Hinterberger et al v. Catholic Health System, Inc. et al

Filing 457

REPORT AND RECOMMENDATIONS re # 394 MOTION to Dismiss Renewed Motion to Dismiss Non-Responsive Opt-In Plaintiffs filed by Defendnats, Objections due fourteen days from receipt. DECISION AND ORDER dismissing re # 396 MOTION to Withdraw as Attorney for Unresponsive Opt-In Plaintiffs filed by Cynthia Williams, Gail Hinterberger, Marcia Carroll, Beverly Weisbecker. Signed by Hon. Leslie G. Foschio on 5/21/2013. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
GAIL HINTERBERGER, et al.,
Plaintiffs,
v.
CATHOLIC HEALTH SYSTEM, INC., et al.,
Defendants.
_____________________________________
APPEARANCES:

REPORT
and
RECOMMENDATION
----------------------------DECISION
and
ORDER
08-CV-380S(F)

THOMAS & SOLOMON, LLP
Attorneys for Plaintiffs
MICHAEL J. LINGLE,
SARAH E. CRESSMAN, of Counsel
693 East Avenue
Rochester, New York 14607
NIXON PEABODY, LLP
Attorneys for Defendants
MARK A. MOLLOY,
TODD R. SHINAMAN,
JOSEPH A. CARELLO, of Counsel
40 Fountain Plaza, Suite 500
Buffalo, New York 14202

JURISDICTION
By order of Hon. William M. Skretny, dated January 6, 2010 (Doc. No. 243), this
matter was referred to the undersigned for all non-dispositive pretrial matters pursuant
28 U.S.C. § 636(b)(1)(A). The matter is presently before the court on Defendants’
Renewed Motion To Dismiss Non-Responsive Opt-In Plaintiffs pursuant to Rule 37, filed
November 9, 2012 (Doc. No. 394) and a motion by Plaintiffs’ counsel, filed November
26, 2012 (Doc. No. 396), requesting permission to withdraw pursuant to Local R.Civ.P.
83.2(d)(1). By order dated April 4, 2013, Chief Judge Skretny referred Defendants’

Renewed Motion to Dismiss Non-Responsive Opt-In Plaintiffs to the undersigned for a
report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).1

BACKGROUND
This is an action for unpaid wages and overtime pay brought under the Fair Labor
Standards Act (“FLSA”) and New York State Labor Law on behalf of Defendants’ hourly
employees, particularly nurses, other heath care staff, clerical, and maintenance
workers. Plaintiffs’ FLSA claims have been conditionally certified; Plaintiffs’ request for
class certification of Plaintiffs’ state law wage claims is pending.
In support of Defendants’ motion, Defendants filed a Declaration In Support Of
Motion To Dismiss Non-Responsive Opt-In Plaintiffs, filed November 9, 2012 (Doc. No.
394-1) (“Molloy Declaration”) along with exhibits A - C (Doc. No. 394-2, 394-3, 394-4)
(“Molloy Declaration Exh(s). ___”).2 In opposition, Plaintiffs filed, on November 26,
2012, the Affirmation Of Sarah E. Cressman In Opposition To Defendants’ Renewed
Motion To Dismiss The FLSA Claims Of Certain Opt-In Plaintiffs (Doc. No. 399)
(“Cressman Affirmation”) together with exhibit A (Doc. No. 399-1) (“Cressman
Affirmation Exh. A”). On December 6, 2012, Defendants filed a Reply In Support Of
Renewed Motion To Dismiss Non-Responsive Opt-In Plaintiffs (Doc. No. 409) (“Molloy
Reply Declaration”).

1

Because Defendants’ m otion to dism iss for failure to com ply with court ordered discovery and
Plaintiffs’ counsel’s m otion to withdraw are interrelated, they are addressed in this com bined Report and
Recom m endation and Decision and Order.
2

Defendants also rely on Defendants’ Mem orandum of Law filed January 23, 2012 (Doc. No.
294) in support of Defendants’ m otion to com pel or dism iss Plaintiffs’ claim (Doc. No. 293).
2

