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Gordon v. Kaleida Health

United States District Court, Second Circuit

May 21, 2013

CATHERINE GORDON, et al., Plaintiffs,
v.
KALEIDA HEALTH, et al., Defendants.

MICHAEL J. LINGLE, , SARAH E. CRESSMAN, of Counsel THOMAS & SOLOMON, LLP Rochester, New York, Attorneys for Plaintiffs.

SUSAN C. RONEY, of Counsel NIXON PEABODY, LLP, Buffalo, New York, Attorneys for Defendants

JONATHAN W. GREENBAUM, of Counsel COBURN & COFFMAN, PLLC, Washington, D.C., Attorneys for Defendants.

REPORT and RECOMMENDATION

LESLIE G. FOSCHIO, Magistrate Judge.

JURISDICTION

By order of Hon. William M. Skretny, dated January 6, 2010 (Doc. No. 252), this case was referred to the undersigned for all non-dispositive pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A). Presently before the court are Defendants' Renewed Motion To Dismiss The FLSA Claims Of Certain Opt-In Plaintiffs, pursuant to Fed.R.Civ.P. 37, filed August 30, 2012 (Doc. No. 371) ("Defendants' motion") and a motion by Plaintiffs' counsel, filed September 28, 2012 (Doc. No. 380), requesting permission to withdraw pursuant to Local R.Civ.P. 83.2(d)(1).[1] By order dated March 13, 2013, Chief Judge Skretny referred Defendants' motion to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

BACKGROUND

This is an action for unpaid wages and overtime pay brought under the Fair Labor Standards Act ("FLSA") and the New York State Labor Law on behalf of Defendants' hourly employees, particularly nurses, other health care staff, clerical, and maintenance workers. Plaintiffs' FLSA claims have been conditionally certified; Plaintiffs' request for class certification of Plaintiffs' state law wage and hour claims is pending.

As noted, Defendants' motion was filed on August 30, 2012. In support, Defendants filed a Declaration In Support Of Renewed Motion To Dismiss The FLSA Claims Of Certain Opt-In Plaintiffs Pursuant To Rule 37 (Doc. No. 377-1) ("Roney Declaration") along with exhibits A and B (Doc. Nos. 371-2, 371-3) ("Roney Declaration Exh(s). ___"). In opposition, Plaintiffs filed on September 28, 2012, the Affirmation Of Sarah E. Cressman In Opposition To Defendants' Renewed Motion To Dismiss The FLSA Claims Of Certain Opt-In Plaintiffs (Doc. No. 381) ("Cressman Affirmation") together with exhibit A (Doc. No. 381-1) ("Cressman Affirmation Exh. A"). On October 12, 2012, Defendants filed a Reply Attorney Declaration In Further Support of Renewed Motion To Dismiss (Doc. No. 390) ("Roney Reply Declaration") together with exhibit A (Doc. No. 390-1) ("Roney Reply Declaration Exh. A").

Upon the filing of Plaintiffs' opposition to Defendants' motion, by papers also filed September 28, 2012, Plaintiffs' counsel moved, pursuant to Local R.Civ.P. 83.2(d)(1) for leave to withdraw as counsel to certain opt-in Plaintiffs asserting FLSA claims in the collective action who had not responded to Defendants' outstanding discovery requests, and, as a result, are the subject of Defendants' motion (Doc. No. 380) ("Plaintiffs' counsel's motion to withdraw" or "Plaintiffs' counsel's motion"), a Memorandum of Law In Support Of Plaintiffs' Counsel's Motion To Withdraw As Counsel For Unresponsive Opt-In Plaintiffs (Doc. No. 380-1) ("Plaintiffs' Counsel's Memorandum"), and the Affirmation Of Sarah E. Cressman In Support Of Plaintiffs' Counsel's Motion To Withdraw As Counsel For Unresponsive Opt-In Plaintiffs (Doc. No. 380-2) ("Cressman Affirmation") attaching exhibits A & B (Doc. Nos. 380-3, 380-4) ("Cressman Affirmation Exh(s). ___"). In response, on October 26, 2012, Defendants filed the Attorney Declaration In Opposition To Withdraw As Counsel For Certain Plaintiffs (Doc. No. 406) ("Roney Declaration"); on November 2, 2012, Plaintiffs' counsel filed the Reply Affirmation Of Sarah E. Cressman In Further Support Of Plaintiffs' Counsel's Motion To Withdraw As Counsel For Unresponsive Opt-In Plaintiffs (Doc. No. 414) ("Cressman Reply Affirmation") attaching exhibit A (Doc. No. 414-1) ("Cressman Reply Affirmation Exh. A").

