                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


PEGGY DINKEL, VALARIE GADSON,
AND DEIDRE BECKFORD, for themselves
and all others similarly situated

            Plaintiffs,
                                                         Civil Action No. 11-0998 (CKK)
       v.

MEDSTAR HEALTH INC. AND
WASHINGTON HOSPITAL CENTER

            Defendants.


                                 MEMORANDUM OPINION
                                     (June 26, 2014)

       Plaintiffs bring this action against MedStar Health, Inc. and Washington Hospital Center

(collectively “Defendants”), claiming that Defendants violated the Fair Labor Standards Act

(“FLSA”), 29 U.S.C. §§ 201 et seq., and the District of Columbia Minimum Wage Act, D.C.

Code §§ 32-1001 et seq., by failing to compensate them for “meal break” and “uniform

maintenance” work. Presently before the Court is Defendants’ [97] Motion to Dismiss with

Prejudice Plaintiffs that Failed to Fulfill Their Discovery Obligations. Upon consideration of the

pleadings 1, the relevant legal authorities, and the record as a whole, the Court GRANTS IN

PART and DENIES IN PART Defendants’ [97] Motion to Dismiss With Prejudice Plaintiffs

That Failed to Fulfill Their Discovery Obligations. Specifically, the Court DENIES WITHOUT

       1
           Defs.’ Mot. to Dismiss With Prejudice Pls. That Failed to Fulfill Their Discovery
Obligations, ECF No. [97] (“Defs.’ Mot.”); Defs.’ Mem. in Supp. of Mot. to Dismiss with
Prejudice Pls.’ That Failed to Fulfill Their Discovery Obligations, ECF No. [97-4] (“Defs.’
Mem.”); Pls.’ Mem. of Law in Opp’n to Defs.’ Mot. to Dismiss With Prejudice Pls.’ That Failed
to Fulfill Their Discovery Obligations, ECF No. [100-2] (“Pls.’ Opp’n”); Defs.’ Reply mem. in
Supp. of Mot. to Dismiss With Prejudice Pls.’ That Failed to Fulfill Their Discovery Obligations,
ECF No. [102] (“Defs.’ Reply”).


                                                1
PREJUDICE Defendants’ request to dismiss with prejudice members of the Uniform

Maintenance Class who have failed to respond to Defendants’ interrogatories or appear as

scheduled for depositions. These Plaintiffs will be provided one final opportunity to show cause

why their claims should not be dismissed. The Court GRANTS Defendants’ request to dismiss

members of the Meal Break Class who failed to satisfy their discovery obligations, as Plaintiffs

have conceded this portion of the motion.        The Court DENIES WITHOUT PREJUDICE

Defendants’ request for attorney’s fees, and would be willing to consider a renewed request for

these fees at a later date.

                                       I. BACKGROUND

        On July 29, 2012, the Court granted in part and denied in part Plaintiffs’ motion for

conditional certification, conditionally certifying this case as a collective action with respect to

two of Plaintiffs’ claims. See Dinkel v. MedStar Health, Inc., 880 F.Supp.2d 49 (D.D.C. 2012).

With respect to Plaintiffs’ uniform maintenance claim, the Court conditionally certified a

collective action covering all non-exempt, hourly employees who worked at any of nine

identified MedStar Health, Inc. hospitals in any workweek from May 26, 2008 to July 29, 2012

(the “Uniform Maintenance Class”). Id. at 51. Regarding Plaintiffs’ meal break claim, the Court

conditionally certified a collective action covering all non-exempt hourly employees who work

or worked in WHC’s Emergency Department or 4NE Medical Cardiology Unit in any workweek

from May 26, 2008 to the present (the “Meal Break Class”). Id.

        By its January 9, 2013 [56] Order, the Court permitted Defendants to propound a limited

number of interrogatories on each member of the Uniform Maintenance Class, which then

totaled 455 members, concluding that such interrogatories were permissible to the extent

“narrowly targeted to elicit information relating to the threshold question as to whether class




                                                 2
members are similarly situated.” Order, ECF No. [56] at 4. Defendants argued, and the Court

agreed, that such individualized “discovery [was] essential for determining whether members of

this class are or are not similarly situated for purposes of class certification” and thus would be

necessary given Defendants’ stated intent to move to decertify the conditionally certified

Uniform Maintenance Class at a later, appropriate time. Id. at 2. Given these concerns, the

Court rejected Plaintiffs’ alternative proposal that Defendants be limited “to serving narrowly-

tailored interrogatories on no more than 35 randomly-selected class members.” Id.

