.2d at 869; see also Mindek v. Rigatti, 964 F.2d
1369, 1373 (3d Cir. 1992) (“Dismissal is a harsh remedy and
should be resorted to only in extreme cases.”).
For the ten
above-listed opt-in plaintiffs, the preclusion of their
participation in this case is not warranted.
These plaintiffs
shall have fourteen days from the issuance of this Opinion and
accompanying Order to provide the discovery requested by
See, e.g., Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1147 (3d
Cir. 1990) (explaining that notice of the sanction of dismissal
for discovery violations is required prior to dismissal, and
such notice was provided in that case); In re Lawson, 774 F.
App’x 58, 60 (3d Cir. 2019) (requiring that before the sanction
of dismissal is imposed, prior notice and providing an
opportunity to respond is required).
6
11
Defendant. 7
If any plaintiff fails to do so without leave of
Court, this Opinion provides notice that their claims will be
subject to dismissal.
2.
Forty-three opt-in plaintiffs who failed to
respond to the Order to Show Cause
In contrast to the ten opt-in plaintiffs who responded to
the Court’s Order to Show Cause, an assessment of the Poulis
factors shows that the dismissal of these forty-two opt-in
plaintiffs’ claims is warranted.
(1) The extent of the party’s personal responsibility:
The
non-responsive parties failed to respond to discovery and failed
to respond to the Court’s Order to Show Cause, which was served
on them via U.S. Mail, text message, and email on or before May
12, 2021.
(Docket No. 159.)
The Court has no information to
find that it is not the parties’ personal responsibility for
failing to pursue their claims.
(2) The prejudice to the adversary caused by the failure to
meet scheduling orders and respond to discovery:
Without these
parties’ participation in their claims, including responding to
Defendant’s discovery requests, Defendant has no ability to
defend itself on those claims.
The parties shall also notify the Court if the discovery
provided by any of these opt-in plaintiffs will affect the
pending motion to decertify the collective action [139] and the
pending motion for final certification of the collective action
[141].
7
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(3) A history of dilatoriness:
The same analysis as the
personal responsibility factor applies to this factor.
(4) Whether the conduct of the party or the attorney was
willful or in bad faith:
The Court has no information to
conclude that these plaintiffs’ failure to participate in this
case was not willful.
(5) The effectiveness of sanctions other than dismissal or
default judgment, which entails an analysis of alternative
sanctions:
These 43 non-responsive opt-in plaintiffs’ repeated
failure to respond to their attorneys and this Court compels the
determination that no other sanction but dismissal would be
effective.
(6) The meritoriousness of the claim or defense:
Without
these plaintiffs’ responses to Defendant’s discovery requests
and their participation in their case, the Court cannot
determine whether their claims have any merit.
Consequently, pursuant Fed. R. Civ. P. 37(b) and Fed. R.
Civ. P. 37(d)(3), the claims of following opt-in plaintiffs will
be dismissed:
1. Anika Allen
2. Sondra Barauskas
3. Latwainda Fayette Beal
4. Shanise (Little) Campbell
5. Mariangelys Cruz-Mercado
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6. Kristina Davis
7. Dorothy Desmarais
8. Richard Desterhouse
9. Jeanette Diaz
10. Victoria Marie Elisseou
11. Deborah Ann Estey
12. Galo Estrella
13. Dawn Fisher
14. Jennifer Gryga
15. Jordan Hester
16. Christopher Allan Hetkowski
17. Bakara Hudson
18. Alissa (Gage) Hunt
19. Chelsea Leigh James
20. Ashley Johnson
21. Rosemary Nora Johnson
22. Carolyn Klair
23. Janine Kreiss
24. Jennifer Nicole Laster
25. Casey Louise Levesque
26. Amber Long
27. Rachel Lopez
28. Laura Mariusso
29. Christine McMahon
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30. Minh Nguyen
31. Allison Joelle Nulton
32. Jamie O’Brian
33. Anthipi Marika Paxinos
34. Laura Rae Sears
35. Kayla Roberts Shackleford
36. Lyndsey Shirley
37. Tawanya Smith
38. Michelle Brittany Thibault
39. Kelly Turinsky
40. Krystal Imari Velez
41. Curt Von Neumann
42. Sean Joseph Whittaker
43. Kimberly Williams
CONCLUSION
For the reasons expressed above, Defendant’s motion to
dismiss the non-responsive opt-in plaintiffs will be granted in
part and denied in part.
An accompanying Order will be entered.
Date: June 28, 2021
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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