Scott v. Family Dollar Stores, Inc.

Filing 31

ORDER granting Motion Dismiss, dismissing Plaintiffs Victor Tovar, Abel Lopez and Evelyn Hernandez, directing entry of judgment (Pursuant to Document #763 in MDL Master Docket 3:08-md-1932). Signed by Senior Judge Graham Mullen on 1/23/2012. (Attachments: # 1 Clerk's Judgment) (tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:08MD1932-MU
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IN RE FAMILY DOLLAR FLSA
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LITIGATION
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Concerning Scott v. Family Dollar Stores :
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ORDER

This matter is before the Court on Plaintiffs’ Motion to Dismiss (Doc. No. 751) and
Plaintiff’s Opposition1 (Doc. No. 754). For the reasons stated herein, Plaintiffs’ Motion to Dismiss
is GRANTED, however such dismissal will be with prejudice.
In a one paragraph motion, Plaintiffs Victor Tovar, Abel Lopez and Evelyn Hernandez
request that this Court dismiss their claims without prejudice pursuant to Federal Rule of Civil
Procedure 41(a)(2). Family Dollar opposes Plaintiffs’ request that they be dismissed without
prejudice.
This case was originally filed in the Northern District of Alabama on January 3, 2008.
Family Dollar answered the Complaint on February 21, 2008. Abel Lopez and Evelyn Hernandez
filed their notices of consent to become party plaintiffs on October 27, 2010 and Victor Tovar filed
his notice of consent on November 10, 2010. (Doc. Nos 547 and 548). On August 24, 2011, Family

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Plaintiffs reply brief was due on or before January 20, 2012; however no such brief was
filed with the Court.
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Dollar served interrogatory and document requests on Tovar, Lopez and Hernandez. ( Doc. No. 754,
Ex. 1). After receiving an extension of time to respond, Plaintiffs served general objections to
Family Dollar’s interrogatories on September 23, 2011, stating that they would provide responses
as they are “prepared, reviewed and executed.” (Doc. No. 754, Ex. 3). Plaintiffs have not otherwise
responded to Defendant’s discovery requests. Family Dollar has responded to discovery requests
propounded by Tovar, Lopez and Hernandez on November 1, 2011. (Doc. No. 654, Doc. No. 4).2
On December 9, 2011, Plaintiffs were noticed for deposition to take place on January 11-13, 2012.
(Doc. No. 754, Ex. 5). On January 6, 2012, Plaintiffs filed the instant motion to dismiss stating only
that they “no longer wish to pursue their claims.” (Doc. No. 751).
Rule 41(a)(2) provides that a Court may dismiss an action at the Plaintiff’s request “on terms
that the court considers proper.” Fed. R. Civ. P. 41(a)(2). In deciding whether to dismiss without
prejudice under Rule 41(a), “a district court should consider factors such as the opposing party’s
effort and expense in preparing for trial, excessive delay and lack of diligence on the part of the
movant, and insufficient explanation of the need for a voluntary dismissal, as well as the present
stage of litigation.” Howard v. Inova Health Care Servs., 302 F. App’x 166, 178-179 (4th Cir. 2008)
(internal quotations and citations omitted).
Plaintiffs’ case is part of a multi-district litigation case including approximately one hundred
plaintiffs in approximately sixteen separate cases. The discovery cutoff in this case is January 31,
2012 – less than 10 days from now. This Court has granted fourteen of Defendant’s summary
judgment motions. To date, one of those orders has been upheld on appeal by the Fourth Circuit

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Family Dollar’s responses appear to consist of general objections.
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Court of Appeals and several others are pending on appeal. See Grace v. Family Dollar Stores Inc.,
637 F.3d 508 (4th Cir. 2011). Family Dollar has expended time and resources on this case including
preparing for Plaintiffs’ depositions, pursuing overdue discovery responses, investigating Plaintiffs’
individual claims and preparing a defense to such individual claims, including answering individual
discovery requests, albeit such responses appear to consist only of general objections. It appears that
Plaintiffs have exhibited no diligence in pursuing their claims as they have failed to respond to
discovery propounded by Family Dollar in August, 2011. Plaintiffs seek to dismiss their claims
without prejudice offering no sufficient explanation for their request other than that they “no longer
wish to pursue their claims.” (Doc. No. 751).
Considering the late stage on this litigation, the fact that Plaintiffs have exhibited little or no
diligence in pursuing their claims and that Plaintiffs have offered no sufficient explanation for their
need for a voluntary dismissal, this Court will allow the motion for voluntary dismissal, however,
such dismissal will be with prejudice. Therefore, Plaintiffs’ Motion to Dismiss is GRANTED in
part and denied in part.
THEREFORE IT IS ORDERED that:
(1)

Plaintiffs’ Motion to Dismiss (Doc. No. 751) is GRANTED;

(2)

Plaintiffs’ request that the dismissal be without prejudice is denied;

(3)

Plaintiffs Tovar, Lopez and Hernandez’s claims against Family Dollar are dismissed
with prejudice;

(4)

The Court finds that there is no just reason to delay entry of final judgment for
Family Dollar with respect to Plaintiffs Tovar, Lopez and Hernandez

SO ORDERED.
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Signed: January 23, 2012

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