As noted, on November 26, 2012, Plaintiffs’ counsel filed a Motion to Withdraw
As Counsel for certain individuals, a list of whom is attached as Exhibit A to the
Affirmation of Sarah E. Cressman (Doc. No. 396) (“Plaintiffs’ counsel’s motion”), a
Memorandum of Law In Support Of Plaintiffs’ Counsel’s Motion To Withdraw As Counsel
For Unresponsive Opt-In Plaintiffs (Doc. No. 396-1) (“Plaintiffs’ Counsel’s
Memorandum”) and the Affirmation of Sarah E. Cressman (Doc. No. 396-2) (“Cressman
Affirmation In Support of Motion To Withdraw”) attaching exhibits A and B (Doc. Nos.
396-3 and 396-4) (“Cressman Affirmation Exh(s). ___”). On December 12, 2012,
Defendants filed an Attorney Declaration In Opposition To Plaintiffs’ [sic] Motion To
Withdraw As Counsel For Certain Plaintiffs (Doc. No. 412) (“Shinaman Declaration”).
Oral argument was deemed unnecessary. Based on the following, Defendants’ motion
should be GRANTED in part, and DENIED in part; Plaintiffs’ motion is DISMISSED as
moot.

FACTS3
Defendants’ First Set of Interrogatories and Amended First Request for
Production of Documents was served November 2, 2010. In order to facilitate the
numerous opt-in Plaintiffs, the parties agreed to serve such requests upon a sample
group of 50 randomly selected opt-in Plaintiffs in accordance with a Discovery
Stipulation agreed to by the parties in August 2011. Because only 20 of this initial
sample group provided responses, a second sample group of 60 randomly selected opt-

3

Taken from the pleadings and papers filed in connection with Defendants’ and Plaintiffs’
counsel’s m otion.
3

in Plaintiffs was designated by Plaintiffs’ counsel and served with Defendants’ discovery
requests. On November 30, 2011, Plaintiffs served Defendants with responses from 26
of the second sample group. As a result of the failure of all 110 opt-in Plaintiffs,
designated by Plaintiffs as the sample group from which to obtain discovery to respond
to Defendants’ discovery requests, Defendants moved to compel such responses or to
dismiss by motion filed January 23, 2012 (Doc. No. 293). On July 19, 2012, the court
granted Defendants’ motion to compel and denied Defendants’ motion to dismiss, and
directed the unresponsive Plaintiffs to provide responses to Defendants’ discovery
requests within 30 days, with leave to Defendants to seek dismissal should the
unresponsive opt-in Plaintiffs fail to comply with the court’s order. HInterberger v.
Catholic Health Systems, Inc., 08-CV-380S(F), Decision and Order, July 19, 2012 (Doc.
No. 328) (“July 19, 2012 D&O”) at 24-25. Alleging the unresponsive opt-in Plaintiffs who
were subject to the July 19, 2012 D&O had then failed to provide the requested
discovery in compliance with the court’s order, Molloy Declaration ¶ ¶ 8-9, Defendants
served, on November 19, 2012 (Doc. No. 394), a motion to dismiss such non-compliant
opt-in Plaintiffs pursuant to Fed.R.Civ.P. 37. More specifically, Defendants assert that
the 61 named opt-in Plaintiffs as listed in the Molloy Declaration Exh. A, should have
both their FLSA and state law claims dismissed with prejudice based on their failure to
comply with the court’s July 19, 2012 D&O. Molloy Declaration ¶ ¶ 15-16 (“all of
[Plaintiffs’] putative claims in the action, and not just [Plaintiffs’] FLSA claims, should be
dismissed entirely, with prejudice”). Defendants also requested the court award
Defendants’ expenses, including attorneys fees, incurred in connection with Defendants’
motion pursuant to Fed.R.Civ.P. 37(a)(5)(A). Molloy Declaration ¶ ¶ 20-21; Molly
4

