Opinion
5:19-CV-00478-D
10-17-2022
Matthew Hodge, et al., Plaintiffs, v. North Carolina Department of Public Safety, et al., Defendants.
ORDER & MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge
Current and former employees of the North Carolina Department of Public Safety and Division of Adult Correction and Juvenile Justice (together, “DPS”) have sued DPS under the Fair Labor Standards Act (“FLSA”). As is common in large FLSA class actions, the Employees have been split into three categories-Named Plaintiffs, Representative Opt-In Plaintiffs (“Representatives”), and Non-Representative Opt-In Plaintiffs (“Non-Representatives”). In October 2021, DPS served written discovery requests on all three groups of Employees. After most of the requests went unanswered, DPS moved in July 2022 to dismiss the Employees who failed to respond. D.E. 73. DPS alternatively asks the court to compel discovery from the noncompliant Employees. Id. For the reasons set forth below, DPS is entitled to only some of the relief it seeks.
I. Background
Employees filed this FLSA opt-in class action in October 2019. D.E. 1. Their complaint alleges that DPS failed to pay them for certain pre- and post-shift activities that DPS required them to perform. Id. As of July 2022, over 1,500 Employees had opted into the lawsuit. See D.E. 75.
Consistent with common practice in large FLSA opt-in lawsuits, the Employees are subdivided into three groups. See D.E. 64-1. The first group consists of the five Named Plaintiffs. This group is subject to the most rigorous discovery requirements. The second group, Representatives, was originally comprised of roughly 150 representative opt-in plaintiffs randomly selected from the total pool of opt-in Employees, but some Representatives have withdrawn from the suit. Id. The parties agree that DPS may ask Representatives to respond to written discovery and to sit for depositions. Id. The largest group, Non-Representatives, consists of the remaining opt-in Employees. The parties disagree about the exact scope of discovery for NonRepresentatives, but the parties' joint supplemental discovery plan states that they are subject to “damages discovery.” Id.
Discovery began in January 2020 when parties held their Rule 26(f) conference. D.E. 23; see Fed.R.Civ.P. 26(d)(1) (“A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)[.]”). The parties originally agreed to conclude fact discovery by August of that year, but they extended this deadline twice. D.E. 23, 70, 78. The court eventually issued an order setting the close of fact discovery for August 25, 2022. D.E. 78.
In October 2021, DPS served written discovery requests on all three Employee groups. See D.E. 74-2. DPS also scheduled depositions with Representatives which were to take place between December 2021 and the following April. See D.E. 75. When DPS served these discovery requests, Named Plaintiffs had already completed a round of written discovery and sat for depositions, but DPS sought additional-and largely duplicative-responses from the Named Plaintiffs. See D.E. 76, 79.
After most Employees failed to respond to the October 2021 discovery requests, DPS moved in July 2022 to sanction the offending Employees. D.E. 73. In its motion, DPS argues that only a third of Representatives appeared for their depositions. Id. Further, just six Employees responded to DPS's written discovery. Id. None of the Named Plaintiffs or Non-Representatives responded. Id. DPS maintains that the court should dismiss all but four of the Employees. Id. In the alternative, DPS asks the court to compel Employees to respond. Id. It also requests that the court award DPS court reporter appearance fees and attorney's fees in connection with Employees' failure to participate fully in discovery. Id.
The next month, Employees responded to DPS's motion. D.E. 79. They noted:
As DPS points out, Employees responded seven days late. The court's Local Civil Rules require a respond to a discovery motion “within 14 days after service of the motion[.]” Local Rule 7.1(f)(2). A motion to sanction a party for failure to participate in discovery no doubt falls under the Local Rules' broad definition of discovery motions. See id. 7.1(c)(1). DPS moved for sanctions on July 25, so Employees needed to respond by August 8. Employees did not do so until August 15. The court, then, would be well within its rights to ignore the contents of Employees' response. See Baskin-Robbins, Inc. v. Golde, No. 5:99-CV-102-BR(3), 2000 WL 35536665, at *1 n.1 (E.D. N.C. May 26, 2000). Although the court will not exercise this right, it warns Employees that it need not consider the merits of future untimely filings.
• Named Plaintiffs did not respond to the October discovery requests because they had provided substantially the same information in the prior round of discovery. And if Named Plaintiffs had outstanding discovery obligations, they would comply.
• Employees' attorneys were engaged in an ongoing effort to provide written discovery responses from Representatives and schedule additional depositions. Employees agreed not to oppose DPS's motion to dismiss any Representative who had not participated in discovery by the court's August 25 deadline.
