Smith v. Generations Healthcare Services LLC

Filing 67

ORDER granting in part and denying in part 61 Motion to Certify Conditional Class Certification and for Dismissal of Opt-In Plaintiffs, and GRANTING as to decertifying the class and DENYING as to dismissing Plaintiffs Climer and Hollins. Signed by Judge Algenon L. Marbley on 11/19/2018. (cw)

Case: 2:16-cv-00807-ALM-CMV Doc #: 67 Filed: 11/19/18 Page: 1 of 5 PAGEID #: 718

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

DEANGELA SMITH,

Plaintiff,
Case No. C2-16-CV-0807
v.

JUDGE ALGENON L. MARBLEY
GENERATIONS HEALTHCARE

SERVICES, LLC, et al.

Magistrate Judge Vascura

Defendants.
OPINION & ORDER

This matter is before the Court on Defendants' Motion to Decertify Conditional Class
Certificationand for Dismissal ofOpt-In Plaintiffs,Jessica Climer and Charles Hollins. (ECF No.
61). For the following reasons, Defendants' Motion is GRANTED IN PART and DENIED IN
PART.

I.

BACKGROUND

Plaintiff DeAngela Smith worked as a home health aide for Generations Healthcare

Services, LLC and Generations Too, LLC. She alleges that the Defendants did not pay her
overtime in violation of the Department of Labor's 2015 rule that "made overtime mandatory for
home health aides." (ECF No. 43 at 2).
Plaintiff Smith filed this suit as a collective action under the Fair Labor Standards Act

("FLSA") and a class action for violation of several similar state provisions on August 19,2016.
(ECF No. 1). Plaintiff Smith moved to certify the class on December 15, 2016. (ECF No. 19).

This Court heard argument on the Motion to Certify Class on June 29, 2017 and subsequently
certified the class on July 11, 2017. (ECF No. 46). In the meantime, Plaintiff filed her First

Case: 2:16-cv-00807-ALM-CMV Doc #: 67 Filed: 11/19/18 Page: 2 of 5 PAGEID #: 719

Amended Complaint on January 6, 2017 (ECF No. 24) and her Second Amended Complaint on
June 30,2017 (ECF No. 43).

Defendants filed this Motion to Decertify the Class and Dismiss the Opt-In Plaintiffs on
March 13,2018. (ECF No. 61). Plaintiff filed a Response on April 3,2018, and Defendants filed
a Reply on April 17,2018. (ECF Nos. 62,63).
II.

LAW & ANALYSIS

Defendants have moved to decertify the class. Defendants argue that when the opt-in
period closed, two plaintiffs, Jessica Climer andCharles Hollins, had opted in to the suit. Plaintiff

Smith does notdispute these facts and does not oppose decertifying theclass. Because theparties
agree to thismatter and three individuals would be an insufficient number to support a class under
Federal Rule of Civil Procedure 23(A), Defendants' Motion is hereby GRANTED. Because the
parties have agreed to decertification, this Court does not decide whether three individuals are

enough to support an FLSA collective action under §216(b), which imposes requirements separate
from class requirements under Federal Rule of Civil Procedure 23.
Defendants have also moved to dismiss Plaintiffs Jessica Climer and Charles Hollins from

this suit. PlaintiffSmith acknowledges "counsel's difficulty in making or maintaining contact
with these opt-in Plaintiffs." (ECF No. 62 at 2). Plaintiff Smith has not specifically responded to

Defendants' Motion to Dismiss these Plaintiffs, only stating that "Plaintiff Smith cannot oppose
what Defendants seek" because of Plaintiffs Climer and Hollins "failing to cooperate" and
agreeing "that a party's failure to appear at depositions obviously constitutes good grounds for
some kind of sanction." (Id. at 1-2).

This Court may dismiss plaintiffs for failure to prosecute their claims, failure to "comply
with the Federal Rules of Civil Procedure, or [failure to] comply with a court order." Oakes v.

Case: 2:16-cv-00807-ALM-CMV Doc #: 67 Filed: 11/19/18 Page: 3 of 5 PAGEID #: 720

J.F. Bernard, Inc., 2012 WL 3552651, at *1 (N.D. Ohio Aug. 1, 2012) (citing Fed. R. Civ. P.
41(b); Consolidation Coal Co. v. Gooding, 703 F.2d 230,232 (6th Cir. 1983)). But "dismissal of

a claim for failure to prosecute is a harsh sanction which the court should order only in extreme

situations showing a clear record of contumacious conduct by the plaintiff." Schafer v. City of
Defiance PoliceDept., 529 F.3d 731,736 (6th Cir. 2008). Whetherto dismissa claim is informed
by four factors:

(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.