Declaration ¶ 30 (requesting expenses pursuant to Fed.R.Civ.P. 37(b)(2)(C).
Plaintiffs do not contest Defendants’ request for dismissal of the 27 opt-in
Plaintiffs who have failed to provide discovery in compliance with the July 19, 2012 D&O,
Cressman Affirmation ¶ 13; rather, Plaintiffs’ counsel states that the failure of these optin Plaintiffs to communicate with counsel necessitated Plaintiffs’ counsel’s motion to
withdraw. Id. Plaintiffs’ counsel also objects to Defendants’ motion insofar as it seeks
dismissal of the state, as well as the FLSA, claims of the non-responsive opt-in Plaintiffs.
Cressman Affirmation ¶ ¶ 6-8. Plaintiffs further represent that 24 of the non-responsive
opt-in Plaintiffs wish to discontinue their respective FLSA claims, but that Defendants
insisted on execution of a Stipulation of Discontinuance of these Plaintiffs’ FLSA claims
as well as their state claims, and, as such, because these Plaintiffs refused to execute
such a stipulation, no stipulation of discontinuance for these 24 opt-in Plaintiffs was filed.
The names of these opt-in Plaintiffs, Cressman Affirmation ¶ 4, as well as the 27 other
opt-in Plaintiffs, are listed in Cressman Affirmation Exh. A at 3. Plaintiffs’ counsel also
states that Defendants seek to dismiss Joanne Gajewski one opt-in Plaintiff, Cressman
Affirmation Exh. A at 3, as deceased and unable to respond to Defendants’ discovery
requests, Cressman Affirmation ¶ 11, and that Plaintiffs’ counsel “anticipated” seeking
substitution for this deceased person pursuant to Fed.R.Civ.P. 25. Id. Plaintiffs’ counsel
further avers that nine opt-in Plaintiffs have, as of the date of the Cressman Affirmation,
November 26, 2012 (Doc. No. 399), after being “notified” of Defendants’ motion,
indicated to Plaintiffs’ counsel an “intention” to provide the discovery responses ordered
by the court, and that as Plaintiffs’ counsel “anticipates that responses from these
individuals will be forthcoming,” Cressman Affirmation ¶ 12; Cressman Affirmation Exh.
5

A at 2-3 (listing names), dismissal as to these opt-in Plaintiffs should be denied.
In support of Plaintiffs’ counsel’s motion to withdraw, Plaintiffs’ counsel attempted
to communicate with the unresponsive opt-in Plaintiffs, unsuccessfully, in an attempt to
obtain responses to Defendants’ discovery requests over a two-year period, and in some
instances contact occurred “up to twenty times.” Cressman Affirmation In Support of
Motion To Withdraw ¶ 6. Despite counsel’s repeated attempts to obtain the cooperation
of these opt-in Plaintiffs, including Plaintiffs’ counsel’s letter of November 19, 2012
advising that absent an immediate response from the unresponsive opt-in Plaintiffs,
counsel would seek to withdraw, no responses were received. Id. ¶ ¶ 6-10. The names
of the 27 unresponsive opt-in Plaintiffs as to whom Plaintiffs’ counsel seeks to withdraw
are listed in Cressman Affirmation Exh. A.

DISCUSSION
Defendants seek to dismiss with prejudice the 61 unresponsive opt-in Plaintiffs.
Molloy Declaration ¶ 12; Molloy Reply Declaration ¶ 5 (Defendants’ request to dismiss
“all opt-in plaintiffs who have not responded to [Defendants’] discovery demands”).4
Specifically, Defendants’ motion seeks dismissal as a sanction based on the refusal of
opt-in Plaintiffs who have failed to comply with the July 19, 2012 D&O granting
4

In support of Plaintiffs’ counsel’s m otion, Plaintiffs’ counsel asserts that counsel does not
consent to Defendants’ m otion and that counsel cannot “represent such individuals with respect to any
such request.” Plaintiffs’ Counsel’s Mem orandum at 4 n.1 (am biguously referencing the rem aining
Plaintiffs). Assum ing this assertion was intended to refer to the unresponsive opt-in Plaintiffs, such
assertion is contrary to the record and unsupported by any reference to relevant authority. Counsel failed
to seek to withdraw prior to Defendants’ m otion and, in fact, opposed Defendants’ m otion. See Cressm an
Affirm ation ¶ 2 (Cressm an Affirm ation is subm itted “in opposition to defendant’s renewed m otion to
dism iss the FLSA claim s of certain opt-in plaintiffs.”) (Doc. No. 399). Counsel’s assertion that for the
purpose of Defendants’ m otion they no longer represent the unresponsive opt-in Plaintiffs with regard to
Defendants’ m otion is therefore rejected.
6