• Non-Representatives need not provide discovery responses under the parties' joint supplemental discovery plan-only Named Plaintiffs and Representatives are subject to individualized written discovery.
DPS filed its reply brief toward the end of August. D.E. 83. In it, DPS reaffirmed its belief that all three groups of Employees were deficient in their discovery obligations. Id. The court then held a hearing in early September to discuss DPS's motion for sanctions and the status of its outstanding discovery requests. See D.E. 86.
II. Discussion
The parties have resolved their disputes about Named Plaintiffs. But they still disagree about whether the court should sanction Representatives who failed to respond to written discovery and whether Non-Representatives are subject to written discovery. Because DPS's motion asks the court to dismiss, or, in the alternative, compel discovery from all three groups of Employees, each will be discussed in turn.
A. Named Plaintiffs
Employees maintain that Named Plaintiffs did not respond to DPS's October 2021 discovery requests because those requests sought substantially the same information as DPS's earlier requests. D.E. 76. At the September 2022 hearing, however, DPS explained that all Named Plaintiffs had supplemented their original discovery responses to DPS's satisfaction. DPS then orally withdrew its motion to sanction the Named Plaintiffs. Because parties no longer disagree about the sufficiency of Named Plaintiffs' discovery responses, DPS's motion to sanction them will be denied.
B. Representative Opt-In Plaintiffs
DPS claims that nearly all Representatives either disregarded its discovery requests or failed to appear for depositions. D.E. 75. DPS served the requests in October 2021 and sent noncomplying Representatives deficiency letters in April 2022. It also met with Employees' counsel several times to help facilitate responses. Despite these efforts, 96 Representatives had failed to fully participate in discovery by September 16-whether by refusing to appear for depositions, declining to respond to written discovery requests, or both. See D.E. 87. Of the 96 nonparticipating Representatives, 12 had been deposed but had not completed written discovery. See id.
DPS argues that all 96 noncomplying Representatives should be dismissed from the suit. D.E. 75. In large part, Employees do not disagree-in their response brief and at the September hearing, Employees maintained that they would not oppose a motion to dismiss any Representative who completely failed to participate in discovery by August 25. See D.E. 79. Employees have asked, however, that the 12 Representatives who sat for depositions but have not yet completed written discovery be given more time to do so. DPS counters that Representatives who went to the trouble of being deposed should know better than to let written discovery deadlines lapse.
Federal Rule of Civil Procedure 37 allows the court to impose sanctions on a party who fails to appear for deposition or respond to written discovery requests. Fed.R.Civ.P. 37(d)(1)(A). Sanctions vary, but they can be as severe as dismissal. See id. 37(b)(2)(A). Courts have considerable discretion in determining whether sanctions are appropriate, and the Fourth Circuit has adopted a four-factor test to determine which Rule 37 sanctions are appropriate in a given case. See, e.g., Anderson v. Found. for Advancement, 155 F.3d 500, 504 (4th Cir. 1998). In selecting an appropriate sanction, the court should consider “(1) whether the non-complying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4) whether less drastic sanctions would have been effective.” Id. (citation omitted).
Because the parties agree that 84 noncomplying Representatives should be dismissed from this lawsuit, the court will only discuss these factors briefly. First, the court may presume that a Representative who has completely failed to respond to any discovery request has done so in bad faith. See, e.g., McFeeley v. Jackson St. Ent., LLC, No. DKC 12-1019, 2014 WL 4182231, at *2 (D. Md. Aug. 19, 2014) (“[Plaintiff's] complete unresponsiveness in this case, without any justification or excuse, is enough to presume bad faith.”). Second, DPS has been prejudiced because it has been deprived valuable information commonly sought in FLSA actions that parties' joint supplemental discovery plan specifically says it's entitled to. See D.E. 64-1. Third, it is no doubt important to encourage plaintiffs in opt-in FLSA class actions to conduct discovery responsibly. Fourth, Representatives have been given multiple notifications about their discovery obligations, and Employees' counsel has made reasonable attempts to inform Representatives of the consequences of noncompliance. For these 84 Representatives, no sanction short of dismissal will remedy their unwillingness to participate in discovery.
See 20 Noah A. Finkel et al., Wage & Hour Collective and Class Litigation § 8.04[b] (2022) (“The use of representative samples of plaintiffs for purposes of discovery in wage and hour cases often is permitted.”).