Stough v. Mayville Community Schools, 138F.3d 612,615 (6th Cir. 1998).
Whetherthe party was givennotice is a "key consideration." Stough, 138F.3dat615. The

SixthCircuit"has repeatedly 'reversed districtcourtsfor dismissing casesbecause litigants failed
to appear or to comply with pretrial orderswhen the districtcourtsdid not put the derelict parties
on noticethat furthernoncompliance wouldresult in dismissal.'" Wu v. T. W. Wang, Inc., 420 F.3d
641,644 (6th Cir. 2005) (quoting Harris v. Callwood, 844 F.2d 1254,1256 (6th Cir. 1988)). "[l]n

the absence of noticethat dismissal is contemplated a district court should impose a penaltyshort
ofdismissal unless the derelict party has engaged in 'bad faith or contumacious conduct.'" Harris,
844 F.2d at 1256.

Defendants' reliance on Jourdan v. Jabe, Murray v. Target Dep 't Stores, and Oakes v.
J.F.Bernard, Inc. is misplaced as those cases are distinguishable. In Jourdan, the party had
requested two extensions and subsequently missed "court deadlines of which he was well-aware"

and "comprehended their significance." Jourdan v. Jabe, 951 F.2d 108,110 (6th Cir. 1991). Here,
neither Plaintiff Smith nor Defendants provide evidence of whether Plaintiffs Climer and Hollins
were "well-aware" of court deadlines. The parties negotiated between themselves for extensions
3

Case: 2:16-cv-00807-ALM-CMV Doc #: 67 Filed: 11/19/18 Page: 4 of 5 PAGEID #: 721

of time in contacting Plaintiffs Climer and Hollins. (ECF No. 61 at 5). Plaintiff Smith intimates
that at leastone Plaintifffailed to appear for a deposition. (ECF No. 62 at 2). But it is not clear
thatPlaintiffs Climer andHollins were aware thattheywereout of alignment with court deadlines
or understood the importance of appearing at depositions.

Jourdan aside, far more courtshave dismissed parties or cases for failure to participate in
discovery but done so after giving notice to the dismissed plaintiffor his counsel. In Oakes, the

court hadgiven notice to plaintiffs counsel thatif the plaintiffdid not"comply with his discovery
obligations," his claims might be dismissed. Oakesv. J.F.Bernard, Inc., No. 5:1l-CV-1006,2012
WL 3552651, at *2 (N.D. Ohio Aug. 1, 2012). And in Murray, the district court that dismissed

the case for failure to appear for a deposition had previously issued an "order directing [Murray]
to respond to defendant's motion to dismiss," and the Sixth Circuit noted that the district "court
was plainly considering dismissal when it extended the time for her response to the defendant's
motion." Murray v. Target Dep 'tStores, 56 F. App'x 246,246-47 (6th Cir. 2003) (unpublished).
See also Williams v. Le Chaperon Rouge, No. l:07-CV-829, 2008 WL 2074039, at *l-2 (N.D.

Ohio May 14, 2008) (plaintiffs "advised in writing over two months ago that they would not be
able to continue as plaintiffs if they failed to contact counsel" and plaintiffs communicated "that
they did not want to remain plaintiffs"); Komaromy v. City ofCleveland, 232 F.R.D. 590, 592-93
(N.D. Ohio 2006) ("In addition, the plaintiff has been cautioned by the Court concerning the
ramifications of failures to comply with Court orders."). Even in Morales v. Farmland Foods,

Inc., which, as a magistrate judge's recommendation to the District Court of Nebraska, is not

binding authority on this Court, the party was given "a warning about the possibility ofdismissal."
Morales v. Farmland Foods, Inc., No. 8:08CV504, 2011 WL 7077232, at *6 (D. Neb. Dec. 15,
2011).

Case: 2:16-cv-00807-ALM-CMV Doc #: 67 Filed: 11/19/18 Page: 5 of 5 PAGEID #: 722

This Court has not previously issued any directive to the Plaintiffs that would constitute

noticethat their failure to participate in discovery would result in dismissal. As such, Defendants'

Motion to Dismiss is DENIED. Plaintiffs Climer and Hollins are put on notice, however, that

they must comply with proper discovery requirements and that further failure torespond toproper
discovery could result in sanctions, including dismissal.

In Plaintiff Smith's response to Defendants' Motion to Decertify and Dismiss Plaintiffs,
Plaintiff raised the possibility that Defendants may not have given notice to the true number of
potential class members. Plaintiff has not requested any relief on this matter, however, and "a

reply brief is not the properplaceto raisean issuefor the firsttime." Versatile Helicopters v. City

of Columbus, 879 F. Supp. 2d 775, 779 (S.D. Ohio 2012) (quoting United Tel. Co. of Ohio v.
Ameritech Servs., Inc., No. 2:10-cv-249, 2011 U.S. Dist. LEXIS 1746, at *3 n.2 (S.D. Ohio Jan.
7,2011)). As such, this Court does not address Plaintiffs concern here.
III.

CONCLUSION

For the foregoing reasons, Defendants' Motion is GRANTED as to decertifying the class
and DENIED as to dismissing Plaintiffs Climer and Hollins.
IT IS SO ORDERED.

s/Algenon L. Marblev
ALGENON L. MARBLEY

United States District Court Judge
DATED: November 19,2018