Defendants’ prior motion to compel responses to Defendants’ First Set of Interrogatories
and Amended First Request for Production of Documents. “[D]ismissal with prejudice is
a harsh remedy to be used only in extreme situations, and then only where a court finds
‘wilfulness, bad faith, or any fault’” by the non-compliant party. Agiwal v. Mid Island
Mortgage Corp., 555 F.3d 298, 302 (2d Cir. 2009) (quoting Bobal v. Rensselaer
Polytechnic Institute, 916 F.2d 759, 764 (2d Cir. 1990)). In assessing whether dismissal
of an action to sanction non-compliance with a discovery order is warranted, courts
consider “(1) the willfulness of the non-compliant party or the reason for noncompliance;
(2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and
(4) whether the non-compliant party had been warned of the consequences of . . .
noncompliance.” Id. (internal quotation marks and citation omitted).
Here, the July 19, 2012 D&O granted Defendants’ motion to compel as to all 110
opt-in Plaintiffs who comprised both sample groups, denied Defendants’ request for
dismissal because the court determined these opt-in Plaintiffs had not received
adequate notice of the possibility their claims could be dismissed for failure to respond to
Defendants’ discovery requests, and directed responses be provided within 30 days.
July 19, 2012 D&O at 24-25. Defendants now maintain 61 opt-in Plaintiffs have failed to
comply with the court’s direction and are therefore subject to dismissal. Molloy
Declaration Exh. A (identifying 61 unresponsive opt-in Plaintiffs). Plaintiffs’ counsel does
not directly contradict Defendants’ statement of the identity of the 61 non-responsive
opt-in Plaintiffs Defendants seek to dismiss; rather, Plaintiffs assert that two members of
this group of opt-in Plaintiffs, Lorie Caruana and Norah Crawford, had previously
indicated a desire to stipulate to a dismissal of their FLSA claims, but that Defendants
7

wrongly insisted that such dismissal cover these Plaintiffs’ state claims as well.
Cressman Affirmation ¶ ¶ 4-8. However, it is apparent from the record that regardless of
their asserted intent to withdraw their respective FLSA claims, these two opt-in Plaintiffs
did respond to Defendants’ discovery requests. See July 19, 2012 D&O at 6 n. 2 (noting
that Caruana had provided discovery and that Crawford and Caruana be allowed to
stipulate to a dismissal of their FLSA claims); Molloy Declaration Exh. A at 2 (noting that
both opt-ins, Caruana and Crawford, “opted out after initially serving responses”)
(underlining added). Thus, neither Caruana nor Crawford are properly included in the
list of 61 non-responsive opt-in Plaintiffs based on an alleged failure to comply with the
court’s order. Accordingly, neither should be dismissed pursuant to Fed.R.Civ.P.
37(b)(2)(A).
As to the 22 unresponsive opt-in Plaintiffs whom Plaintiffs’ counsel contends
should not be subject to dismissal for the alleged reasons that they consent to
withdrawal of their respective FLSA claims but not their state claims, and that as to 12 of
this group of opt-in Plaintiffs Plaintiff’s counsel expected to file withdrawal forms,
Cressman Affirmation ¶ ¶ 9-10, the court’s review of the docket indicates no withdrawals
have been filed as to these 22 opt-in Plaintiffs. Accordingly, because Plaintiffs’ counsel
does not dispute the FLSA claims of this group of 12 opt-in Plaintiffs are subject to
dismissal for failure to comply with the court’s order, these opt-in Plaintiffs remain
subject to Defendants’ motion. The court does not, therefore, further address the
dispute between the parties over whether any stipulation of the contemplated dismissal
should cover both the FLSA and state law claims of these individuals. The court notes,
however, that Defendants’ motion to compel was directed only to Plaintiffs’ FLSA claims
8

