The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
This case was referred to the undersigned by Honorable William M. Skretny on January 6, 2010 for all non-dispositive pretrial matters, pursuant to 28 U.S.C. § 636(b)(1)(A). The matter is presently before the court on Defendants' Motion to Compel and to Dismiss (Doc. No. 337), filed January 9, 2012, Plaintiffs' Cross-motion for a Protective Order (Doc. No. 340), filed February 2, 2012, and Plaintiffs' Motion to File an Amended Complaint (Doc. No. 344), filed February 16, 2012.
Defendants to this action, commenced on May 22, 2008, are various health care organizations, operating under the direction of Defendant Kaleida Health ("Kaleida Health"), a not-for-profit New York Corporation, through which comprehensive medical care and related medical services are provided in Western New York by approximately 75 hospitals, nursing homes, clinics, laboratories, and out-patient offices. Plaintiffs are Defendants' non-exempt hourly employees ("Plaintiffs" or "hourly employees")), who allege Defendants violated the Fair Labor Standards Act ("FLSA"), and New York Labor Law ("NYLL") by failing to pay such hourly employees regular hourly or overtime rates for the time Defendants permitted or required hourly employees to work, including (1) during assigned one-hour meal breaks, (2) time immediately prior to and after scheduled work shifts, and (3) while attending training sessions conducted by Defendants. Because the alleged uncompensated work results from policies and practices adopted and applied by Defendants to all facilities where Defendants' hourly employees work, Plaintiffs assert both a representative collective action on behalf of all similarly situated employees subject to the FLSA's protection, and a class action pursuant to Fed.R.Civ.P. 23 ("Rule 23"), to enforce the rights of Defendants' hourly employees under the NYLL wage and hours provisions for unpaid work at the employees' regular pay rate or, as applicable, overtime rates.
It is estimated by Plaintiffs that as many as 40,000 present and former hourly employees may be eligible for inclusion in the class action. In addition to six named Plaintiffs ("named Plaintiffs"), a sample group of 100 other hourly employees have been identified as opt-in Plaintiffs ("opt-in Plaintiffs"), in collective action which has been conditionally certified. The class action claims have not been certified.
The original complaint contained thirteen claims for relief, including (1) violation of FLSA; (2) NYLL violations; (3) breach of contract; (4) breach of implied covenant of good faith and fair dealing; (5) conversion; (6) unjust enrichment/restitution; (7) quantum meruit; (8) fraud and deceit; (9) negligent misrepresentation; (10) failure to keep accurate records pursuant to the Employee Retirement Income Security Act ("ERISA"); (11) breach of fiduciary duty in violation of ERISA; (12) violation of the Racketeer Influenced and Corrupt Organization Act ("RICO"); and (13) estoppel. On July 1, 2008, Defendants moved to dismiss the Complaint in its entirety for failing to state a claim (Doc. No. 90) ("motion to dismiss"). On August 1, 2008, while Defendants' motion to dismiss remained pending, Plaintiffs, pursuant to Fed.R.Civ.P. 41(a)(1)(A), voluntarily and without prejudice dismissed their third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth claims for relief (Doc. No. 112), such that only the FLSA, NYLL, and estoppel claims remain pending before the court in this action.
On August 6, 2008, Plaintiffs commenced two separate actions in New York Supreme Court, Erie County, Index Nos. 2008-9072 ("state action 2008-9072") and 2008-9073 ("state action 2008-9073") ("state court actions"), asserting the same ten claims voluntarily dismissed from the instant action, against the same defendants in the state court actions, as well as an estoppel claim. In particular, state action 2008-9072 includes claims under New York common law for conversion, fraud and deceit, negligent misrepresentation, and estoppel, whereas state action 2008-9073 alleges violations of ERISA for failure to keep accurate records and breach of fiduciary duty, and RICO, as well as New York common law claims for estoppel, breach of contract, breach of implied covenant of good faith and fair dealing, unjust enrichment/restitution, and quantum meruit. On August 22, 2008, Defendants filed an amended motion to dismiss (Doc. No. 128) ("amended motion to dismiss"), seeking to dismiss the remaining three claims for failure to state a claim.
