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Jimenez v. Rosenbaum-Cunningham

January 30, 2009


The opinion of the court was delivered by: Surrick, J.


Presently before the Court is Defendants' Motion for Sanctions (Doc. No. 74). For the following reasons, the Motion will be granted in part and denied in part.


Plaintiffs are sixty-five former employees of Rosenbaum-Cunningham International, Inc. ("Defendant RCI"). (See Am. Compl. ¶¶ 12-77.) Defendant RCI provides janitorial services to theme restaurants throughout the United States. (Id. ¶ 79.) Dave & Buster's, Inc. ("Defendant D&B"), is one of the theme restaurants that contracted for janitorial services with Defendant RCI. (Id. ¶ 81.) Plaintiffs have filed a Complaint alleging that Defendants RCI and D&B paid them less than the minimum wage and failed to pay them overtime under the applicable federal and state wage and hour laws. (See Am. Compl. ¶¶ 105, 113, 127.) Many of Defendants' employees were immigrant workers from Mexico. (See id. ¶¶ 11-76.)

On July 9, 2008, Defendant D&B served requests for production of documents and interrogatories on each of the twenty-four Plaintiffs who brought claims against Defendant D&B. (See Doc. No. 74 at 7.) On September 8, 2008, only seven of the twenty-four Plaintiffs had served Defendant D&B with discovery responses. (Id.) Counsel for Plaintiffs told Defendant D&B that they had difficulty contacting the remaining Plaintiffs who had not served timely responses. (Id.) Consequently, Defendant D&B extended Plaintiffs' response deadline until September 23, 2008, to give Plaintiffs more time to respond. (Id.) Ten additional Plaintiffs responded to Defendant D&B's discovery requests by the extended September 23, 2008 deadline. (Id. at 8.) However, the following eight Plaintiffs did not respond to Defendant D&B's discovery requests by the extended deadline: (1) Jose Morales Lopez, who resides in Mexico; (2) Alfonso Orozco Lopez, who resides in Mexico; (3) Josue Ortiz Lopez, who resides in California; (4) Rafaela Carlos Medina, who resides in Texas; (5) Gustavo Rios Silverio, who resides in Texas; (6) Antonio Bruno Martinez, who resides in California; (7) Jose Martinez Velasco ("Velasco"), who resides in Mexico; and (8) Jose Francisco Ramirez Perez ("Ramirez Perez"), who resides in Mexico. (See id.; see also Am. Compl. ¶¶ 18-21, 28, 30, 33-34.)

On October 20, 2008, Plaintiffs' counsel told Defendant D&B that Velasco had already responded to the discovery requests and that Ramirez Perez was hospitalized and needed additional time to respond. (See Doc. No. 74 at 8.) As for the other six Plaintiffs (collectively, the "non-responding Plaintiffs"), Plaintiffs' counsel have asserted that they "do not expect to reach these individuals before the close of discovery" since Plaintiffs "have failed to keep their lawyers apprised of their whereabouts." (Doc. No. 75 at 7; see also Decl. of Nadia Hewka, Esq., ¶ 22, Nov. 10, 2008.) Plaintiffs' counsel took a number of steps to contact the non-responding Plaintiffs. For example, Plaintiffs' counsel called the non-responding Plaintiffs using the telephone numbers that Plaintiffs provided on the individual opt-in forms that they filed with the Court. (Hewka Decl. ¶ 8, Nov. 10, 2008.) Plaintiffs' counsel also called any updated telephone numbers that the non-responding Plaintiffs had provided since the lawsuit commenced. (Id.)

Four of the non-responding Plaintiffs had disconnected telephone numbers, so Plaintiffs' counsel "promptly sent" letters to their last known addresses in Spanish, "informing the individual D&B Plaintiff that they [sic] should contact us immediately." (Id. ¶¶ 9, 13.) Plaintiffs' counsel "sent pre-paid international phone cards" with letters to the non-responding Plaintiffs "who currently reside in Chiapas, Mexico, . . . to ensure that they would be able to call [Plaintiffs' counsel's] offices." (Id. at 3 n.4). Two non-responding Plaintiffs had operating telephone numbers but were not available. (Id. ¶ 13.) Plaintiffs' counsel therefore made telephone inquiries "into whether the individual . . . still lived at the address provided and whether any new contact information was available." (Id. ¶ 10.) When that was unsuccessful, Plaintiffs' counsel sent a letter "to the last known address . . . asking that they contact us immediately." (Id.) Typically, Plaintiffs' counsel "used the address provided on the individual opt-in form." (Id.) Two of those letters were returned to Plaintiffs' counsel indicating that the individual no longer resided at that address. (Id. ¶ 13.) All told, Plaintiffs' counsel "sent approximately fourteen letters to D&B Plaintiffs in an effort to contact D&B Plaintiffs and reply to D&B's discovery requests." (Id. ¶ 11.) It appears that, to date, none of the Plaintiffs at issue have responded to the letters from Plaintiffs' counsel. It also appears that none of these Plaintiffs have kept their counsel -- or this Court -- apprised of their whereabouts or current contact information. (See Decl. of Nadia Hewka, Esq., ¶¶ 5-7, Jan. 2, 2009.)