(Doc. No. 293 at 1 (Defendant Catholic Health System requests “an order compelling
discovery responses from plaintiffs, and/or to dismiss with prejudice the FLSA claims of
those opt-in plaintiffs who have failed to cooperate in discovery” (underlining added));
Declaration of Todd Shinaman (Doc. No. 293-1 ¶ 95) (stating that Defendants seek an
order to dismiss with prejudice directed to unresponsive opt-in Plaintiffs’ FLSA claims).
See also Shinaman Declaration ¶ 3 (Doc. No. 412) (describing the July 19, 2012 D&O
as directing unresponsive opt-in Plaintiffs to provide discovery within 30 days “to avoid
dismissal of their FLSA claims should defendants choose to renew the motion to
dismiss”) (underlining added).
Thus, as Defendants’ underlying motion to compel or dismiss, which is the basis
of the July 19, 2012 D&O, as well as the July 19, 2012 D&O itself, are directed only to
the unresponsive opt-in Plaintiffs’ FLSA claims, it follows that non-compliance of such
Plaintiffs with the court’s order can only support dismissal upon Defendants’ instant
motion of such opt-in Plaintiffs’ FLSA claims and not, as Defendants contend, the state
law claims of these opt-in Plaintiffs. In any event, given that the class action certification
has not yet been granted, Defendants’ discovery requests could not have been directed
to such claims. Simply, because Defendants’ motion cannot reach Plaintiffs’ state
claims because class action has not been granted, Defendants’ motion to compel was
not directed to such claims. Further, the unresponsive opt-in Plaintiffs had no notice
Defendants sought dismissal of both the FLSA and state claims, and, thus, Defendants’
request that the non-responsive opt-in Plaintiffs, as opposed to the FLSA claims, be
dismissed is without foundation.
Additionally, the record demonstrates that 57 of the unresponsive opt-in Plaintiffs
9

have failed to cooperate with Plaintiffs’ counsel in attempting to provide discovery
responsive to Defendants’ requests for over two years. The unexcused failure of such
opt-in Plaintiffs to cooperate with counsel and comply with an unambiguous direction of
the court over such a lengthy period amply supports a finding that such non-compliance
is wilful, or otherwise unexcused, and thus results from the fault of these Plaintiffs. See
Agiwal, 555 F.3d at 302 (quoting Bobal, 916 F.3d at 764). Plaintiffs do not contend
otherwise.
As to the efficacy of lesser sanctions to obtain compliance, it is apparent from the
record that such lesser sanctions such as adverse inferences or deemed admissions
pursuant to Rule 37(b)(2)(A)(i) would be futile. The unresponsive opt-in Plaintiffs have
failed to communicate with their attorneys for over two years despite Plaintiffs’ counsel’s
effort to gain their cooperation, causing Plaintiffs’ counsel to seek to withdraw. In such
circumstances, there is no reasonable possibility that lesser sanctions will be effacious
in gaining responses to Defendants’ discovery requests given that such Plaintiffs were
notified by the July 19, 2012 D&O, as well as by Defendants’ motion, that persistent noncompliance with court-ordered discovery directions may result in dismissal with
prejudice. Whether the conduct of the non-responsive opt-in Plaintiffs also constitutes
an abandonment of their claims was not raised on Defendants’ motion and is not before
the court.
As to the one opt-in Plaintiff Plaintiffs’ counsel asserts is deceased, Joanne
Gajewski, Cressman Affirmation Exh. A at 3, contrary to Plaintiffs’ counsel’s
representation, Cressman Affirmation ¶ 11, no request for substitution has been filed on
behalf of this opt-in Plaintiff within 90 days of November 26, 2012, the date of the
10

Cressman Affirmation, constituting a suggestion of death, as required by Fed.R.Civ.P.
25(a) (“Rule 25(a)(1)”), nor has there been any request to extend the 90-day period.
See Jones v. Siegfried Const. Co., Inc., 105 F.R.D. 491, 491-92 (W.D.N.Y. 1984) (late
substitution may be permitted based on showing of excusable neglect). Accordingly,
regardless of whether, like the other non-responsive opt-in Plaintiffs, this opt-in Plaintiff
was ever notified of the July 19, 2012 D&O and Defendants’ motion, Ms. Gajewski
should be dismissed from the action pursuant to Rule 25(a)(1).
Finally, as to the nine non-responsive opt-in Plaintiffs Plaintiffs’ counsel asserted,
Cressman Affirmation Exh. A at 2-3, would provide discovery after notice of Defendants’
motion, to date the record fails to indicate any such discovery has been provided. Thus,
the FLSA claims of each of these nine non-responsive opt-in Plaintiffs should also be
dismissed for non-compliance with the court’s order. Discussion, supra, at 6-10.
Accordingly, Defendants’ motion should be GRANTED on the FLSA claims of
each of the non-responsive opt-in Plaintiffs listed in the Molloy Reply Declaration Exh. A,
with the exception, for the reasons stated, Discussion, supra, at 7-8, of opt-in Plaintiffs
Lorie Caruana and Norah Crawford, a total of 59 such Plaintiffs.
Plaintiffs’ counsel also opposed Defendants’ request for expenses and attorneys
fees on the ground that dismissal pursuant to Rule 37(a)(5)(A) (providing for attorney’s
fees upon granting a motion to compel) does not authorize attorney’s fees as an
additional sanction for dismissal pursuant to Fed.R.Civ.P. 37(b)(2)(A)(v). Cressman
Affirmation ¶ ¶ 9-10. However, this contention overlooks Fed.R.Civ.P. 37(b)(2)(C) which
specifically requires the court award such expenses against a party as a sanction
imposed pursuant to Fed.R.Civ.P. 37(b)(2)(A), unless the sanctioned party’s failure to
11

