Allen et al v. Cogent Communications, Inc.
Filing
103
MEMORANDUM OPINION re: 93 MOTION to Dismiss Opt-In Plaintiffs Omar Burgos, John Murphy, and Tasha Scott by Cogent Communications, Inc. (See Memorandum Opinion For Details). Signed by District Judge James C. Cacheris on 1/15/15. (nhall)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
MARK RYAN ALLEN, et al.,
Plaintiffs,
v.
COGENT COMMUNICATIONS, INC.,
Defendant.
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M E M O R A N D U M
1:14cv459(JCC/TRJ)
O P I N I O N
This matter is before the Court on Defendant Cogent
Communications, Inc.’s (“Defendant” or “Cogent”) Motion to
Dismiss Opt-in Plaintiffs Omar Burgos, John Murphy, and Tasha
Scott.
[Dkt. 93.]
For the following reasons, the Court will
deny the motion.
I.
Background
Facts will not be recounted at length as familiarity
with them is presumed.
As relevant here, on April 25, 2014
twenty-two named plaintiffs filed this action against Cogent
alleging that it failed to pay them overtime compensation in
violation of the Fair Labor Standards Act (“FLSA”). 1
(Am. Compl.
1
In reality, this litigation, in one form or another, has been active for
three years. In December 2011, a group of Defendant’s sales account managers
filed suit against Defendant to recover unpaid overtime wages under the FLSA
in the District Court for the Southern District of Texas. Lagos v. Cogent
Commc’ns, Inc., No. H-11-4523 (S.D. Tex.). In Lagos, plaintiffs asserted the
same claims they do here and Defendant presented the same defense. (8/28/14
1
[Dkt. 30] ¶¶ 1-3.)
Plaintiffs claim that Defendant improperly
classified them as exempt employees under the FLSA.
Id.
This
Court conditionally certified a collective action on Plaintiffs’
motion.
(8/28/14 Order [Dkt. 46].)
After conditional
certification, some of the plaintiffs accepted settlement
offers, which this Court approved.
[Dkt. 77.]
Others of the
opt-in plaintiffs were voluntarily dismissed from the case
pursuant to the parties’ joint motion to dismiss certain
plaintiffs without prejudice.
[Dkt. 92.]
Cogent has filed the instant motion, arguing that the
Court should dismiss three opt-in plaintiffs – Omar Burgos
(“Burgos”), John Murphy (“Murphy”), and Tasha Scott (“Scott”) –
because they failed to appear for depositions or make themselves
available for depositions, allegedly causing Cogent to incur the
costs of the untaken depositions and “preventing Cogent from
obtaining critical information regarding Opt-In Plaintiffs’
claims.”
(Def.’s Mot. [Dkt. 93] at 1.)
Plaintiffs oppose
dismissal as the appropriate remedy for the alleged discovery
violations.
(Pls.’ Opp. [Dkt. 97] at 2, 5.)
on January 12, 2015.
[Dkt. 48.]
Discovery closed
Having been fully briefed and
argued, this motion is ripe for disposition.
Mem. Op. [Dkt. 45] at 2.) The Court conditionally certified a nationwide
collective action. (Id.) Following discovery, Defendant filed a motion to
decertify the collective action, arguing too many differences existed among
potential plaintiffs. (Id.) The Court granted Defendant’s motion and
decertified the collective action. (Id.)
2
II. Legal Standard
In appropriate cases, a court may order sanctions if a
party fails to appear for a deposition.
37(d)(1)(A).
Fed. R. Civ. P.
A range of sanctions is available to a court,
including dismissing the action.
Fed. R. Civ. P. 37(d)(3); see
also Fed. R. Civ. P. 37(b)(2)(A)(v).
sanction to be invoked lightly.”
“[D]ismissal is not a
Taylor v. Oak Forest Health
and Rehab., LLC, 302 F.R.D. 390, 393 (M.D.N.C. Sept. 9, 2014)
(citing Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989)).
