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Given v. Love's Travel Stops & Country Stores, Inc.

United States District Court, M.D. Pennsylvania

May 22, 2018

ZACHARY GIVEN, KRISTOPHER LAWSON, VINCENT MCCLEERY, and SEAN MCMURRAN, individually and on behalf of other persons similarly situated, Plaintiffs



         Plaintiffs 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).

         I. Factual Background & Procedural History[1]

         Love's 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).

         Plaintiffs 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.

         Discovery 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).

         Plaintiffs' 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).

         At a 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.

         Love's 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.

         II. Legal Standard

         Rules 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).

         III. Discussion

         Love's 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.[2]The court will address Love's requests seriatim.

         A. ...

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