comply with the underlying order compelling discovery was substantially justified or an
award of such expenses would, under the circumstances, be unjust. As discussed,
Discussion, infra, at 6-10, Plaintiffs offer nothing to support that the unresponsive opt-in
Plaintiffs’ failure to provide Defendants’ requested discovery was substantially justified5 –
based on the record the court finds it was not – or that any award of expenses incurred
in connection with Defendants’ motion would, in the circumstances, be unjust. The court
also fails to perceive, based on the record, how such sanction under the circumstances
could be considered as unjust. However, as the record supports that the failure to
provide discovery in compliance with the court’s July 19, 2012 D&O cannot fairly be
attributed to any lack of diligence or other fault by Plaintiffs’ counsel, the court finds that
such expenses to Defendants are solely attributable to the unresponsive opt-in Plaintiffs,
and not Plaintiffs’ counsel. See Fed.R.Civ.P. 37(a)(5)(A) (providing for allocation of
expenses between counsel and party). Accordingly, as required by Rule 37(b)(2)(C)
such expenses are awarded against those individuals, based on their non-compliance
with the July 19, 2012 D&O, as the “disobedient part[ies].” Id.

B.

Plaintiffs’ Counsel’s Motion To Withdraw.
Plaintiffs’ counsel’s motion pursuant to Local Rule 83.2(d)(1) based on the lack of

cooperation from the non-responsive opt-in Plaintiffs as discussed above, relies on an
order of the Northern District of New York, Plaintiffs’ Memorandum Exh. B, granting
5

“The Suprem e Court has defined ‘substantially justified’ to m ean ‘justified in substance or in the
m ain’ – that is, justified to a degree that could satisfy a reasonable person.” United States v. $19,047.00
in U.S. Currency, 95 F.3d 248, 251 (2d Cir. 1996) (quoting Pierce v. Underwood, 487 U.S. 552, 565
(1988)); see also Ericksson v. Commissioner of Social Security, 557 F.3d 79, 82 & n. 1 (2d Cir. 2009)
(noting Suprem e Court’s definition of “substantially justified” as stated in Pierce, 487 U.S. at 565).
12

permission to withdraw in an FLSA collection action similar to the instant action based
on the established non-cooperation and failure of certain opt-in plaintiffs in that case to
communicate, like the instant case, with Plaintiffs’ counsel. However, the order relied
upon by Plaintiffs’ counsel is distinguishable as in that case, unlike the instant case,
there was no pending motion to dismiss such unresponsive opt-in plaintiffs pursuant to
Rule 37(b)(2)(A). The court accordingly declines to follow the example of the Northern
District in resolving Plaintiffs’ counsel’s motion.
As the court has determined that Defendants’ motion should be granted based on
the repeated and unexcused failures of the unresponsive opt-in Plaintiffs to provide
discovery and comply with this court’s order compelling such discovery, Discussion,
supra, at 6-10, the court finds no reason at this time to further address Plaintiffs’
counsel’s motion. Plaintiffs’ counsel’s motion should therefore be DISMISSED as moot.
Further proceedings with respect to the award of expenses to Defendants will be
scheduled consistent with the District Judge’s action on this Report and
Recommendation.
Finally, Defendants request “additional sanctions” against Plaintiffs’ counsel,
presumably Sarah E. Cressman (“Cressman”), based on untruthful representations to
the court to have been made by Cressman. Molloy Reply Declaration ¶ 34. Defendants
allege that although Cressman stated that Plaintiffs had, in seeking reconsideration of
the July 19, 2012 D&O, provided to Defendants all responses from the sample of opt-in
Plaintiffs which had, up to that point, been obtained by Plaintiffs’ counsel, Molloy Reply
Declaration ¶ 38 (quoting Cressman Affirmation (Doc. No. 338-2), in fact Plaintiffs’
counsel had been previously notified, a year earlier, that one unresponsive opt-in