Before using dismissal as a sanction, a court should consider
all relevant factors, including: “(i) the degree of personal
responsibility of the plaintiff; (ii) the amount of prejudice
caused the defendant; (iii) the
existence of a history of
deliberately proceeding in a dilatory fashion; and (iv) the
existence of a sanction less drastic than dismissal.”
Id. at 393-94 (citing Ballard, 882 F.2d at 95).
These factors
are non-exclusive, and courts are also free to consider other
factors, like whether there is a need for deterrence, whether
there has been a previous warning about following a court order,
and whether the non-complying party acted in good faith.
Id.
III. Analysis
At the outset, it should be noted that Cogent’s motion
fails to adhere to Local Rule 37(E).
3
That rule states:
Counsel shall confer to decrease, in every
way possible the filing of unnecessary
discovery
motions.
No
motion
concerning
discovery matters may be filed until counsel
shall
have
conferred
in
person
or
by
telephone to explore with opposing counsel
the possibility of resolving the discovery
matters in controversy. The Court will not
consider any motion concerning discovery
matters unless the motion is accompanied by
a statement of counsel that a good faith
effort has been made between counsel to
resolve the discovery matters at issue.
E.D. Va. Local Rule 37(E).
Nowhere in Cogent’s motion or its
memorandum in support does any such statement of counsel appear. 2
Furthermore, this motion was filed on December 24, 2014.
There
was still ample time remaining before the close of discovery to
(1) confer with counsel to resolve this dispute and (2) to
conduct any depositions.
See Flame S.A. v. Indus. Carriers,
Inc., No. 2:13cv658, 2014 WL 4809842, at *5 (E.D. Va. Sept. 25,
2014) (“Rushing to the Court with a discovery dispute before the
other party even is required to provide its discovery responses
evidences the lack of a good faith effort to resolve discovery
disputes without Court intervention, as is required by this
Court's rules.
As a result, Flame's premature resort to Court
intervention needlessly involved the Court in an unnecessary
discovery dispute.”).
2
The Federal Rules of Civil Procedure also mandate a similar certification.
“A motion for sanctions for failing to answer or respond must include a
certification that the movant has in good faith conferred or attempted to
confer with the party failing to act in an effort to obtain the answer or
response without court action.” Fed. R. Civ. P. 37(d)(1)(B).
4
Nonetheless, in the interest of judicial economy the
Court has considered the merits of the motion and finds that
Cogent has not met the high burden to show dismissal with
prejudice is appropriate here.
The Court notes that Plaintiffs’
counsel has represented that Burgos and Murphy no longer wish to
prosecute this case.
(Pls.’ Opp. at 2.)
Instead, Plaintiffs’
counsel has requested and continues to request Cogent’s consent
to dismiss their claims without prejudice.
(Id.)
Presumably,
this is why Burgos and Murphy did not attend their scheduled
depositions in mid-December, though their opposition is silent
as to the actual reason for non-appearance. 3
Without commenting
on the proprietary of this strategy, Cogent was not so
prejudiced as to warrant dismissal with prejudice of these
Plaintiffs. 4
Therefore, the Court will dismiss Burgos and Murphy
without prejudice from this case. 5
3
The Court notes that without any proffered explanation, it assumes that
Burgos and Murphy’s failure to appear was entirely within their control.
Therefore, the first factor, the degree to which it is the plaintiff’s
responsibility for failing to appear, weighs in favor of Cogent.
4
It appears that defense counsel was in the Washington, D.C. metro area to
conduct depositions of all opt-in plaintiffs, not just Burgos and Murphy.
Cogent’s counsel waited approximately one hour past the respective scheduled
deposition times for Burgos and Murphy to appear. (Def.’s Mem. in Supp., Ex.
C.) To be sure, there were costs associated with waiting, but the imposition
was not so great as to merit the extreme step of dismissing Burgos and Murphy
with prejudice.