        Subsequently, after providing Plaintiffs an opportunity to file specific objections to the

wording and substance of Defendants’ proposed interrogatories, in its February 8, 2013 [64]

Order, the Court permitted Defendants to propound all five of their proposed interrogatories on

each member of the Uniform Maintenance Class.             The Court again rejected “Plaintiffs’

conclusory and wholly unsubstantiated forecasting that ‘evidence from 455 Plaintiffs on uniform

maintenance is likely to be redundant, and, at a minimum, differ only as a matter of degree,

rather than kind.’” Order, ECF No. [64] at 6. The Court also discounted Plaintiffs’ argument

“that Defendants must necessarily have some of this information in their personnel files” finding

persuasive Defendants’ arguments that these interrogatories “will permit Defendants to compare

the opt-in class members’ response[s] to [their] own records and determine any discrepancies.”

Id. at 8-9.

        On July 9, 2013, Defendants filed a [68] Motion to Compel Discovery Responses,

seeking an order compelling (1) 303 opt-in Plaintiffs to provide full and complete answers to

Defendants’ interrogatories to Uniform Maintenance Class Members; and (2) 20 opt-in Plaintiffs

to provide full and complete responses and documents to Defendants’ requests for production of

documents to Meal Break Class Members. Defendants represented that on February 22, 2013, in




                                                3
accord with the Court’s [64] Order, they had served the Court-approved interrogatories on the

455 Uniform Maintenance Class Members and requests for production of documents on the 20

Meal Break Class Members. See Defs.’ Mot. to Compel Discovery Responses, ECF No. [68] at

1. Generally, discovery responses are due 30 days after service. However, Plaintiffs’ counsel

requested, and counsel for Defendants stipulated to, an extended deadline of April 26, 2013, for

written discovery responses. See Defs.’ Mem. in Supp. of Mot. to Compel Discovery Responses,

ECF No. [68-1] at 1. In their motion to compel, Defendants stated that while they had received

some of the required responses, the vast majority remained outstanding. Defs.’ Mot. to Compel

Discovery Responses, ECF No. [68] at 2. After providing Plaintiffs an opportunity to respond

and provide additional responses, the Court granted Defendants’ motion insofar as the Court

required “(1) the 292 opt-in Uniform Maintenance plaintiffs to provide full and complete

answers to Defendants’ interrogatories to Uniform Maintenance Class Members, which were

previously approved by this Court; and (2) the 15 opt-in Meal Break plaintiffs to provide full and

complete answers and documents responsive to Defendants’ requests for production of

documents to Meal Break Class Members.” See Minute Order (July 21, 2013). The Court again

rejected Plaintiffs’ argument that the partial discovery already provided was sufficient, noting

that this contention was “in brazen disregard of this Court's prior orders granting limited

individualized discovery in this matter.” Id. The Court ordered the parties to jointly file by July

24, 2013, “two proposed orders (one pertaining to the Uniform Maintenance Class; one

pertaining to the Meal Break Class), which shall be directed to those opt-in plaintiffs who have

not yet responded to Defendants' discovery requests, and which shall instruct them to so respond

within TWENTY-FIVE (25) days or risk dismissal of their claims.” Id. (emphasis added). The

Court further instructed Plaintiffs’ counsel to mail a copy of the relevant order to each class




                                                4
member who had not yet responded to Defendants’ discovery requests within three days of

approval of the Order. Id. On July 24, 2013, the Court approved the two proposed orders

instructing all-opt in class members who had not yet done so to provide the necessary discovery

responses. These orders further advised the opt-in Plaintiffs that “[f]ailure to provide document

request responses as required by this Order may result in dismissal from the lawsuit.”

       On February 18, 2014, Defendants filed the present [97] Motion to Dismiss with

Prejudice Plaintiffs that Failed to Fulfill Their Discovery Obligations. In their motion and

accompanying memorandum, Defendants state that they have still not received discovery

responses from a significant number of opt-in Plaintiffs. Defs.’ Mot. at 1-2; Defs.’ Mem. at 4.

Specifically, Defendants seek the dismissal of 171 members of the Uniform Maintenance Class

who failed to respond to the individual interrogatories as required by the Court’s Order. Defs.’

