Hughes et al v. Gulf Interstate Field Services, Inc.
Filing
95
REPORT AND RECOMMENDATION re 75 Order to Show Cause: It is RECOMMENDED that the Court DISMISS the claims of opt-in Plaintiffs Mark Cameron and Herman Liggett with prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Signed by Magistrate Judge Elizabeth Preston Deavers on 12/9/2015. (mas) Modified event on 12/9/2015 (mas).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TOM HUGHES, et al.,
Plaintiffs,
Civil Action 2:14-cv-432
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers
v.
GULF INTERSTATE FIELD
SERVICES, INC.,
Defendant.
REPORT AND RECOMMENDATION
This matter is before the United States Magistrate Judge for a Report and
Recommendation on the Court’s October 15, 2015 Show Cause Order (ECF No. 75), Opt-In
Plaintiffs Herman Liggett’s and Mark Cameron’s Response (ECF No. 80), and Defendant’s
Reply (ECF No. 85). For the reasons that follow, it is RECOMMENDED that the Court
DISMISS the claims of opt-in Plaintiffs Mark Cameron and Herman Liggett with prejudice for
failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
I.
On June 26, 2015, the Court held a telephonic discovery conference regarding the failure
of a number of opt-in Plaintiffs to participate in discovery in this action. In the Court’s June 29,
2015 Order memorializing the conference, the Court ordered the opt-in Plaintiffs to respond to
the outstanding interrogatories and document requests on or before July 13, 2015, and explicitly
advised opt-in Plaintiffs that “failure to comply with this extended deadline could result in
dismissal for failure to prosecute.” (ECF No. 58 at 1.) At a follow-up telephonic discovery
conference on October 15, 2015, Plaintiffs’ counsel reported that despite numerous attempts, he
had been unable to make contact with opt-in Plaintiffs Herman Liggett and Mark Cameron,
individuals who have neither been deposed nor provided discovery responses. The Court
memorialized these representations in its October 15, 2015 Order and Show Cause Order and
further ordered Herman Liggett and Mark Cameron to show cause within fourteen days why the
Court should not dismiss them pursuant to Rule 41(b) for failure to prosecute. (ECF No. 75.)
In the Response to the Show Cause Order, Plaintiffs’ counsel represents that the failure
of Messrs. Liggett and Cameron to provide discovery responses “is due to the fact that Plaintiffs’
counsel has been unable to contact them to obtain the information necessary to prepare discovery
responses.” (Pls.’ Response 2, ECF No. 80.) Plaintiffs maintain that in the absence of
demonstrated prejudice, dismissal is unwarranted. Alternatively, Plaintiffs maintain that any
dismissal “should be without prejudice and the statute of limitations should be tolled for the
period that they were participants in this suit and for 60 days after dismissal.” (Id. at 4.)
In its Reply, Defendant asserts that under the circumstances presented in the instant
action, no lesser sanction than dismissal with prejudice is warranted. Defendant cites numerous
cases in which trial courts within the United States Court of Appeals for the Sixth Circuit have
dismissed opt-in plaintiffs with prejudice for failure to participate in discovery.
II.
The Court’s inherent authority to dismiss a plaintiff’s action with prejudice because of
his failure to prosecute is expressly recognized in Rule 41(b), which provides in pertinent part:
“If the plaintiff fails to prosecute or comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a
dismissal under this subdivision (b) . . . operates as an adjudication on the merits.” Fed. R. Civ.
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P. 41(b); Link v. Walbash R.R. Co., 370 U.S. 626, 629–31 (1962). “This measure is available to
the district court as a tool to effect management of its docket and avoidance of unnecessary
burdens on the tax-supported courts and opposing parties.” Knoll v. AT & T, 176 F.3d 359, 63
(6th Cir. 1999).
The Sixth Circuit directs the district courts to consider the following four factors in
deciding whether to dismiss an action for failure to prosecute under Rule 41(b):
(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether
the adversary was prejudiced by the dismissed party’s conduct; (3) whether the
dismissed party was warned that failure to cooperate could lead to dismissal; and (4)
whether less drastic sanctions were imposed or considered before dismissal was
ordered.
Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008) (citing Knoll, 176
F.3d at 363). “‘Although typically none of the factors is outcome dispositive, . . . a case is
properly dismissed by the district court where there is a clear record of delay or contumacious
conduct.’” Schafer, 529 F.3d at 737 (quoting Knoll, 176 F.3d at 363).
III.
Under the circumstances presented in the instant case, consideration of the foregoing
factors persuades the Undersigned to recommend dismissal of Messrs. Liggett’s and Cameron’s
claims with prejudice pursuant to Rule 41(b).