For the 12 Representatives who have been deposed but have not completed written discovery, dismissal is not the proper sanction. First, this subset of Representatives has not shown “complete unresponsiveness” to DPS's discovery requests. McFeeley, 2014 WL 4182231, at *2. By sitting for depositions, they have completed the more time-consuming portion of their discovery obligations and need only to respond to written requests. And while DPS is prejudiced by these Representatives' failure to participate in written discovery, their willingness to be deposed suggests that they will not ignore a court order mandating their responses.
Employees' counsel has been working to contact these 12 Representatives. Finding that the sanction of dismissal without the court's warning is too severe, the undersigned will allow these 12 individuals one more week from the date of this order to respond to DPS's written discovery requests.
C. Non-Representative Opt-In Plaintiffs
1. Discovery Obligations
DPS originally sought to have the roughly 1,400 Non-Representatives respond to three interrogatories and three requests for production. D.E. 74-2. DPS has since narrowed its request to one of each. Compare id. (original written discovery request), with D.E. 74-5 (DPS letter conceding that Non-Representatives need not respond to all requests). At the September hearing, DPS clarified that it now seeks to have all Non-Representatives respond to the following:
• Interrogatory 2: State whether You kept any notes or records of the days or hours You worked while employed by the North Carolina Department of Public Safety or the Division of Adult Correction and Juvenile Justice during the Relevant Time Period and, if You did keep notes or records, identify the notes or records You kept.
• Request for Production 1: All documents that describe, contain, record, or reflect any time that You worked at the North Carolina Department of Public Safety or the Division of Adult Correction and Juvenile Justice during the Relevant Time Period for which you claim you did not receive full compensation.
As Employees point out, this request is unusual. Courts seldom allow individualized discovery to be served on non-representatives in FLSA opt-in class actions with over 1,000 plaintiffs. See, e.g., Long v. Trans World Airlines, Inc., 761 F.Supp. 1320, 1329-30 (N.D. Ill. 1991) (limiting discovery to a representative sample in class action with about 3,000 plaintiffs); Kutzback v. LMS Intellibound, LLC, No. 2:13-cv-02767-JTF-cgc, 2020 WL 1317345, at *2 (W.D. Tenn. Mar. 17, 2020) (upholding Magistrate Judge's order denying individualized discovery from around 3,400 opt-in plaintiffs); see generally 20 Noah A. Finkel et al., Wage & Hour Collective & Class Litig. § 8.04[b] (2022) (“When the opt-in class approaches 1,000 or more plaintiffs, however, a court will likely be more reluctant to grant individualized discovery of each opt-in plaintiff.”).
Although individualized discovery in a case with so many plaintiffs is rare, Employees and DPS seem to have agreed to just this sort of arrangement. The parties' joint supplemental discovery plan states that “[a]ll Opt-In Plaintiffs, regardless of whether they are part of the representative sample, will be subject to damages discovery.” D.E. 64-1. It also provides that DPS may take “full written discovery” from Representatives and Named Plaintiffs only. Id. (emphasis added).
Despite the plan's plain language, Employees contend that it “does not require individualized discovery from the almost 1,400 Non-Representative[s].” D.E. 79. Employees suggest, instead, that the whole point of the plan was to carve out a class of Representatives (equal to roughly ten percent of all Employees) that would be subject to individual discovery. Id. If Employees had their way, DPS could only seek “damages discovery” from Non-Representatives in the form of pay records, Gatelog entries, and other macro-level data that would not require Non-Representatives to respond to anything personally. Id. Employees further suggest that, if the joint supplemental discovery plan is ambiguous, Federal Rule 26(b)(1) counsels against requiring Non-Representatives to comply with individualized discovery because the burden of this discovery would outweigh its benefit. Id.
While Employees' interpretation of the plan tracks the traditional structure of FLSA opt-in class actions, the court declines to relieve Employees of complying with the terms they agreed to. The joint supplemental discovery plan speaks for itself: “All Opt-In Plaintiffs, regardless of whether they are part of the representative sample, will be subject to damages discovery.” D.E. 64-1. Further, by stating that “full” written discovery can be obtained only from Representatives, the plan contemplates that Non-Representatives will have some written discovery obligations. Id. The discovery plan does list pay sheets and Gatelog records as examples of “damages discovery,” but these examples are nonexclusive. Id. If Employees wished to limit damages discovery to data entries and forbid DPS from serving individualized discovery requests on Non-Representatives, they could have written the plan to reflect those desires. Employees cannot now force the plan to carry a meaning so far afield from its plan language.
