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Pennington v. Fluor Corp.

United States District Court, D. South Carolina, Rock Hill Division

May 3, 2019

Harry Pennington, III, on behalf of himself and all others similarly situated; and Timothy Lorentz, on behalf of himself and all others similarly situated, Plaintiffs,
v.
Fluor Corporation, Fluor Enterprises, Inc., SCANA Corporation, Fluor Daniel Maintenance Services, Inc., South Carolina Electric & Gas Company, Defendants. Lawrence Butler, Lakeisha Darwish, Darron Eigner, Jr., Bernard A. Johnson, and Jimi Che Sutton, Plaintiffs,
v.
Fluor Corporation and Fluor Enterprises, Inc., Defendants.

          ORDER

         This matter is before the court for review of Fluor Corporation, Flour Enterprises, Inc., and Fluor Daniel Maintenance Services, Inc.'s (collectively, “Fluor Defendants”) Motions to Compel filed on February 1, 2019. (ECF Nos. 87, 141.) Within their Motions, Fluor Defendants seek “complete discovery responses from [n]amed Plaintiffs Darron Eigner, Jr. (“Eigner”) and Bernard A. Johnson (“Johnson”).” (ECF No. 87 at 1-2; ECF No. 141 at 1-2.) Plaintiffs Lawrence Butler, Lakeisha Darwin, Eigner, Johnson, and Jimi Che Sutton (collectively, “Butler Plaintiffs”) responded to Fluor Defendants' Motion on February 15, 2019. (ECF No. 142.) Butler Plaintiffs request the court to refuse to completely dismiss Eigner and Johnson from the instant action, but “issue an order compelling Johnson and Eigner to respond to the Fluor [Defendants'] [d]iscovery [r]equests within a reasonable time following the order or they will be removed as named plaintiffs while maintaining their eligibility to be class members.” (Id. at 4, 8.) For the reasons stated herein, the court GRANTS IN PART and DENIES IN PART Fluor Defendants' Motions to Compel (ECF Nos. 87, 141). Specifically, the court GRANTS Defendants' Motions to the extent that (1) Eigner and Johnson must respond to discovery requests, but DENIES WITHOUT PREJUDICE (1) Fluor Defendants' request to dismiss Eigner and Johnson from the action, and (2) Fluor Defendants' request for an award of attorney's fees and costs relating to the Motions to Compel (ECF Nos. 87, 141). Therefore, the court ORDERS Eigner and Johnson to adequately respond to Fluor Defendants' discovery requests by May 10, 2019, at 5:00 p.m., and ORDERS the removal of Eigner and Johnson as named Plaintiffs in this action if they do not respond by May 10, 2019, at 5:00 p.m.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Butler Plaintiffs commenced this action in the United States District Court for the District of South Carolina on August 8, 2017. (ECF No. 1.) Within their Complaint, Butler Plaintiffs allege that Fluor Defendants committed violations of the Worker Adjustment and Retraining Notification Act (“WARN Act”), 29 U.S.C. §§ 2101-2109.[1] (Id. at 3-7 ¶¶ 16-39.) Specifically, Butler Plaintiffs contend that “[Fluor] Defendants failed to give [Butler Plaintiffs] written notice that complied with the requirements of the WARN Act.” (Id. at 7 ¶ 36.) Butler Plaintiffs seek “the sum of: their unpaid wages, salary, commissions, bonuses, accrued holiday pay, accrued vacation pay, pension and 401(k) contributions and other [Consolidated Omnibus Budget Reconciliation Act (“COBRA”), 29 U.S.C. §§ 1161-1169, ] benefits, for 60 days, that would have been covered and paid under then-applicable employee benefit plans . . ., all determined in accordance with the WARN Act . . . .” (Id. at 8.)

         Fluor Defendants filed the instant Motions to Compel on February 1, 2019. (ECF Nos. 87, 141.) Fluor Defendants maintain that “Eigner and Johnson have not provided complete discovery responses to Fluor Defendants' initial discovery requests, which were originally due more than four months ago, as required by Federal Rules of Civil Procedure 33(b) and 34(b)(2).” (ECF No. 87 at 5; ECF No. 141 at 5.) Purportedly, Eigner and Johnson's initial discovery responses, which were served on October 1, 2018, only “contained . . . general, boilerplate objections.” (ECF No. 87 at 5; ECF No. 141 at 5.) Despite Eigner and Johnson receiving five extensions over a four month period, Fluor Defendants argue that “[n]either Eigner nor Johnson has provided any responsive information or documents to date . . . .” (ECF No. 87 at 5; ECF No. 141 at 5.) Because of Eigner and Johnson's noncompliance with responding to discovery requests and their own legal counsel, Fluor Defendants contend that Eigner and Johnson “have abandoned their interest in participating in this lawsuit” and should, therefore, be dismissed from the case. (ECF No. 87 at 5- 6; ECF No. 141 at 5-6.) In addition to responses to their initial discovery requests, Fluor Defendants also seek “payment of all reasonable expenses, ” including “attorneys' fees, costs, and any further relief the [c]ourt deems just and proper.” (ECF No. 87 at 5-6; ECF No. 141 at 5-6.)