In a Decision and Order filed November 25, 2008 (Doc. No. 149) ("November 25, 2008 D&O"), Chief District Judge William M. Skretny denied the amended motion to dismiss except as to the NYLL claims pertaining to uncompensated time when Plaintiffs worked during or through scheduled meal breaks. On December 3, 2008, Plaintiffs served Defendants with the summonses and complaints for the state court actions, which Defendants removed to this court on December 23, 2008 on the basis of diversity jurisdiction, and state action 2008-9072 was assigned Docket No. 08-CV-951S, and state action 2008-9073 was assigned Docket No. 08-CV-950S ("removed state court actions"). On December 31, 2008, Defendants moved in the instant action, as well as in the removed state court actions to consolidate the removed state court actions with the instant action, and to dismiss all claims contained in the removed state court actions. On June 25, 2010, Defendants' motions to consolidate actions were denied because the motions to dismiss pending in the instant action, and to remand pending in the removed state court actions could moot the motions to consolidate. (Doc. No. 301).
On September 8, 2010, Defendants served its Amended First Set of Interrogatories and Amended First Request for Production of Documents ("First Discovery Demands") on the named Plaintiffs and the opt-in Plaintiffs. On June 3, 2011, Defendants were served with responses to the First Discovery Demands from all named Plaintiffs, but only 42 opt-in Plaintiffs ("First Discovery Demands Responses"). On September 11, 2011, the parties agreed to randomly select 56 employees to replace the non-responding 58 opt-in Plaintiffs ("replacement opt-in Plaintiffs"), on whom Interrogatories and Requests for Production of Documents were then served ("Replacement Discovery Demands").
Meanwhile, on August 31, 2011 counsel for Defendants and Plaintiffs commenced exchanging a series of letters in which Defendants' counsel asserted that some of the First Discovery Demands Responses were inadequate and Plainitffs' counsel made repeated assurances that complete responses would be forthcoming. To date, no supplemental responses were ever received, nor have Defendants received any responses to the Replacement Discovery Demands. Defendants' present motion seeks to compel responses and supplemental responses to interrogatories, and to dismiss the FLSA claims as to those opt-in plaintiffs who have failed to respond to discovery.
On January 9, 2012, Defendants filed a Motion to Compel and Dismiss (Doc. No. 337) ("Motion to Compel"), Defendants' instant motion, seeking an order compelling discovery responses and supplemental responses from Plaintiffs, and dismissing with prejudice the FLSA claims of those opt-in Plaintiffs who fail to comply with discovery. Defendants' Motion is supported by the attached Declaration of Susan C. Roney, Esq., in Support of Motion to Compel and to Dismiss (Doc. No. 337-1) ("Roney Declaration"), and exhibits A through F (Docs. Nos. 337-2 through 337-7) ("Defendants' Exh(s). __").
In a Decision and Order filed January 17, 2012 (08-CV-951S, Doc. No. 32 ("January 17, 2012 D&O"), Chief District Judge Skretny denied the motion to remand the state court action on the basis that the New York common law claims relating to unpaid overtime wages were preempted by the FLSA, dismissing that claim and the fraud claim with prejudice, but dismissing without prejudice the negligent misrepresentation and conversion claims pertaining to unpaid straight-time wages, and also dismissing the estoppel claim, yet permitting Plaintiffs to raise estoppel as an equitable bar in any litigation that may go forward. January 17, 2012 D&O at 23. Judge Skretny further directed that should Plaintiffs seek to replead the New York common law conversion and/or negligent misrepresentation claims, they must do so in the instant action "from which they previously voluntarily dismissed the very same claims." Id. at 23-24.
In opposition to Defendants' Motion to Compel, Plaintiffs filed on February 2, 2012, their Cross-Motion for a Protective Order (Doc. No. 340) ("Motion for Protective Order"), attached to which are a Memorandum of Law in Opposition to Defendants' Motion to Compel and to Dismiss and in Support of Plaintiffs' Cross-Motion for Protective Order (Doc. No. 340-1) ("Plaintiff's Memorandum - Motion for Protective Order"), and the Affirmation of Sarah E. Cressman, Esq. (Doc. No. 340-2) ("Cressman Affirmation - Motion for Protective Order"). On February 13, 2012, Defendants filed the Declaration of Susan C. Roney, Esq., in Further Support of Motion to Compel and to Dismiss and in Opposition to Cross-Motion for Protective Order (Doc. No. 343) ("Roney Reply Declaration").
