United States District Court, E.D. Virginia, Alexandria Division
JAMES C. CACHERIS, District Judge.
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.
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"). (Am. Compl. [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.) Discovery closed on January 12, 2015. [Dkt. 48.] Having been fully briefed and argued, this motion is ripe for disposition.
II. Legal Standard
In appropriate cases, a court may order sanctions if a party fails to appear for a deposition. Fed.R.Civ.P. 37(d)(1)(A). 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). "[D]ismissal is not a sanction to be invoked lightly." 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.
At the outset, it should be noted that Cogent's motion fails to adhere to Local Rule 37(E). 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. 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.").
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. Without commenting on the proprietary of this strategy, Cogent was not so prejudiced as to warrant dismissal with prejudice of these Plaintiffs. Therefore, the Court will dismiss Burgos and Murphy without prejudice from this case.
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. ...