13

Plaintiff, Sandra Schaefer (“Schaefer”) desired to withdraw and had been provided by
Plaintiffs’ counsel “a form” with which to do so. Molloy Reply Declaration ¶ 42. More
particularly, Defendants state that the basis of Molloy’s assertion is a tape-recorded
telephone call received by Defendants from Schaefer on November 24, 2012 indicating
that Schaefer had advised Plaintiffs’ counsel “last year” of her intention to withdraw as
an opt-in Plaintiff and informing Defendants that she was “bowing out of this lawsuit.” Id.
¶ 42. According to Defendants, the information communicated by Schaefer to
Defendants establishes Cressman was aware of Schaefer’s intentions prior to filing, in
August 2012, the Cressman Affirmation in support of Plaintiffs’ requested
reconsideration of the July 19, 2012 D&O, and supports the conclusion that the
representations to the court and Defendants made by Cressman in that affirmation, that
no response of any opt-in Plaintiff who had been served, including Schaefer, with
Defendants’ discovery requests had been withheld by Plaintiffs’ counsel was, on its face,
false because it was contradicted by Schaefer’s November 2012 telephone call to
Defendants. Id. ¶ 44 (speculating that when Cressman filed her affirmations in support
of reconsideration in August 2012, and in opposition to Defendants’ motion to compel on
February 13, 2012 (Doc. No. 297-2), Cressman had also received Schaefer’s “written
consent to opt-out,” a response which had not been provided to Defendants, i.e.,
withheld by Plaintiffs’ counsel, presumably Cressman). Defendants accordingly request,
in addition to Defendants’ request for costs, including attorneys fees, in connection with
Defendants’ motion, that “Plaintiffs’ counsel . . . be required to show cause why
additional sanctions should not be entered.” Id. ¶ 48. Although this request is
interposed in Defendants’ reply papers, specifically, in Defendants’ Molloy Reply

14

Declaration, and therefore need not be addressed by the court, see Ruggiero v. WarnerLambert Co., 424 F.3d 249, 252 (2d Cir. 2005) (district court has discretion to consider
argument first raised in reply papers), because Defendants’ request invokes the court’s
responsibility to assure attorney compliance, see Emle Industries, Inc. v. Patentex, Inc.,
478 F.2d 562, 565 (2d Cir. 1973) (“even an appearance of [ethical] impropriety [by an
attorney] requires prompt remedial action by the court’), the court will consider it.
Accordingly, Plaintiffs’ counsel’s response to Defendants’ request for such additional
sanctions shall be filed within 20 days; Defendants’ reply shall be filed within 10 days
thereafter. Oral argument shall be at the court’s discretion.

CONCLUSION
Based on the foregoing, Defendants’ motion to dismiss with prejudice (Doc. No.
394) should be GRANTED in part, and DENIED in part. Plaintiffs’ counsel’s motion to
withdraw (Doc. No. 396) is DISMISSED.
Respectfully submitted as to Defendants’
Motion to Dismiss
/s/ Leslie G. Foschio
_________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
SO ORDERED as to
Plaintiffs’ Counsel’s Motion
to Withdraw
/s/ Leslie G. Foschio
_________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: May 21, 2013
Buffalo, New York
15

Pursuant to 28 U.S.C. §636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the
Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension
of such time waives the right to appeal the District Court's Order. Thomas v. Arn,
474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.
1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys
for the Plaintiffs and the Defendants.
SO ORDERED.
/s/ Leslie G. Foschio
_________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE

DATED:

May 21, 2013
Buffalo, New York

16