Reply at 3. Defendants also seek the dismissal of an unspecified number of Meal Break Class

members who have failed to respond to Defendants’ requests for the production of documents, as

required by the Court’s Order. Defs.’ Mot. at 2. In addition, Defendants seek the dismissal of

opt-in Plaintiffs in both the Uniform Maintenance Class and the Meal Break Class who failed to

appear for scheduled depositions. Id. at 1. On May 21, 2013, Defendants noticed 35 opt-in

Plaintiffs for deposition. Numerous opt-in Plaintiffs failed to attend their deposition while others

cancelled shortly before the deposition. Defs.’ Mem. at 4. Plaintiffs now seek the dismissal of

12 opt-in Plaintiffs, constituting members of both classes, who failed to appear for their

depositions. 2 Defs.’ Mot. at 1.

                                    II. LEGAL STANDARD



       2
          Defendants certify that, prior to filing the present motion for sanctions, they conferred
in good faith with Plaintiffs’ counsel in an effort to obtain the discovery sought without court
action, as required by Fed. R. Civ. P. 37(d)(1)(B). Defs.’ Mem. at 11.


                                                  5
       “The Federal Rules of Civil Procedure allow a court to impose sanctions for a party’s

failure to cooperate during the course of discovery.” Davis v. Dist. of Columbia Child & Family

Svcs. Agency, --- F.Supp.2d ----, 2014 WL 2507921, at *7 (D.D.C. June 4, 2014). Federal Rule

of Civil Procedure 37 “sets forth specific guidelines for the imposition of sanctions when a party

fails to disclose information or witnesses, answer interrogatories, attend a deposition, or comply

with a court order.” Id. See also Fed. R. Civ. P. 37(b)(2), (d). Pursuant to Rule 37, a district

court has broad discretion to impose sanctions for discovery violations. Nat’l Hockey League v.

Metro. Hockey Club, Inc., 427 U.S. 639, 642-43 (1976) (per curiam). Among other permissible

sanctions, Rule 37 authorizes a court to dismiss an action or proceeding in whole or in part for a

party’s failure to comply with a court order, answer interrogatories, or attend a deposition. Fed.

R. Civ. P. 37(b)(2)(A)(v), (d)(3).

       “The central requirement of Rule 37 is that ‘any sanction must be just,’ which requires in

cases involving severe sanctions that the district court consider whether lesser sanctions would

be more appropriate for the particular violation.” Bonds v. Dist. of Columbia, 93 F.3d 801, 808

(D.C. Cir. 1996) (quoting Insurance Corp. v. Compagnie des Bauxites de Guinée, 456 U.S. 694,

707 (1982)). “The choice of sanction should be guided by the ‘concept of proportionality’

between offense and sanction.” Id. “In determining whether a severe sanction is justified, the

district court may consider the resulting prejudice to the other party, any prejudice to the judicial

system, and the need to deter similar misconduct in the future.” Id. In this respect, “[d]ismissal

is a sanction of last resort to be applied only after less dire alternatives have been explored

without success or would obviously prove futile.” Shea v. Donohoe Constr. Co., 795 F.2d 1071,

1077 (D.C. Cir. 1986) (internal quotation marks omitted). Nevertheless, dismissal of non-

compliant class plaintiffs who fail to fulfill their discovery obligations is appropriate where




                                                 6
“further extensions [would be] obviously futile.” Arias v. DynCorp, --- F.3d ----, 2014 WL

2219109, at *3 (D.C. Cir. May 30, 2014).

       “While a Rule 37(b) dismissal usually follows some showing of willfulness, bad faith or

fault, a plaintiff’s persistent failure to comply with discovery and discovery-related orders can be

viewed as willful where multiple warnings and second chances have been given to the plaintiff.”

Arias v. DynCorp Aerospace Operations, LLC, 677 F.Supp.2d 330, 332 (D.D.C. 2010), aff’d sub

nom, Arias v. DynCorp, --- F.3d ----, 2014 WL 2219109 (D.C. Cir. May 30, 2014). See also

Handy v. Shaw, Bransford, Veilleux & Roth, No. 00-cv-2336, 2006 WL 3791387, at *8 (D.D.C.

Dec. 22, 2006) (“[I]n light of the multiple warnings and second-chances that Plaintiff has been

given, her persistent failure to comply with discovery and discovery-related Orders by this Court

and Magistrate Judge Kay cannot be viewed as anything other than willful.”)