         Butler Plaintiffs responded to Fluor Defendants' Motion on February 15, 2019. (ECF No. 142.) Butler Plaintiffs admit that there is “difficulty [in] finalizing responses from Johnson and Eigner.” (ECF No. 142 at 3.) Butler Plaintiffs expressly concede that the court should “issue an order compelling Johnson and Eigner to respond to the [] [d]iscovery [r]equests within a reasonable time following the order[, ]” but should refuse to dismiss Eigner and Johnson from the instant case and, instead, remove them as “named plaintiffs” in the event they do not respond to Fluor Defendants' discovery requests. (Id. at 4, 8.) According to Butler Plaintiffs, the dismissal of Eigner and Johnson is improper because there is no evidence of bad faith or dilatory behavior; Fluor Defendants “can hardly show prejudice . . . when the vast majority of the discovery requests seek information that . . . Fluor Defendants already possess”; and there are less drastic alternatives, which are likewise effective, to dismissing Eigner and Johnson from the action. (Id. at 4-7.)

         Fluor Defendants replied to Butler Plaintiffs' Response on February 22, 2019. (ECF Nos. 90, 144.) Fluor Defendants emphasized that the parties only “disagree with respect to the impact of [Eigner and Johnson's] failure to comply with the [c]ourt's Order.” (ECF No. 90 at 2; ECF No. 144 at 2.) Moreover, Fluor Defendants submit that their possession of “some of the documents or information requested from Eigner and Johnson is not a valid basis for objection to [their] discovery requests.” (ECF No. 90 at 2; ECF No. 144 at 3.) Lastly, Fluor Defendants believe that the removal of Eigner and Johnson as named plaintiffs would not serve as “an effective sanction” and “would not serve to deter any additional class members from ignoring [their] discovery requests . . . .” (ECF No. 90 at 2; ECF No. 144 at 4.) Lastly, Fluor Defendants clarified that they do not seek immediate dismissal of Eigner and Johnson, but do seek dismissal if they fail to comply with the court's Order compelling them to respond to their discovery requests. (ECF No. 90 at 2, 4; ECF No. 144 at 2, 4.) Because this matter has been extensively briefed and argued, it is now ripe for the court's review. See generally Sauls v. Wyeth Pharm., Inc., 846 F.Supp.2d 499, 501 (D.S.C. 2012) (“The parties have fully briefed the issues, and this matter is ripe for consideration.”).

         II. LEGAL STANDARD

         Under Rule 26(b)(1) of the Federal Rules of Civil Procedure:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable.

         However, a party may not discover “documents and tangible things that are prepared in anticipation of litigation” unless “they are otherwise discoverable under Rule 26(b)(1)” and the moving party shows “that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed.R.Civ.P. 26(b)(3) (emphasis added). Generally, the scope of discovery under Rule 26 is broad. See Moore v. Bass Pro Outdoor World, LLC, C/A No. 2:17-cv-3228-RMG, 2018 WL 2980328, at *1 (D.S.C. June 14, 2018) (citations omitted).

         A moving party may move to compel discovery if the opposing party fails to make a requested disclosure, including an inadequate answer or production. Fed.R.Civ.P. 37(a)(3). For example, when a party declines to answer an interrogatory or comply with a request for production, the serving party “may move for an order compelling an answer, designation, production, or inspection.” Fed.R.Civ.P. 37(a)(3)(B). The court must treat an “evasive or incomplete disclosure, answer, or response . . . as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4). Unless an objection is justified, the court “must order that an answer be served.” Fed.R.Civ.P. 36(a)(6). Federal district courts have “wide latitude in controlling discovery and [their] rulings will not be overturned absent a showing of clear abuse of discretion.” Ardrey v. United Parcel Serv., 798 F.2d 679, 683 (4th Cir. 1986). See also Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995). Therefore, using its discretion, the court may “accept, at face value, a party's representation that it has fully produced all materials that are discoverable.” Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 637 (D. Minn. 2000).

         III. DISCUSSION

         As an initial matter, there is a mutual consensus between the parties that Eigner and Johnson have failed to comply with Fluor Defendants' discovery requests. (Compare ECF No. 87 at 5, and ECF No. 141 at 5, with ECF No. 142 at 3-4, 8.) This is so because Fluor Defendants, all of whom take issue with Eigner and Johnson's “general, boilerplate objections, ” “seek an [o]rder compelling Eigner and Johnson to respond fully to Fluor Defendants' initial discovery requests.” (ECF No. 87 at 5; ECF No. 141 at 5.) Butler Plaintiffs do not suggest that their “general, boilerplate objections” were permissible, but, instead, disagree with “the drastic punishment” of removing Eigner and Johnson from the action. (ECF No. 142 at 4, 8.) Tellingly, Butler Plaintiffs ask the court to “order that, if [Eigner and Johnson] do not respond to [] Fluor Defendants' [d]iscovery [r]equests within the time required by the [c]ourt, they will be removed as named plaintiffs while maintaining their eligibility to be class members.” (Id. at 8.) Accordingly, as there is not a dispute about whether Eigner and Johnson should affirmatively comply with and respond to Fluor Defendants' discovery requests, the court grants Fluor Defendants' motion in this regard.

         Having determined that Eigner and Johnson must comply with Fluor Defendants' discovery requests, the court must next determine whether it should issue a sanction. See Fed. R. Civ. P. 37(d)(1)(A)(ii) (“The court where the action is pending may, on motion, order sanctions if: . . . (a) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.”). Rule 37 provides a federal district court “wide discretion to impose sanctions for a party's failure to comply with its discovery orders.” Mut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989). Federal district courts are permitted to utilize the sanctions outlined in Rule 37(b)(2)(A)(i)-(vii). However, federal district courts also “have the authority to dismiss cases under Federal Rules of Civil Procedure 37 and 41 as part of courts' ‘comprehensive arsenal of Federal Rules and statutes to protect themselves from abuse.'” LaFleur ...


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