Oral argument was conducted on Defendants' motion and Plaintiffs' counsel's motion on November 7, 2012 (Doc. No. 241), and decision reserved. Based on the following, Defendants' motion to dismiss with prejudice the FLSA claims of the 64 opt-in Plaintiffs as listed in the Roney Reply Declaration Exh. A should be GRANTED; Plaintiffs' counsel's motion is DISMISSED as moot.

FACTS[2]

Because of the large number of Plaintiffs who had timely opted-in to Plaintiffs' FLSA collective action, the parties agreed Defendants could obtain discovery directed to Plaintiffs' FLSA claims from both the six named Plaintiffs and a sample of 100 Plaintiffs selected randomly from among the group of several hundred individuals who comprise those Plaintiffs who elected to opt-in to the named Plaintiffs' collective FLSA action ("opt-in Plaintiffs" or "opt-ins"). Roney Declaration § 5. In accordance with this agreement, on September 10, 2010, Defendants served Defendants' Amended First Set of Interrogatories and Amended First Request for Documents on the named Plaintiffs and the opt-in Plaintiffs included in the sample group randomly selected by Plaintiffs' counsel. Roney Declaration § 5. As of June 30, 2011, Defendants had received responses to these discovery requests from the six named Plaintiffs and 42 of the sample group of the designated 100 opt-in Plaintiffs. Roney Declaration § 6. The parties thereafter agreed that to facilitate Defendants' discovery as to the agreed upon 100 member sample of opt-in Plaintiffs, Plaintiffs' counsel would designate an additional 56 opt-in Plaintiffs randomly selected by Plaintiffs' counsel from the remaining group of opt-in Plaintiffs as to whom Defendants' interrogatories and document requests would be served and their respective responses provided to Defendants. Roney Declaration § 6; Cressman Affirmation § 3. It is also undisputed that Defendants' interrogatories and document requests were served on this additional group of opt-in Plaintiffs following their designation by Plaintiffs' counsel on September 12, 2011, and five additional names resulting from a further designation by Plaintiffs' counsel on October 3, 2011. Roney Declaration § § 7-8.[3]

Following discussions by Defendants' counsel with Plaintiffs' counsel regarding when Defendants would receive the expected responses, Roney Declaration § 9, on January 6, 2012, Plaintiffs' counsel advised Defendants that responses to Defendants' discovery requests from 30 of the 56 additional opt-in Plaintiffs selected by Plaintiffs' counsel were forthcoming, and that Plaintiffs' counsel also then expected to provide responses for the "full sample of 100" opt-in Plaintiffs as the parties had agreed. Roney Declaration § 10. The precise method Plaintiffs' counsel would employ to achieve this result was not provided to Defendants. Id. Plaintiffs do not dispute Plaintiffs' counsel advised Defendants on January 6, 2012 that additional opt-in Plaintiffs' responses were to be served on Defendants and that despite counsel's assurance that such responses were expected, as of August 30, 2012 Plaintiffs failed to provide 100 responses from the sample group of opt-in Plaintiffs as the parties had agreed. Roney Declaration § 11. On January 9, 2012, Defendants moved to compel (Doc. No. 337) responses from the named Plaintiffs and opt-in Plaintiffs whose initial responses Defendants had deemed deficient and, as relevant to the instant motion, from certain opt-in Plaintiffs who had up to that time failed to provide any responses or dismiss the FLSA claims of such Plaintiffs. Roney Declaration § 3; Roney Declaration Exh. B (listing the then unresponsive opt-in Plaintiffs). On July 19, 2012, the court granted Defendants' motion to compel and directed those opt-in Plaintiffs from both the initial and supplemental sample groups, who had failed to respond to Defendants' discovery requests at all, to do so within 30 days in order to avoid potential dismissal of their FLSA claims as a sanction pursuant to Fed.R.Civ.P. 37(b)(2)(A)(v). Roney Declaration § 4; July 19, 2012 Decision and Order, 08-CV-378A(F) ("the July 19, 2012 D&O") at 19 (granting Defendants' motion to compel and permission to seek dismissal as to "opt-in Plaintiffs who failed to serve any responses to Defendants' discovery requests"). In the event such Plaintiffs should fail to respond, it was expected that Defendants would move to dismiss against these opt-in Plaintiffs. Id.; July 19, 2012 D&O at 19-20. Notwithstanding the court's order, including its admonition that dismissal of the FLSA claims of the opt-in Plaintiffs who failed to provide discovery in response to Defendants' outstanding requests within 30 days was possible, as of August 30, 2012 no responses were served by this group of opt-in Plaintiffs. Roney Declaration § § 12-13 (asserting 92 opt-in Plaintiffs as being subject to dismissal of their FSLA claims).[4] According to Defendants, the nonresponding opt-in Plaintiffs, who had been ...


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