                                       III. DISCUSSION

       The Court reads Defendants’ motion to seek the dismissal of four types of opt-in

Plaintiffs: (1) Uniform Maintenance Class Members who failed to respond to Defendants’

interrogatories (“Non-Responsive Uniform Maintenance Class Members”), (2) Uniform

Maintenance Class Members who failed to appear for their depositions (“No-Show Uniform

Maintenance Class Members”), (3) Meal Break Class Members who failed to respond to

Defendants’ document requests (“Non-Responsive Meal Break Class Members”), and (4) Meal

Break Class Members who failed to appear for their depositions (“No-Show Meal Break Class

Members”). The Court addresses each of these groups of opt-in Plaintiffs below. The Court

then addresses Defendants’ request for attorneys’ fees pursuant to Federal Rule of Civil

Procedure 37(b)(2)(C) and (d)(3).

       A. Non-Responsive Uniform Maintenance Class Members




                                                 7
       Defendants seek to dismiss 171 opt-in members of the Uniform Maintenance Class who

failed to provide the individual written discovery responses required by this Court’s prior Orders.

Defs.’ Reply at 3 (“To date, 171 Plaintiffs still have not responded to the written discovery

requests.”). Plaintiffs and class counsel concede that these opt-in Plaintiffs failed to satisfy their

discovery obligations, but nevertheless argue that the sanctions sought by Defendants are

inappropriate. See Pls.’ Opp’n at 6 (“Plaintiffs’ failure to supply written discovery responses

from Uniform Maintenance Class Members . . . does not justify imposition of the requested

sanctions.”). First, Plaintiffs argue that dismissal would be improper because class counsel and

the responsive members of the Uniform Maintenance Class have been diligent in meeting their

discovery obligations. Id. at 3-4. Accordingly, they argue that sanctions are unjustified where

Defendants have not shown culpability or fault on the part of Plaintiffs and class counsel in

complying with discovery obligations. Id. at 4. Yet the diligence and fault of class counsel and

the opt-in Plaintiffs who have responded to their discovery obligations is beside the point in

addressing Defendants’ present motion. Rather, the issue is the diligence and willfulness of the

opt-in Plaintiffs who have not responded to Defendants’ requests for written discovery and the

Court’s Orders requiring them to comply with these requests. There is no dispute that these opt-

in Plaintiffs have failed to provide the required discovery. Moreover, as discussed, the opt-in

Plaintiffs’ failure to respond to Defendants’ written discovery requests, despite repeated

opportunities to do so, provides evidence of their willfulness. Arias, 677 F.Supp.2d at 332;

Handy, 2006 WL 2791387, at *8.

       Next, Plaintiffs argue that the partial discovery provided is sufficient, as “[t]he written

discovery responses and testimony Plaintiffs have produced span the facilities and dates at issue

in this litigation and will permit the Parties to present informed arguments on the relevant issues




                                                  8
and help the Court make an informed decision on the merits of Plaintiffs’ uniform maintenance

class.” Pls.’ Opp’n at 1. Plaintiffs appear to contend that the failure to provide the discovery

responses is harmless. Yet, as Defendants correctly point out, Defs.’ Reply at 5, the Court has

repeatedly rejected this argument. In permitting Defendants to propound a limited number of

interrogatories on each opt-in Plaintiff, the Court recognized that Defendants’ interrogatories

“are highly relevant to whether the opt-in class members are similarly situated, as they are

intended to elicit information regarding the identity of the hospital(s) and departments where

each opt-in Plaintiff worked, the type of uniform each Plaintiff was required to wear, and . . . the

time spent and specific tasks conducted in connection with maintenance of that uniform.” Order,

ECF No. [64] at 8. And as noted, the Court previously rejected “Plaintiffs’ conclusory and

wholly unsubstantiated forecasting that ‘evidence from 455 Plaintiffs on uniform maintenance is

likely to be redundant, and, at a minimum, differ only as a matter of degree, rather than kind.’”

Id. at 6. At the decertification stage, the Court must “make[] a factual determination whether the

plaintiffs who have opted in are in fact ‘similarly situated’ to the named plaintiffs.” Blount v.

U.S. Sec. Assoc., 945 F.Supp.2d 88, 93 (D.D.C. 2013). For the reasons discussed in the Court’s

prior Orders, without the interrogatory responses from each opt-in Plaintiff, Defendants will be

hindered in developing any argument that, as a factual matter, the opt-in Plaintiffs are not

similarly situated to the named Plaintiffs, as they lack factual information needed for this

argument. Moreover, the Court will be at a disadvantage in deciding such a motion. See Lugo v.

Farmer’s Pride Inc., 737 F.Supp.2d 291, 299 (E.D. Pa. 2010) (requiring the Court, upon a

motion for decertification, to conduct “a specific factual analysis of each employee’s claim to

ensure that each proposed plaintiff in an appropriate member of the collective action.”)

