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. 293), filed January 23, 2012, including a request for costs pursuant to Fed.R.Civ.P. 41(d), Plaintiffs' Cross-motion for a Protective Order (Doc. No. 297), filed February 13, 2012, and Plaintiffs' Motion to File an Amended Complaint (Doc. No. 299), filed February 16, 2012.
Defendants to this action, commenced on May 22, 2008, are various health care organizations, operating under the direction of Defendant Catholic Health System, Inc. ("Catholic Health System" or "CHS"), a not-for-profit New York Corporation, through which comprehensive medical care and related medical services are provided in Western New York by more than 30 health care facilities, including hospitals, primary care centers, diagnostic and treatment centers, a surgery center, long-term care facilities, adult homes, home care agencies, and other community health ministries. 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 meal breaks, (2) time immediately prior to and after scheduled work shifts, and (3) while attending training sessions conducted by Defendants. According to Plaintiffs, pursuant to a Break Deduction Policy maintained by CHS throughout its facilities and centers, time is deducted from the pay of hourly workers for a meal break, regardless of whether the employee works during or through the meal break. 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.
Plaintiffs estimate that CHS employs approximately 7,800, many of whom are hourly employees who may be eligible for inclusion in the class action. In addition to four named Plaintiffs ("named Plaintiffs"), a sample group of 50 other hourly employees have been identified as opt-in Plaintiffs ("opt-in Plaintiffs"), in the 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. 86) ("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. 101), 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. 2008-9074 ("state action 2008-9074") and 2008-9075 ("state action 2008-9075") ("state court actions"), asserting the same ten claims voluntarily dismissed from the instant action and an estoppel claim, against the same defendants in the state court actions. In particular, state action 2008-9075 includes claims under New York common law for conversion, fraud and deceit, negligent misrepresentation, and estoppel.
In a Decision and Order filed November 25, 2008 (Doc. No. 147) ("November 25, 2008 D&O"), Chief District Judge William M. Skretny denied the motion to dismiss except as to the NYLL claim 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 2008-9074 was assigned Docket No. 08-CV-952S, and state action 2008-9075 was assigned Docket No. 08-CV-948S ("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. 277).
At the commencement of discovery in the instant action, the parties agreed to conduct discovery of only a sample group of Plaintiffs, rather than seeking discovery from all members of the potential class. In particular, the parties agreed that discovery would be conducted with regard to all four named Plaintiffs ("named Plaintiffs"), and a sample group of 50 randomly selected from the list of Plaintiffs who chose to opt-in to the litigation ("opt-in Plaintiffs") ("first sample group"). Discovery Stipulation, Defendants' Motion to Compel Exh. A (Doc. No. 293-2). On November 2, 2010, Defendants served its First Set of Interrogatories and Amended First Request for Production of Documents ("Discovery Demands") on the named Plaintiffs and the first sample group of 50 randomly selected opt-in Plaintiffs. Although all four named Plaintiffs responded to the First Discovery Demands, only 20 of the 50 opt-in Plaintiffs in the first sample group selected for discovery responded. By letter dated September 14, 2011, Plaintiffs' counsel advised that 15 of those non-responding first sample group Plaintiffs had chosen to cease participating in the action, and on October 4, 2011, those 15 opt-in Plaintiffs were voluntarily dismissed from this action with prejudice. In September 11, 2011, the parties agreed to randomly select 60 other opt-in Plaintiffs to replace the non-responding 30 opt-in Plaintiffs ("second sample group"), on whom Defendants' Discovery Demands were then served. On November 30, 3011, responses to the Discovery Demands from only 26 of the second sample group of 60 opt-in Plaintiffs were served on Defendants. Further, two of the 20 opt-in Plaintiffs from the first sample group who provided responses to the Discovery Demands have since sought to opt-out of this action.*fn2 As such, to date, Defendants have received responses from only a total of 48 Plaintiffs, including the four named Plaintiffs, 18 opt-in Plaintiffs from the first sample group, and 26 replacement opt-in Plaintiffs from the second sample group.
By email to Plaintiffs' counsel dated December 8, 2011, Defendants inquired whether attempts to obtain additional responses from the second sample group opt-in Plaintiffs were continuing, or whether Plaintiffs' efforts in that regard had been exhausted. Emails, Defendants' Motion to Compel Exh. E (Doc. No. 293-6). The parties then engaged in communications attempting to determine whether additional responses from the second sample group opt-in Plaintiffs would be forthcoming. To date, further responses from the second sample group opt-in Plaintiffs have been served on Defendants.
In a Decision and Order filed January 17, 2012 (08-CV-952S, Doc. No. 34 ("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.
