The opinion of the court was delivered by: A. RICHARD CAPUTO, District Judge
In this § 216(b) Fair Labor Standards Act collective action,
Defendant moved to dismiss 113 of 508 Managers and Assistant
Managers of the Defendant who have "opted in" by signing and
returning consent forms because they have failed to respond to
Defendant's discovery requests which were allowed by the Court.
Defendant also notes that the 113 opt-ins have not responded to
their own counsel's communications to them regarding
participation in this litigation.
The sanction of dismissal is extreme and drastic, and should
only be utilized as a last resort. See Roman v. City of
Reading, 121 Fed. Appx. 955, 958 (3d Cir. 2005); Poulis v.
State Farm Fire & Cas. Co., 747 F.2d 863, 867 (3d Cir. 1984). It
is worthy to note that while the discovery requests were sent in
November, 2004, and counsel for Plaintiffs reported on June 13,
2005 that their two requests for an indication of the desire to
continue as plaintiffs were not responded to by 113 people who
opted in by signing consent forms, there has been no order from
the Court to compel responses to the Defendant's discovery. In determining whether to apply the extreme sanctions of
dismissal, the court in Poulis sets forth six factors which a
district court must consider before ordering dismissal for
failure to respond to discovery. The Defendant, eschewing
Poulis, urges that § 216(b) requires active participation from
an opt-in plaintiff which Defendant construes to mean that
opposing discovery must be answered. Defendant cites to the
statute, 29 U.S.C. § 216(b) which provides, "No employee shall be
a party plaintiff to any such action unless he gives his consent
in writing to become such party and such consent is filed in the
court in which such action is brought." Defendant also cites
several cases in support of its contention, however none hold
that § 216(b) requires dismissal for failure to respond to
discovery. In In re Food Lion, Inc., 151 F.3d 1029, 1998 U.S.
App. LEXIS 11809 (4th Cir. 1998), the Fourth Circuit Court of
Appeals approved the district court's dismissal of some
plaintiffs for failure to respond to a court approved
questionnaire relative to which a court order warned that failure
to comply could result in dismissal after the court gave the
unresponsive plaintiffs an opportunity to show cause why their
claim should not be dismissed.*fn1
This case is clearly different. There has been no action from
the court, either by way of an order compelling compliance or an
order to show cause. Therefore, I do not find Defendant's
arguments persuasive. Neither the Act nor the case law compels
the result Defendant seeks.
I am required, however, to review and consider the six factors
set forth in Poulis:
(1) the extent of the party's personal
responsibility; (2) the prejudice to the
adversary caused by the failure to meet scheduling
orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or
the attorney was willful or in bad faith; (5) the
effectiveness of sanctions other than dismissal,
which entails an analysis of alternative sanctions;
and (6) the meritoriousness of the claim or
Poulis, 747 F. 2d at 868.
I will deal with these factors in turn.
1. The Extent of the Party's Personal Responsibility.
There is no evidence that the 113 who have not responded are
doing so deliberately. This factor has not been met.
2. Prejudice to the Adversary.
The failure of individual plaintiffs to respond in a
class-action such as this does not prejudice the defendant in the
preparation of its case. If these were individual claims then
they may well be prejudiced, but here, the ultimate result of the
litigation will determine the ability of the 113 to recover
should plaintiffs prevail. At the same time, I did allow this
discovery, so I do not endorse Plaintiffs' contention that
McGrath v. City of Philadelphia, 864 F. Supp. 466, 1994 U.S.
Dist. Lexis 1495, at *7-8 (E.D. Pa. 1994) governs here.
I find no prejudice to Defendant.
3. History of Dilatoriness.
This is the first and only discovery request of these 113
individuals. Therefore, there is no pattern ...