(emphasis added).




                                                 9
       Failing in these arguments, Plaintiffs argue that dismissal with prejudice is a drastic

sanction that is not justified here, and they therefore propose a series of lesser sanctions. Pls.’

Opp’n at 7-8. This Court is obligated to “consider whether lesser sanctions would be more

appropriate for the particular violation.” Bonds, 93 F.3d at 808. Plaintiffs propose the following

options: (1) an Order barring the non-responsive class members from introducing individual

proof of their claims at summary judgment, trial, or both; (2) an Order barring the non-

responsive class members from introducing individual proof of their damages at trial and,

instead, requiring them to rely on inferences flowing from the evidence presented by other class

members for proof of damages, (3) an Order permitting Defendants to use facts contained in the

written discovery responses provided by time-barred class members, (4) an Order barring

Plaintiffs from seeking damages discovery relating to the non-responsive class members, or (5)

an Order dismissing the non-responsive class members claims without prejudice. Pl.s.’ Opp’n at

7-8. Yet these lesser sanctions proposed by Plaintiffs are not proportional to the offense here, as

they fail to mitigate the prejudice suffered by Defendants from the failure to provide discovery

responses for each opt-in Plaintiff. As discussed, the failure to provide these discovery responses

severely hinders Defendants ability to argue that the opt-in Plaintiffs, including those who failed

to comply with their discovery obligations, are not similarly situated to the named Plaintiffs. By

keeping these Plaintiffs in the litigation (or allowing them to return to the litigation without

prejudice) while at the same time providing none of the additional information sought by

Defendants, Plaintiffs’ proposed lesser sanctions are an insufficient remedy.

       Nevertheless, although the Court concludes that the lesser sanctions proposed by

Plaintiffs are inadequate, it is not prepared at this juncture to impose the severe sanction of

dismissal with prejudice proposed by Defendants. Rather, the Court will adopt a lesser sanction




                                                10
proposed by Defendants in their reply brief, providing the non-responsive opt-in Plaintiffs one

final opportunity to provide the discovery responses requested by Defendants and required by

this Court’s Orders, and to explain their failure to provide this discovery. See Defs.’ Reply at 12.

Accompanying this Memorandum Opinion is an Order directed to those opt-in Plaintiffs in the

Uniform Maintenance Class who have not yet responded to Defendants’ discovery requests. The

Order instructs these opt-in Plaintiffs that if they do not provide the necessary written discovery

and explain their previous failure to respond to Defendants’ individualized interrogatories within

thirty days of the issuance of the Order, their claims will be dismissed with prejudice from this

litigation. Plaintiffs’ counsel shall mail a copy of this Order to each non-responsive Uniform

Maintenance Class member within three business days of the issuance of this Order. A decision

on whether these Plaintiffs should be dismissed will await any responses to this Order. The

Court advises the parties that in reviewing these responses, it will not entertain arguments

already rejected in previous Orders, including the argument that individualized discovery is not

necessary in this case.

       Such a sanction is in keeping with D.C. Circuit precedent. In Arias, the D.C. Circuit

“reject[ed] [a] challenge brought by the 163 plaintiffs who were dismissed for failure to provide

complete responses to the court-ordered questionnaires.” Arias, 2014 WL 2219109, at *3.

“After plaintiffs’ repeated failures to adequately complete the responses – and three deadline

extensions – the district court ultimately exercised its Rule 37(b) prerogative to sanction the

plaintiffs by dismissing the case.” Id. The D.C. Circuit affirmed, rejecting plaintiffs’ contention

that “dismissal was too harsh of a sanction,” and noting that “the court gave the plaintiffs every

opportunity to complete their responses.” Id. The panel concluded that it would “be impossible




                                                11
to conclude that the [district court] judge abused his discretion” by dismissing these plaintiffs

“when further sanctions were obviously futile.” Id.

