THOMAS & SOLOMON, LLP, MICHAEL J. LINGLE, SARAH E. CRESSMAN, of Counsel, Rochester, New York, Attorneys for Plaintiffs.
NIXON PEABODY, LLP, MARK A. MOLLOY, TODD R. SHINAMAN, JOSEPH A. CARELLO, of Counsel, Buffalo, New York, Attorneys for Defendants.
REPORT and RECOMMENDATION
LESLIE G. FOSCHIO, Magistrate Judge.
By order of Hon. William M. Skretny, dated January 6, 2010 (Doc. No. 243), this matter was referred to the undersigned for all non-dispositive pretrial matters pursuant 28 U.S.C. § 636(b)(1)(A). The matter is presently before the court on Defendants' Renewed Motion To Dismiss Non-Responsive Opt-In Plaintiffs pursuant to Rule 37, filed November 9, 2012 (Doc. No. 394) and a motion by Plaintiffs' counsel, filed November 26, 2012 (Doc. No. 396), requesting permission to withdraw pursuant to Local R.Civ.P. 83.2(d)(1). By order dated April 4, 2013, Chief Judge Skretny referred Defendants' Renewed Motion to Dismiss Non-Responsive Opt-In Plaintiffs to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
This is an action for unpaid wages and overtime pay brought under the Fair Labor Standards Act ("FLSA") and New York State Labor Law on behalf of Defendants' hourly employees, particularly nurses, other heath care staff, clerical, and maintenance workers. Plaintiffs' FLSA claims have been conditionally certified; Plaintiffs' request for class certification of Plaintiffs' state law wage claims is pending.
In support of Defendants' motion, Defendants filed a Declaration In Support Of Motion To Dismiss Non-Responsive Opt-In Plaintiffs, filed November 9, 2012 (Doc. No. 394-1) ("Molloy Declaration") along with exhibits A-C (Doc. No. 394-2, 394-3, 394-4) ("Molloy Declaration Exh(s). ___"). In opposition, Plaintiffs filed, on November 26, 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. 399) ("Cressman Affirmation") together with exhibit A (Doc. No. 399-1) ("Cressman Affirmation Exh. A"). On December 6, 2012, Defendants filed a Reply In Support Of Renewed Motion To Dismiss Non-Responsive Opt-In Plaintiffs (Doc. No. 409) ("Molloy Reply Declaration").
As noted, on November 26, 2012, Plaintiffs' counsel filed a Motion to Withdraw As Counsel for certain individuals, a list of whom is attached as Exhibit A to the Affirmation of Sarah E. Cressman (Doc. No. 396) ("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. 396-1) ("Plaintiffs' Counsel's Memorandum") and the Affirmation of Sarah E. Cressman (Doc. No. 396-2) ("Cressman Affirmation In Support of Motion To Withdraw") attaching exhibits A and B (Doc. Nos. 396-3 and 396-4) ("Cressman Affirmation Exh(s). ___"). On December 12, 2012, Defendants filed an Attorney Declaration In Opposition To Plaintiffs' [ sic ] Motion To Withdraw As Counsel For Certain Plaintiffs (Doc. No. 412) ("Shinaman Declaration"). Oral argument was deemed unnecessary. Based on the following, Defendants' motion should be GRANTED in part, and DENIED in part; Plaintiffs' motion is DISMISSED as moot.
