United States District Court, M.D. Pennsylvania
ZACHARY GIVEN, KRISTOPHER LAWSON, VINCENT MCCLEERY, and SEAN MCMURRAN, individually and on behalf of other persons similarly situated, Plaintiffs
LOVE'S TRAVEL STOPS & COUNTRY STORES, INC., Defendant
CHRISTOPHER C. CONNER, CHIEF JUDGE UNITED STATES DISTRICT
commenced this action against their former employer asserting
a claim for unpaid overtime wages under the Fair Labor
Standards Act of 1938 (“FLSA”), 29 U.S.C. §
201 et seq. (Doc. 1). Defendant Love's Travel
Stops & Country Stores, Inc. (“Love's”)
moves for sanctions against plaintiff Zachary Given
(“Given”) pursuant to Federal Rule of Civil
Procedure 37. (Doc. 63).
Factual Background & Procedural
operates retail travel stops throughout forty states. (Doc. 1
¶¶ 19-20). Plaintiffs worked as operations managers
at various Love's locations between 2008 and 2016.
(Id. ¶¶ 9-16). They allege that Love's
misclassifies operations managers as exempt employees and
therefore fails to pay operations managers overtime wages for
hours worked in excess of forty per workweek. (Id.
¶¶ 54, 60, 67).
bring an FLSA collective action claim on behalf of all
similarly situated Love's operations managers.
(Id. ¶¶ 72-81). Plaintiffs moved for
conditional certification of their putative collective action
pursuant to 29 U.S.C. § 216(b). The court granted the
motion and the matter is presently proceeding as a
conditionally certified FLSA collective action.
commenced in early fall 2017. Defense counsel emailed
proposed deposition dates for all named plaintiffs on
November 2, 2017. (Doc. 63-2 at 90). Given provided
objections and responses to Love's interrogatories and
document requests, but the parties were unable to settle on a
mutually agreeable date for Given's deposition.
(Id. at 58-70, 72-88, 111). On December 4, 2017,
Love's noticed Given's deposition for December 28,
2017. (Id. at 98-99). Plaintiffs' counsel sought
to reschedule Given's deposition for January 4 or 9, 2018
and requested 17 days' notice so Given could clear the
date with his employer. (Id. at 102-03). On December
18, 2018, defense counsel selected January 4, 2018 as
Given's new deposition date. (Id. at 105).
counsel notified defense counsel Matthew Hank
(“Attorney Hank”) that Given's January 4
deposition would need to be rescheduled “due to the
holiday.” (Id. at 107). The cancellation
notice was one sentence located in one of seven PDFs attached
to a December 28, 2017 email. (Id. at 107, 111).
Attorney Hank received this email on January 3, 2018 when he
returned from vacation. (Id. at 111). He alleges
that plaintiffs' counsel failed to carbon copy Love's
other counsel on the email, effectively providing Love's
only one day's notice of the need to reschedule.
(Id.) For this reason, and because Love's
manager of risk, Larry Dixon (“Dixon”), was
already in transit from Oklahoma City, Oklahoma to
Philadelphia, Pennsylvania for the deposition when Attorney
Hank read the email, Attorney Hank declined to adjourn
Given's January 4 deposition. (Id. at 112; Doc.
107 ¶¶ 2-5). Plaintiffs' counsel responded that
Given is in the military which “impacts scheduling and
communication with [him].” (Doc. 63-2 at 110).
telephonic discovery conference on January 3, 2018 before
Magistrate Judge Martin C. Carlson, Judge Carlson instructed
plaintiffs' counsel to ascertain Given's whereabouts
by close of business. (See id. at 115). Judge
Carlson further directed that the deposition should go
forward as previously scheduled if Given was located in the
Middle District of Pennsylvania or otherwise immediately
accessible. (See id. at 119). Plaintiffs'
counsels were unable to locate Given for his January 4
deposition, and Attorney Hank proposed three additional dates
by email. (Id.) On January 9, 2018, plaintiffs'
counsel reported that they “ha[d] not yet heard back
from [Given] regarding new dates, ” but agreed to
schedule the deposition for January 29, 2018. (Id.
at 125, 133-34; see also id. at 138). Five days
before the rescheduled deposition date, plaintiffs'
counsel confirmed that they were “unable to produce Mr.
Given” for his deposition. (Id. at 142). The
court conducted a telephonic discovery conference on January
26, 2018, during which the parties discussed, inter
alia, Given's repeated failure to appear.
moved for sanctions against Given pursuant to Federal Rule of
Civil Procedure 37. Shortly thereafter, plaintiffs'
counsel moved to withdraw as counsel for Given. The court
granted counsel's motion, provided Given 30 days to
express his intent to proceed in this action, and admonished
Given that failure to respond may result in dismissal of his
claim. Given has not responded to the court's order. He
also has not replied to Love's motion for sanctions, but
plaintiffs' counsel filed a brief in opposition to
sanctions against them and representing the interests of the
conditionally certified collective action members.
26 through 37 of the Federal Rules of Civil Procedure govern
the process of fact discovery for federal civil litigation.
Upon motion by an opposing party, the court may impose
sanctions on a party who fails to appear for that party's
own deposition. Fed.R.Civ.P. 37(d)(1)(A)(i). Rule 37(d)
incorporates the sanctions listed in Rule 37(b)(2)(A).
Fed.R.Civ.P. 37(d)(3). Such sanctions may include, inter
alia, prohibiting a party from proceeding with or
defending against a claim, dismissal of the action in whole
or in part, or entry of default judgment against the
noncompliant party. Fed.R.Civ.P. 37(b)(2)(A)(i)-(vii).
Alternatively, or in addition to the enumerated sanctions in
Rule 37(b)(2)(A), “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 expense
unjust.” Fed.R.Civ.P. 37(d)(3).
avers that Given's discovery violations warrant sanctions
under Rule 37. Specifically, Love's seeks dismissal of
Given from this action, an award of costs and fees associated
with preparation for Given's deposition, an award of
costs and fees for preparation of the instant motion for
sanctions, and an order striking Given's declaration in
support of plaintiffs' motion for conditional
certification.The court will address Love's requests