        So too here, the Court has provided opt-in Plaintiffs several opportunities in which to

satisfy their discovery obligations. Plaintiffs were initially expected to comply with their written

discovery obligations by April 26, 2013. Defs.’ Mem. at 2. On July 24, 2013, after Defendants

filed a motion to compel the missing discovery responses, the Court granted the opt-in Plaintiffs

an additional twenty-five days in which to submit their responses, warning them that failure to

respond could result in dismissal of their claims. Order, ECF No. [76]. Now, almost a year later,

a substantial number of discovery responses remain outstanding.               Yet, while many opt-in

Plaintiffs have certainly been delinquent in their discovery obligations, the Court is not yet ready

to conclude that “further extensions [would be] obviously futile.” Arias, 2014 WL 2219109, at

*3. As Defendants concede, previous extensions have resulted in Plaintiffs providing additional

missing discovery responses. Defs.’ Mem. at 3. In addition, the Court has only provided one

previous extension of the deadline, by granting Defendants’ motion to compel. By contrast, in

Arias, the district court provided plaintiffs three extensions, although the D.C. Circuit concluded

that by granting such repeated extensions the court was “if anything, too patient.” Arias, 2014

WL 2219109, at *3. Here, in attempting to strike the balance between being too strict and being

too patient, as it must under binding precedent, the Court will provide opt-in Plaintiffs one final

extension of thirty days in which to comply with the discovery requests and show cause why

their claims should not be dismissed.

        While the course set out in this Order is not precisely the one proposed by Defendants,

the Court notes that Defendants are hardly prejudiced by this brief extension. No motion for

decertification is due to be filed in the near future, as the parties are still in the process of briefing




                                                   12
Defendants’ motion for summary judgment as to the Uniform Maintenance Class, which will not

be completed until August 8, 2014, at the earliest. See Scheduling and Procedures Order, ECF

No. [99].

       B. No-Show Uniform Maintenance Class Members

       Defendants next seek to dismiss the claims of 12 opt-in Plaintiffs in the Uniform

Maintenance Class who failed to attend their own depositions. Defs.’ Mem. at 4-11. With

respect to the no-show opt-in Plaintiffs, Plaintiffs raise the same arguments against dismissal that

this Court has already rejected in the context of the non-responsive Plaintiffs. Pls.’ Opp’n at 3-7.

First, the diligence of class counsel in providing other Uniform Maintenance Class members for

deposition, and the participation of these other class members in depositions, has no bearing on

the resolution of Defendants’ motion. The issue is the apparent failure of certain Plaintiffs to

appear for their deposition as well as their decision to remain unresponsive regarding requests to

reschedule. In addition, the Court also rejects Plaintiffs’ argument that any failure to appear for

depositions is harmless because the “testimony Plaintiffs have produced span[s] the facilities and

dates at issue in this litigation and will permit the Parties to present informed arguments on the

relevant issues and help the Court make an informed decision on the merits of Plaintiffs’ uniform

maintenance claim.” Id. at 1-2. Like the failure to provide individual interrogatory responses,

the failure to appear for depositions hinders Defendants in their ability to investigate any

eventual motion for decertification of the Uniform Maintenance Class. As Defendants point out,

deposition testimony allows Defendants to identify individualized defenses for these Plaintiffs,

which would be of aid in a motion for decertification. Defs.’ Reply at 7. As other courts have

noted “[i]n considering a motion to decertify alleging dissimilarity of the plaintiff class, courts

have considered . . . the various defenses available to defendant which appear to be individual to




                                                13
each plaintiff.” Rawls v. Augustin Home Health Care, Inc., 244 F.R.D. 298, 300 (D. Md. 2007)

(quoting Thiessen v. Gen. Elec. Capital Group, 996 F.Supp. 1071, 1081 (D. Kan. 1998)). See

also Brennan v. Qwest Commc’ns Int’l, Inc., No. 07-2024, 2009 WL 1586721, at *8-9 (D. Minn.

June 4, 2009) (“being prevented from conducting timely depositions limits Qwest’s ability to

gather evidence that might reveal the presence of individualized defenses, which would be

particularly relevant to the decertification motion and is a clear example of prejudice.”).

Plaintiffs, for their part, argue that any prejudice to Defendants is mitigated because the Plaintiffs

who were scheduled to appear for depositions had provided written discovery responses. 3 Pls.’

Opp’n at 6-7 n. 2. Yet, if anything, the provision of written discovery heightens the need for

depositions, as it provides Defendants their only opportunity to cross-examine an opt-in Plaintiff

concerning his or her written discovery responses, probe potential individualized defenses and

clarify ambiguous statements in preparation for a motion to decertify. Defs.’ Reply at 7.