With regard to the first factor, Messrs. Liggett’s and Cameron’s counsel’s contention that
their failure to comply with the Court’s Order and participate in discovery was not willful or
their fault because counsel was unable to contact them is unavailing. Trial courts within this
Circuit have agreed that an opt-in plaintiff’s failure to respond to his counsel constitutes willful
conduct weighing in favor of dismissal. See, e.g., Oakes v. J.F. Bernard, Inc., No. 5:11-cv-1006,
2012 WL 3552651, at *2 (N.D. Ohio Aug. 1, 2012) (dismissing opt-in plaintiff pursuant to Rule
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41(b) with prejudice for failure to provide discovery, reasoning that the opt-in Plaintiff “is at
fault, at a minimum, for failing to maintain contact with his attorney so that he could stay
informed regarding his case”); Williams v. Le Chaperon Rouge, No. 1:07-cv-829, 2008 WL
2074039, at *1–2 (N.D. Ohio May 14, 2008) (dismissing opt-in plaintiff pursuant to Rule 41(b)
with prejudice for failure to provide discovery, characterizing the opt-in plaintiffs’ failure
respond to discovery as “willful” where they failed to respond to several letters and calls from
their attorneys); Doornbos v. Pilot Travel Centers, LLC, No. 3:05-cv-428, 2008 WL 4764334, at
*3 (E.D. Tenn. Oct. 27, 2008) (dismissing opt-in plaintiffs pursuant to Rule 41(b) with prejudice
for failure to provide discovery where counsel sent repeated notices regarding the discovery,
finding that the opt-in plaintiffs “neglected their duties as participants in [the] litigation” and that
“any failure to receive [the discovery notices] is a result of [the opt-in plaintiffs’] failure to keep
their counsel informed of their current contact information”); see also Morales v. Farmland
Foods, Inc., No. 8:08-cv-504, 2011 WL 7077232, at *5 (D. Neb. Dec. 15, 2011) (collecting cases
in which courts have dismissed opt-in plaintiffs with prejudice in FLSA cases where the opt-in
plaintiffs failed to respond to discovery in violation of a court order, reasoning “[t]here is
nothing in the nature of collective actions or in the spirit of the FLSA that would allow plaintiffs
to flout their individual discovery obligations. When the refusal comes following notice and a
court order, absent some extraordinary circumstances, it can be described as nothing other than
willful or intentional” (internal quotation marks and citations omitted)).
Here, as reflected above, Plaintiffs’ counsel represented that numerous attempts were
made to contact Messrs. Liggett and Cameron in an effort to obtain the information necessary to
comply with the Court’s Order that the opt-in Plaintiffs respond to the outstanding discovery.
Thus, the fault lies not with counsel, who made repeated attempts, but rather with Messrs.
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Liggett and Cameron, who have willfully failed to respond to their attorneys’ requests and
neglected their duties as participants in this litigation. Accordingly, the first factor weighs in
favor of dismissal of their claims with prejudice pursuant to Rule 41(b).
The second factor, prejudice, also weighs in favor of dismissal. As Defendant points out,
Liggett actively participated in the case before written discovery was served by signing a
declaration that was filed in support of plaintiffs motion for class and conditional certification.
(Liggett Decl. ECF No. 31-5.) Significantly, the Court relied in part upon that Declaration in
granting conditional certification. (See July 7, 2015 Opinion and Order 8, ECF No. 59.) In
addition, Defendant has already filed its Motion for Decertification. (ECF No. 90.) Under these
circumstances, the Undersigned agrees with Defendant that Messrs. Liggett’s and Cameron’s
failure to participate in discovery prejudices Defendant.
The third factor likewise weighs in favor of dismissal of Messrs. Liggett’s and
Cameron’s claims with prejudice pursuant to Rule 41(b) given that the Court expressly warned
in its June 29, 2016 Order that the failure to respond to the outstanding discovery before the
extended deadline could result in dismissal for failure to prosecute. (ECF No. 58 at 1.)
Finally, the Court finds that under the circumstances here, no alternative sanction would
protect the integrity of the pretrial process. As discussed above, Messrs. Liggett and Cameron
failed to timely respond to written discovery and subsequently failed to comply with the Court’s
Order directing them to respond to outstanding discovery within the extended deadline.
Moreover, in response to the opportunity to show cause why their claims should not be
dismissed with prejudice for want of prosecution, their counsel offered only that he has been
unable to contact them despite repeated attempts. As discussed above, such an explanation falls
short and constitutes willful conduct on behalf of Messrs. Liggett and Cameron weighing in
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favor of dismissal.
IV.
In sum, for the reasons set forth above, it is RECOMMENDED that the Court DISMISS
the claims of opt-in Plaintiffs Mark Cameron and Herman Liggett WITH PREJUDICE
pursuant to Rule 41(b).
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
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omitted)).
Date: December 9, 2015
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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