Defendants' First Set of Interrogatories and Amended First Request for Production of Documents was served November 2, 2010. In order to facilitate the numerous opt-in Plaintiffs, the parties agreed to serve such requests upon a sample group of 50 randomly selected opt-in Plaintiffs in accordance with a Discovery Stipulation agreed to by the parties in August 2011. Because only 20 of this initial sample group provided responses, a second sample group of 60 randomly selected optin Plaintiffs was designated by Plaintiffs' counsel and served with Defendants' discovery requests. On November 30, 2011, Plaintiffs served Defendants with responses from 26 of the second sample group. As a result of the failure of all 110 opt-in Plaintiffs, designated by Plaintiffs as the sample group from which to obtain discovery to respond to Defendants' discovery requests, Defendants moved to compel such responses or to dismiss by motion filed January 23, 2012 (Doc. No. 293). On July 19, 2012, the court granted Defendants' motion to compel and denied Defendants' motion to dismiss, and directed the unresponsive Plaintiffs to provide responses to Defendants' discovery requests within 30 days, with leave to Defendants to seek dismissal should the unresponsive opt-in Plaintiffs fail to comply with the court's order. HInterberger v. Catholic Health Systems, Inc., 08-CV-380S(F), Decision and Order, July 19, 2012 (Doc. No. 328) ("July 19, 2012 D&O") at 24-25. Alleging the unresponsive opt-in Plaintiffs who were subject to the July 19, 2012 D&O had then failed to provide the requested discovery in compliance with the court's order, Molloy Declaration §§ 8-9, Defendants served, on November 19, 2012 (Doc. No. 394), a motion to dismiss such non-compliant opt-in Plaintiffs pursuant to Fed.R.Civ.P. 37. More specifically, Defendants assert that the 61 named opt-in Plaintiffs as listed in the Molloy Declaration Exh. A, should have both their FLSA and state law claims dismissed with prejudice based on their failure to comply with the court's July 19, 2012 D&O. Molloy Declaration §§ 15-16 ("all of [Plaintiffs'] putative claims in the action, and not just [Plaintiffs'] FLSA claims, should be dismissed entirely, with prejudice"). Defendants also requested the court award Defendants' expenses, including attorneys fees, incurred in connection with Defendants' motion pursuant to Fed.R.Civ.P. 37(a)(5)(A). Molloy Declaration §§ 20-21; Molly Declaration § 30 (requesting expenses pursuant to Fed.R.Civ.P. 37(b)(2)(C).
Plaintiffs do not contest Defendants' request for dismissal of the 27 opt-in Plaintiffs who have failed to provide discovery in compliance with the July 19, 2012 D&O, Cressman Affirmation § 13; rather, Plaintiffs' counsel states that the failure of these opt-in Plaintiffs to communicate with counsel necessitated Plaintiffs' counsel's motion to withdraw. Id. Plaintiffs' counsel also objects to Defendants' motion insofar as it seeks dismissal of the state, as well as the FLSA, claims of the non-responsive opt-in Plaintiffs. Cressman Affirmation §§ 6-8. Plaintiffs further represent that 24 of the non-responsive opt-in Plaintiffs wish to discontinue their respective FLSA claims, but that Defendants insisted on execution of a Stipulation of Discontinuance of these Plaintiffs' FLSA claims as well as their state claims, and, as such, because these Plaintiffs refused to execute such a stipulation, no stipulation of discontinuance for these 24 opt-in Plaintiffs was filed. The names of these opt-in Plaintiffs, Cressman Affirmation § 4, as well as the 27 other opt-in Plaintiffs, are listed in Cressman Affirmation Exh. A at 3. Plaintiffs' counsel also states that Defendants seek to dismiss Joanne Gajewski one opt-in Plaintiff, Cressman Affirmation Exh. A at 3, as deceased and unable to respond to Defendants' discovery requests, Cressman Affirmation § 11, and that Plaintiffs' counsel "anticipated" seeking substitution for this deceased person pursuant to Fed.R.Civ.P. 25. Id. Plaintiffs' counsel further avers that nine opt-in Plaintiffs have, as of the date of the Cressman Affirmation, November 26, 2012 (Doc. No. 399), after being "notified" of Defendants' motion, indicated to Plaintiffs' counsel an "intention" to provide the discovery responses ordered by the court, and that as Plaintiffs' counsel "anticipates that responses from these individuals will be forthcoming, " Cressman Affirmation § 12; Cressman Affirmation Exh. A at 2-3 (listing names), dismissal as to these opt-in Plaintiffs should be denied.
In support of Plaintiffs' counsel's motion to withdraw, Plaintiffs' counsel attempted to communicate with the unresponsive opt-in Plaintiffs, unsuccessfully, in an attempt to obtain responses to Defendants' discovery requests over a two-year period, and in some instances contact occurred "up to twenty times." Cressman Affirmation In Support of Motion To Withdraw § 6. Despite counsel's repeated attempts to obtain the cooperation of these opt-in Plaintiffs, including Plaintiffs' counsel's letter of November 19, 2012 advising that absent an immediate response from the unresponsive opt-in Plaintiffs, counsel would seek to withdraw, no responses were ...