       As with the non-responsive opt-in Plaintiffs, the lesser sanctions proposed by Plaintiffs

fail to mitigate this prejudice because they do not provide Defendants the information denied by

Plaintiffs’ failure to appear for their deposition. Yet, as with the non-responsive members of the

Uniform Maintenance Class, the Court is unwilling at this time to impose the sanction of

dismissal with prejudice sought by Defendants. Indeed, unlike the non-responsive Plaintiffs, the

no-show Plaintiffs have not received a prior Court order warning them that their failure to

comply with their discovery obligations could result in dismissal of their claims. Accordingly,

because the Court is not convinced that further efforts to compel deposition of these opt-in

Plaintiffs would be “obviously futile”, Arias, 2014 WL 2219109, at *3, the Court will provide



3
  There appears to be disagreement on this point, as Plaintiffs assert that all of the no-show
Plaintiffs provided discovery, while Defendants claim that they received no written discovery
from two of the no-show Plaintiffs. Compare Defs.’ Mem. at 5 with Pls.’ Opp’n at 6-7 n.2


                                                 14
these Plaintiffs an additional opportunity to comply with their discovery obligations and explain

their previous failure to comply. Accompanying this Memorandum Opinion is an Order directed

to those opt-in Plaintiffs who have failed to appear for depositions as scheduled. The Order

instructs these opt-in Plaintiffs, within thirty days of the issuance of the Order, to (a) explain

their previous failure to appear for depositions, and (b) indicate availability and willingness for a

future scheduled deposition, or have their claims dismissed with prejudice from this litigation.

Plaintiffs’ counsel shall mail a copy of the Order to each no-show Uniform Maintenance Class

member within three business days of the issuance of this Order. A decision on whether these

Plaintiffs should be dismissed will await any responses to this Order. The Court advises the

parties that in reviewing these responses, it will not entertain arguments already rejected in

previous Orders.

       C. Meal Break Class Members

       Defendants also seek sanctions for the failure of several opt-in Plaintiffs in the Meal

Break Class to respond to Defendants’ requests for production of documents. See Defs.’ Mem.

at 2 (explaining that members of the Meal Break Class failed to satisfy their discovery obligation

and requesting the Court “dismiss with prejudice the claims of all opt-in Plaintiffs that have not

fulfilled their discovery obligations.”). Defendants do not specify exactly which opt-in Plaintiffs

it seeks to dismiss from each class, but the Court notes that Defendants’ list of 171 Plaintiffs

proposed for dismissal for failure to provide written discovery includes 171 members of the

Uniform Maintenance Class. See Defs.’ Mot, Ex. 1 (List of Non-Responsive Plaintiffs). This

list also includes at least three individuals who are members of both classes: Marlene Barber,

Rajini Raj, and Barbara Townsend. Id. Through their motion, the Court understands Defendants




                                                 15
to be seeking the dismissal of these Plaintiffs from the Meal Break Class, in addition to dismissal

from the Uniform Maintenance Class.

       Plaintiffs offer no rejoinder to Defendants’ argument that the non-responsive Meal Break

Class Members should be dismissed with prejudice for failure to comply with their discovery

obligations. Indeed, Plaintiff’s Opposition fails to even mention the Meal Break Class, arguing

only that dismissal is an inappropriate sanction for the discovery failures of members of the

Uniform Maintenance Class. Accordingly, the Court treats the portion of Defendants’ Motion to

Dismiss seeking dismissal of the non-responsive Meal Break Class members as conceded. See

Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C. 2002)

(citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997)) (“It is well understood in this

Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain

arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to

address as conceded.”).

       Based on the Court’s review, the Meal Break Class Members who failed to appear for

their depositions constitute a subset of the Meal Break Class Members who failed to satisfy their

written discovery obligations. See Defs.’ Mem. at 5-6 (identifying Rajini Raj and Barbara

Townsend as individuals who failed to appear for depositions). Since Plaintiffs have conceded

Defendants’ argument that the latter set of opt-in Plaintiffs should be dismissed, any argument

that the former should also be dismissed is moot. However, to the extent that there are Meal

Break Class Members who failed to appear for their depositions but did satisfy their written

discovery obligations, Defendants’ motion to dismiss is also granted with respect to these

Plaintiffs. Again, Plaintiffs’ Opposition fails to provide any counter to Defendants’ arguments

that members of the Meal Break Class – including those members who failed to appear for their




                                                16
depositions – should be dismissed with prejudice. Accordingly, this portion of Defendants’

motion to dismiss is granted as conceded. See Hopkins, 238 F.Supp.2d at 178.

       D. Attorney’s Fees

       In addition to the sanctions discussed above, Defendants also seek to recover the

attorney’s fees incurred as a result of the delinquent opt-in Plaintiffs’ failure to fulfill their

discovery obligations. Defs.’ Mem. at 16. Pursuant to Federal Rule of Civil Procedure 37(d)(3),

when a party fails to satisfy its discovery obligations, “[i]nstead of or in addition to [other

sanctions provided for by the Rule], 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.” Fed. R. Civ. P. 37(d)(3). Federal Rule of Civil Procedure 37(b)(2)(C) uses

similar language to authorize attorney’s fees where a party fails to comply with a court order.