On February 16, 2012, Plaintiffs filed a motion seeking leave to file an amended complaint (Doc. No. 344) ("Motion to Amend"), to replead the same New York common law claims for conversion and negligent misrepresentation initially brought in this action, then voluntarily dismissed, repleaded in state court action 2008-9072 that was subsequently removed to this court, assigned Docket No. 2008-951S, where they were dismissed without prejudice on January 17, 2012. Attached to the Motion to Amend is the Memorandum of Law in Support of Motion to Amend Complaint (Doc. No. 344-1) ("Plaintiffs' Memorandum - Motion to Amend), the Affirmation of Sarah E. Cressman (Doc. No. 344-2) ("Cressman Affirmation - Motion to Amend"), and a copy of the Proposed Second Amended Class Action Complain (Doc. No. 344-3) ("Proposed Second Amended Complaint"). On February 17, 2012, Plaintiffs filed their Reply Memorandum of Law in Further Support of Plaintiffs' Cross-Motion for Protective Order (Doc. No. 345) ("Plaintiff's Reply - Motion for Protective Order").
On March 5, 2012, Defendants filed the Declaration of Susan C. Roney, Esq., in Opposition to Motion to Amend Complaint (Doc. No. 349) ("Roney Declaration - Motion to Amend"), and the Memorandum of Law in Opposition to Motion to Amend (Doc. No. 350) ("Defendants' Response - Motion to Amend"). On March 19, 2012, Plaintiffs filed a Reply Memorandum of Law in Support of Motion to Amend Complaint (Doc. No. 354) ("Plaintiffs' Reply - Motion to Amend"). Oral argument was deemed unnecessary.
Based on the following, Defendants' Motion to Compel is GRANTED in part and DENIED in part; Plaintiffs' Cross-Motion for a Protective Order is GRANTED in part and DENIED in part; and Plaintiffs' Motion to Amend is DENIED.
1. Motions to Compel and for Protective Order
Defendants move (1) to compel discovery responses to Defendants' discovery demands served on the replacement opt-in Plaintiffs on September 12, 2011, (2) to compel supplemental responses from the named Plaintiffs and those opt-in Plaintiffs who served initial responses to the discovery demands, and (3) to dismiss with prejudice the FLSA claims as to those opt-in Plaintiffs who have failed to serve any responses to Defendants' discovery demands. Roney Declaration ¶¶ 5-12. In opposition, Plaintiffs cross moved for a protective order, asserting Defendants' Motion to Compel is premature and would violate due process insofar as Defendants seek to dismiss the FLSA claims without first providing notice of the potential for dismissal, and that the dismissal of such Plaintiffs would reduce the number of opt-in Plaintiffs. Instead, Plaintiffs seeks an order (1) granting Plaintiff's 30 days to obtain discovery responses from the replacement opt-in Plaintiffs, and (2) resetting the sample size at the number of opt-in Plaintiffs and opt-in replacement Plaintiffs whose responses are produced within the requested additional 30 days for discovery responses. Plaintiff's Memorandum - Motion for Protective Order at 6-12. In further support of the Motion to Compel, Defendants assert Plaintiffs have attempted to shift blame for their non-compliance to Defendants, that even Plaintiffs' counsel has been unable to obtain from opt-in Plaintiffs responses to Defendants' discovery demands, yet none of the opt-in Plaintiffs have made any showing as to why they have yet to respond to the discovery demands. Roney Reply Declaration ¶¶ 2-5. Defendants also, for the first time, suggest as an alternative to dismissing with prejudice the FLSA claims for those opt-in Plaintiffs who have not provided any responses, the court issue a conditional order providing such Plaintiffs with 30 days to serve complete responses to the discovery demands to avoid dismissal. Roney Reply Declaration ¶ 14. In further support of their Motion for a Protective Order, Plaintiffs assert that the requested protective order will not be prejudicial to Defendants, and that Defendants have failed to establish the requisite conditions supporting imposition of sanctions. Plaintiffs' Reply - Motion for Protective Order at 2-4. The court first considers those discovery demands for which Defendants maintain they never received satisfactory answers and still seek supplemental responses.
At the heart of this dispute are seven interrogatories and seven document requests for which Defendants maintain the responses received from the named and opt-in Plaintiffs were deficient, and that no responses were received from the replacement opt-in Plaintiffs. These interrogatories include Interrogatories 4, 5, 6, 8, 9, 10 and 13, and Document Requests 3, 4, 8, 9, 10, 11, and 12.*fn2 ...