5
At the motion hearing, Plaintiffs’ counsel represented that it would be
unlikely for Burgos and Murphy to re-file this case given that this
litigation affords them an efficient opportunity to present their claims.
Recognizing that a dismissal without prejudice does indeed allow Burgos and
Murphy to re-file their claims at a later date, the Court is satisfied that
dismissal without prejudice is the appropriate resolution here.
5
Additionally, dismissal of Scott is not warranted on
these facts.
Plaintiffs’ counsel advised defense counsel that
Scott lives and works out of state and has limited means.
Therefore, she would require an accommodation to have her
deposition taken by telephone, Skype, Facetime, or a similar
electronic method.
(Pls.’ Opp. at 3.)
Though this warning was
delivered on December 12, during the end of the agreed
deposition period, it was given a month before discovery closed.
This left ample opportunity for the parties to meet and confer
in person or telephonically to see if they could resolve the
dispute or to file the appropriate discovery motion.
However, as an opt-in plaintiff, Scott is expected to
appear for her deposition in the forum where the lawsuit is
initiated absent extreme hardship.
See LaFleur v. Dollar Tree
Stores, Inc., No. 2:12cv363, Mem. Op. [Dkt. 422] at 4 (E.D. Va.
Oct. 7, 2013) (collecting cases).
As another district court has
noted:
The plaintiff, on the other hand, has not
only taken the volitional step of initiating
the lawsuit or the claim, he or she stands
to gain a substantial monetary sum and/or
other beneficial relief as a result of suing
a defendant. A plaintiff, therefore, cannot
invoke the mere fact [of] inconvenience or
expense as a legitimate reason to refuse to
appear and submit himself or herself to
questioning by defendant regarding the basis
for the claim.
6
United States v. Rock Springs Vista Dev., 185 F.R.D. 603, 604
(D. Nev. 1999).
In this case, there are no affidavits or other
documentation to support Scott’s hardship claim.
The “bare
assertion of counsel” that Scott’s financial condition and work
responsibilities prevent her from traveling to be deposed is not
sufficient to overcome the requirement that she appear in-person
for her deposition.
See Rock Springs Vista Development, 185
F.R.D. at 603 (denying intervenors’ motion to appear
telephonically for depositions because there was no showing of
extreme hardship to depart from the normal rule of in-person
depositions in the forum).
Therefore, this Court will order
Scott to appear for a deposition in the Washington, D.C. metro
area within thirty days (30) from the date of this Memorandum
Opinion and accompanying Order.
As to Cogent’s demand for attorney’s fees and costs
associated with Burgos and Murphy’s non-appearance at their
depositions, Federal Rule of Civil Procedure 37(d)(3) provides:
(3)
Types
of
Sanctions.
Sanctions
may
include any of the orders listed in Rule
37(b)(2)(A)(i)–(vi).
Instead
of
or
in
addition to these sanctions, the court must
require the party failing to act, the
attorney advising that party, or both to pay
the
reasonable
expenses,
including
attorney’s fees, caused by the failure,
unless
the
failure
was
substantially
justified or other circumstances make an
award of expenses unjust.
7
The Court will deny Cogent’s request on grounds that
it would be unjust to award expenses here.
First, the Court has
dismissed Burgos and Murphy from the case without prejudice.
The expenses would likely dwarf any potential recovery they
might have received had they remained in the case.
Second,
Cogent failed to meet and confer with opposing counsel to
resolve this discovery dispute before bringing it to the Court’s
attention as required by E.D. Va. Local Rule 37(E).
As such, it
would be unjust to award expenses when Cogent has violated this
Court’s Local Rules.
Therefore, the Court will deny Cogent’s
request for reasonable expenses.
IV. Conclusion
For the foregoing reasons, the Court will deny
Cogent’s motion.
An appropriate order will follow.
January 15, 2015
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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