       Although Defendants seek attorney’s fees pursuant to these provisions, they fail to

specify from whom they seek remuneration. Instead, they point to the use of the term “must” in

the relevant provision and argue that they are entitled to recover fees. Defs.’ Mem. at 16.

However, at other points in their briefing, Defendants concede that the discovery failures at issue

are not due to the misconduct of Plaintiffs’ counsel. Defs.’ Reply at 10. Therefore, due to

Plaintiffs’ counsel’s blamelessness in these failures, the Court concludes in an exercise of its

discretion that “circumstances make an award of expenses unjust” against the attorneys advising

the delinquent parties. See Gordon v. Kaleida Health, No. 08-cv-378S(F), 2013 WL 2250431, at

*7 (W.D.N.Y. May 21, 2013) (“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 Plaintiff’s counsel, the court finds that such expenses, awardable to




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Defendants, are solely attributable to the unresponsive opt-in Plaintiffs, and not Plaintiffs’

counsel.”).

       Here, the parties failing to act, and thus responsible for the discovery failures, are the

delinquent opt-in Plaintiffs. Yet while other courts have concluded that attorney’s fees may be

assessed against opt-in Plaintiffs in an FLSA collective action, see, e.g., Gordon, 2013 WL

2250431, at *7, the Court deems such additional sanctions inappropriate here. As an initial

matter, the Court is denying Defendants’ motion in part, having concluded that dismissal of the

delinquent Uniform Maintenance Class members is not an appropriate sanction at this juncture.

While this is not dispositive on the issue of attorney’s fees, as such expenses may be awarded

“[i]nstead of or in addition” to other sanctions provided for by Rule 37, see Fed. R. Civ. P.

37(b)(2)(C), (d)(3), it does counsel against an award of fees at this time. In addition, at least one

other court to consider awarding costs against a delinquent opt-in plaintiff in an FLSA collective

action has concluded that such an award would be “unjust.” See Luiken v. Domino’s Pizza LLC,

2009 WL 4723296, at *6 (D. Minn. Dec. 2, 2009) (“this Court concludes that ordering Mr.

Dougherty, who was a Domino’s Pizza delivery person, to pay reasonable expenses would be a

disproportionately severe sanction.”). Moreover, given the lack of contact between Plaintiff’s

counsel and a segment of the delinquent class, see Defs.’ Mem. at 4 (noting that “some of the

opt-in Plaintiffs ha[ve] become entirely non-responsive, even to their own counsel”), the Court is

uncertain that if it awarded the fees sought by Defendants, that collection of such expenses

would be feasible. Accordingly, the Court denies without prejudice Defendants’ request for

attorney’s fees.

       Nevertheless, the Court is cognizant of the fact that Defendants have expended

substantial resources in pursuing unsuccessful discovery from the delinquent opt-in Plaintiffs.




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Therefore, the Court would be willing to consider, at a later date, a renewed request for the

subject attorney’s fees. Such a request should explain why awarding attorney’s fees would avoid

the problems discussed above, namely the practicality and fairness issues involved in obtaining

fees from opt-in Plaintiffs in an FLSA collective action. The Court would also consider a

request to reduce any eventual recovery by Plaintiffs, should they prevail in this action, by the

amount of fees sought by Defendants for the discovery failures at issue.

                                         IV. CONCLUSION

       For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART

Defendants’ [97] Motion to Dismiss With Prejudice Plaintiffs That Failed to Fulfill Their

Discovery Obligations. Specifically, the Court DENIES WITHOUT PREJUDICE Defendants’

request to dismiss with prejudice members of the Uniform Maintenance Class who have failed to

respond to Defendants’ interrogatories or appear as scheduled for depositions. These Plaintiffs

will be provided one final opportunity to show cause why their claims should not be dismissed.

The Court GRANTS Defendants’ request to dismiss members of the Meal Break Class who

failed to satisfy their discovery obligations, as Plaintiffs have conceded this portion of the

motion. The Court DENIES WITHOUT PREJUDICE Defendants’ request for attorney’s fees,

although would be willing to consider a renewed request for these fees at a later date. An

appropriate Order accompanies this Memorandum Opinion.

                                                    _____/s/______________________
                                                    COLLEEN KOLLAR-KOTELLY
                                                    United States District Judge




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