Because the plan authorizes DPS to serve limited written discovery on Non-Representatives, DPS is entitled to that discovery unless it is not “proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). The Federal Rules list several proportionality factors for the court to consider. Id. Of those, two factors merit discussion here: parties' access to information and the burden of the discovery in proportion to its benefit.
DPS wants Non-Representatives to provide any personal records which reveal that their pay does not reflect their hours worked. D.E. 74-2. DPS will have no access to these personal records unless Non-Representatives provide them. And, if they exist, the personal records shed light on the credibility of Employees' claims against DPS.
Further, the fact that each Non-Representative had to elect to join this lawsuit proves that they can complete basic discovery requests with only minimal burden. Compliance with DPS's requests would not be difficult. A Non-Representative who has no personal records documenting their hours worked could simply say so and produce nothing else. Someone who has kept personal records need only say that this is the case, copy the records, and send them to DPS. Participating in this limited discovery poses no greater burden than does enrolling as an FLSA class action plaintiff. Because the burden on Non-Representatives is low, and the value of any personal records maintained by Non-Representatives is nontrivial, the undersigned finds that Non-Representatives must answer Interrogatory 2 and Request for Production 1 within 21 days of this order being issued. A Non-Representative who fails to respond will be subject to sanctions.
Although parties are free to agree to a different method of obtaining these responses, the court suggests that a form with a “yes/no” checkbox accompanied by a 28 U.S.C. § 1746 declaration would suffice.
2. Sanctions for Noncompliance
DPS contends that every Non-Representative who failed to participate by the August 25 close of fact discovery should be dismissed from this case. D.E. 75. Considering the four Anderson factors discussed above, the court cannot agree. Employees' counsel did not believe that the plan authorized DPS to serve Non-Representatives with individualized discovery, so Non-Representatives likely have no idea that their discovery obligations remain unfulfilled. Further, DPS suffers very little prejudice due to the Non-Representatives' noncompliance-while the written discovery responses are relevant enough to survive a Rule 26(b) challenge, they are not vital to the outcome here. And although the court should promote plaintiffs being well-informed about their responsibilities, future FLSA plaintiffs cannot be deterred from failing to fulfill discovery obligations they don't know about. Thus, a sanction less severe than dismissal is proper.
Most FLSA lawsuits of this size forgo individualized written discovery from non-representative plaintiffs altogether. See generally Finkel et al., supra, § 8.04[b].
If a Non-Representative fails to respond to DPS's Interrogatory 2 and Request for Production 1 within 21 days from the date this order issues, that failure will result in a presumption that the Employee has no relevant records. Fed.R.Civ.P. 37(b)(2)(A)(i). If a Non-Representative produces a relevant record after the 21-day window has lapsed, the Non-Representative may not introduce the document into evidence or otherwise rely on it. Fed.R.Civ.P. 37(b)(2)(A)(ii). This sanction allows DPS to obtain the relevant records it's entitled to under the joint supplemental discovery plan while ensuring that Non-Representatives, who generally lack discovery obligations in FLSA actions, are not dropped from the case unnecessarily.
D. Fees
On top of seeking dismissal of almost all Employees, DPS asks the court to impose certain fees and expenses against Employees under Rule 37. D.E. 73. Specifically, DPS seeks reimbursement for $2,090 in court reporter fees it incurred when Representatives failed to show up for their depositions and an unspecified amount in attorney's fees racked up while preparing those depositions and bringing its motion for sanctions. Id. While the court understands DPS's frustration with incurring costs for depositions that never happened, the dismissal of 84 Employees who failed to appear at those depositions is a sufficient sanction for now.
III. Conclusion
For the reasons discussed above, the undersigned orders the following in response to DPS's motion for sanctions (D.E. 73):
• DPS's motion to sanction Named Plaintiffs is denied.
• The 12 Representatives listed in the parties' joint notice (D.E. 87) who had been deposed but had not responded to written discovery requests by September 16, 2022, are ordered to respond within seven days from the date this order is issued. Failure to timely respond will result in dismissal.
• Parties will file a joint notice within fourteen days from the date this order is issued letting the court know which of the 12 Representatives failed to respond to written discovery requests as required in the preceding paragraph.
• Non-Representatives who have not yet responded to Interrogatory 2 and Request for Production 1 are ordered to respond within 21 days from the date this order is issued. Failure to respond will result in a presumption that the Employee has no
relevant records, and the Employee may not subsequently introduce or rely upon any relevant records.
• Parties will bear their own costs.
The undersigned further recommends that the 84 Representatives listed in the parties' joint notice (D.E. 87) who had neither been deposed nor responded to written discovery requests by September 16, 2022, be dismissed.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.