On October 24, 2008, Defendant D&B brought the instant motion for sanctions against the Plaintiffs who failed to respond to the discovery requests. (See Doc. No. 74.) Defendant D&B asks the Court to dismiss the claims of these Plaintiffs with prejudice as a sanction for their "blatant disregard . . . of their obligations under the Federal Rules of Civil Procedure." (Doc. No. 74 at 8-9.) Plaintiffs assert that the claims of the non-responding Plaintiffs should be dismissed without prejudice and that the claims of Plaintiffs Velasco and Ramirez Perez should not be dismissed. (Doc. No. 75 at 2.)

On December 9, 2008, an Order was entered directing the non-responding Plaintiffs to file signed affidavits with the Court by December 29, 2008, explaining their failure to prosecute the case by failing to provide responses to discovery. (See Doc. No. 77 ¶ 1.) The non-responding Plaintiffs were warned that failure to comply with the Order would result in dismissal of their claims with prejudice. (Id.) The non-responding Plaintiffs did not comply with the Order and, to date, have not produced the discovery. Velasco and Ramirez Perez were subject to different provisions of the December 9th Order. Velasco was ordered to serve Defendant D&B with amended discovery responses and verified interrogatories on or before December 29, 2008, (id. ¶ 2), based in part on Plaintiffs' counsel's representation that they "mistakenly titled the responses of this specific D&B Plaintiff as attributable to 'Jose Martinez Garcia' when they should have been credited to 'Jose Martinez Velasco,'" (Hewka Decl. ¶ 19, Nov. 10, 2008). Velasco was therefore given time to amend his responses to reflect his correct name. (See Doc. No. 77.) Velasco has since complied with the Order and produced the discovery under his correct name, as required. (See Hewka Decl. ¶¶ 9-10, Jan. 2, 2009.)

Ramirez Perez was ordered to serve Defendant D&B with discovery responses by December 15, 2008, (see Doc. No. 77), based in part on representations by Plaintiffs' counsel that an earlier December 12, 2008 deadline would "provide Plaintiffs' counsel with sufficient time to locate him and obtain the responses," (see Doc. No. 75 at 3). On December 17, 2008, Plaintiffs' counsel submitted a letter stating they have "been unable to contact Plaintiff Jose Francisco Ramirez Perez or produce responses to Defendant D&B's discovery requests as required in the Court's December 9 Order."*fn1 (Doc. No. 78 at 1.) Consequently, Ramirez Perez was ordered to file a signed affidavit with the Court by December 29, 2008, explaining his failure to prosecute the case. (See Doc. No. 79.) Ramirez Perez was also warned that failure to comply with the Order would result in dismissal of his claims with prejudice. (See id.) It appears that Ramirez Perez, like the non-responding Plaintiffs, has not produced the discovery or complied with the Court's Order that he explain the reasons for his failure to engage in discovery. (See Hewka Decl. ¶¶ 11-13, Jan. 2, 2009.)


Federal Rule of Civil Procedure 37(d) provides that a court may sanction a party who, "after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response." Fed. R. Civ. P. 37(d). In addition, Federal Rule of Civil Procedure 41(b) provides that a court may dismiss an action "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order. . . ." Fed. R. Civ. P. 41(b). Dismissal with prejudice is an extreme sanction that should only be used in "limited circumstances." Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002). Dismissal with prejudice is appropriate, however, if a party fails to prosecute the action. See Harris v. City of Phila., 47 F.3d 1311, 1330 (3d Cir. 1995) ("We have affirmed dismissal of an action as a sanction for . . . failure to prosecute."); Marshall v. Sielaff, 492 F.2d 917, 918 (3d Cir. 1974) ("Under Rule 41(b) . . ., as well as under the inherent power of the court, a case may be dismissed with prejudice for want of prosecution."); see also Hoffman v. Corr. Med. Servs., No. 07-0261, 2008 WL 4960455, at *2 (D. Del. Nov. 18, 2008) ("Although dismissal is an extreme sanction that should only be used in limited circumstances, dismissal is appropriate if a party fails to prosecute the action.").

The Third Circuit has set forth six factors to consider when evaluating dismissal for failure to prosecute: (1) the extent of the party's personal responsibility; (2) prejudice to the adversary; (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; and (6) the meritoriousness of the claim. Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). Courts must balance the factors and need not find that all of them weigh against the party to dismiss the action. Emerson, 296 F.3d at 190. Dismissal is appropriate even if some of Poulis factors are not satisfied. See Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1998) ("Not all of these factors need be met for a district court to find dismissal is warranted."); see also Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008) ("While no single Poulis factor is dispositive, we have also made it clear that not all of the Poulis factors need be satisfied in order to dismiss a complaint.") (citations omitted). Balancing under Poulis is unnecessary when a litigant's conduct makes adjudication of the case impossible. See Guyer v. Beard, 907 F.2d 1424, 1429-30 (3d Cir. 1990); ...

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