On January 23, 2012, Defendants filed a Motion to Compel and Dismiss (Doc. No. 293) ("Motion to Compel"), Defendants' instant motion, seeking an order compelling responses by all opt-in Plaintiffs in both the first and second sample groups who have been served with Discovery Demands and who have not been dismissed from the action, and to dismiss the FLSA claims as to those opt-in plaintiffs who have failed to respond to discovery. Defendants' Motion to Compel is support by the attached Declaration of Todd R. Shinaman, Esq. (Doc. No. 293-1) ("Shinaman Declaration"), and exhibits A through J (Docs. Nos. 293-3 through 293-12) ("Defendants' Exh(s). __"), and Defendants' Memorandum of Law in Support of Motion to Compel Discovery and/or Motion to Dismiss Non-responsive Opt-in Plaintiffs (Doc. No. 294) ("Defendants' Memorandum - Motion to Compel").
In opposition to Defendants' Motion to Compel, Plaintiffs filed on February 13, 2012, their Cross-Motion for a Protective Order (Doc. No. 297) ("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. 297-1) ("Plaintiff's Memorandum - Motion for Protective Order"), and the Affirmation of Sarah E. Cressman, Esq. (Doc. No. 297-2) ("Cressman Affirmation - Motion for Protective Order").
On February 16, 2012, Plaintiffs filed a motion seeking leave to file an amended complaint (Doc. No. 299) ("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 2008-9075 that was subsequently removed to this court, assigned Docket No. 2008-948S, 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. 299-1) ("Plaintiffs' Memorandum - Motion to Amend), the Affirmation of Sarah E. Cressman (Doc. No. 299-2) ("Cressman Affirmation - Motion to Amend"), and a copy of the Proposed Second Amended Class Action Complain (Doc. No. 299-3) ("Proposed Second Amended Complaint"). Additional exhibits in support of Plaintiffs' Motion to Amend were filed on February 23, 2012 (Doc. No. 301).
Also filed on February 23, 2012, were The Reply Affidavit of Mark A. Molloy, Esq. in Support of Motion to Compel Discovery and/or Motion to Dismiss Non-Responsive Opt-in Plaintiffs (Doc. No. 302) ("Molloy Reply Affidavit"), and the Reply Brief in Support of Motion to Compel Discovery and/or Motion to Dismiss Non-Responsive Opt-in Plaintiffs ("Defendants' Reply - Motion to Compel"). Plaintiffs filed their Reply Memorandum of Law in Further Support of Plaintiffs' Cross-Motion for Protective Order (Doc. No. 302) ("Plaintiff's Reply - Motion for Protective Order").
On March 5, 2012, Defendants filed the Attorney Declaration of Mark A. Molloy, Esq., in Opposition to Motion to Amend Complaint (Doc. No. 305) ("Molloy Decaration -Motion to Amend"), and the Memorandum of Law in Opposition to Motion to Amend Complaint (Doc. No. 306) ("Defendants' Response - Motion to Amend").
On March 12, 2012, Plaintiffs filed the Reply Memorandum of Law in Support of Plaintiffs' Cross-Motion for Protective Order (Doc. No. 311) ("Plaintiffs' Reply - Motion for Protective Order"). On March 19, 2012, Plaintiffs filed the Reply Memorandum of Law in Support of Motion to Amend Complaint (Doc. No. 313) ("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 DENIED; and Plaintiffs' Motion to Amend is DENIED. Defendants' request for costs pursuant to Rule 41(d) is DISMISSED as moot.
1. Motions to Compel and for Protective Order
To assist the reader, the court first recapitulates the events precipitating Defendants' Motion to Compel and Plaintiffs' Motion for a Protective Order. According to a Stipulation executed by the parties in August 2011 ("Discovery Stipulation"),*fn3 the parties agreed to conduct "Phase 1" discovery of the four named Plaintiffs, as well as 50 randomly-selected opt-in Plaintiffs. The 50 opt-in Plaintiffs were randomly selected by compiling a list of all opt-in Plaintiffs, assigning a computer-generated random number to each of the opt-in Plaintiffs, sorting the opt-in Plaintiffs in numeric order from the lowest to the highest of the randomly-assigned numbers, and selecting the first 50 names from the resulting list ("the first sample group"). The parties' decision to conduct discovery of these 50 opt-in Plaintiffs was predicated on the belief, now understood as mistaken, that all 50 randomly-selected opt-in Plaintiffs in the first sample group would respond given that such Plaintiffs had agreed to opt into the FSLA portion of this action. On November 2, 2010, Defendants served its First Set of Interrogatories and Amended First Request for Production of Documents on the first sample group and all four named Plaintiffs. Although responses were received from all four named Plaintiffs, only 20 of the 50 opt-in Plaintiffs in the first sample group provided responses. By letter from Plaintiffs' counsel Michael J. Lingle ("Lingle") dated September 14, 2011 ("September 14, 2011 Letter"),*fn4 Defendants were advised that 15 of the opt-in Plaintiffs in the first sample group had chosen to opt-out. Those 15 Plaintiffs were voluntarily dismissed from this action on October 21, 2011 (Doc. No. 289). Mr. Lingle also identified "five [non-responsive opt-in] Plaintiffs who have been unable to complete the interrogatories for other reasons," and "four opt-in plaintiffs for whom [Plaintiffs] have insufficient contact information." September 14, 2011 Letter at 1. By letter dated September 19, 2011 ("September 19, ...