United States District Court, D. South Carolina, Charleston Division
Patrick Weckesser, on behalf of himself and all others similarly situated, Plaintiff,
Knight Enterprises S.E., LLC, Defendant.
ORDER AND OPINION
Richard M. Gergel United States District Court Judge.
matter is before the Court on Defendant's unopposed
motion to dismiss Opt-In Plaintiff Martin Davila (Dkt. No.
84) and the Parties Joint Motion to Depose Plaintiffs Brian
Rowland and Willie Malone (Dkt. No. 85). For the reasons set
forth below, the Court grants in part the motion to dismiss
and grants the motion to depose.
Patrick Weckesser, a cable installation technician, filed
this class and collective action on behalf of himself and all
others similarly situated against Defendant Knight
Enterprises S.E., LLC, alleging violations of the Fair Labor
Standards Act ("FLSA") and the South Carolina
Payment of Wages Act. (Dkt. No. 1.) The Court granted
conditional class certification on August 27, 2018. (Dkt. No.
36.) Multiple individuals have joined the case as opt-in
plaintiffs. (See Dkt. Nos. 5, 8, 14, 46 - 61.) Defendants now
seek to dismiss with prejudice Opt-In Plaintiff Martin
Davila, who has failed to appear for two depositions. (Dkt.
No. 84 at 1 - 2.) Davila was noticed for a deposition on May
17, 2019. (Dkt. Nos. 84-1; 84-2.) After failing to appear for
that deposition, Defendant noticed another deposition for
Davila on May 29, 2019. (Dkt. Nos. 84-3; 84-4.) Davila failed
to appear for that deposition as well. Defendant
represents that Plaintiffs do not oppose the motion.
as the discovery deadline has passed, the Parties jointly
seek leave to take depositions of two Opt-In Plaintiffs on
June 7, 2019, and June 11, 2019. (Dkt. No. 85.)
37 and 41 of the Federal Rules of Civil Procedure are part of
a court's "comprehensive arsenal of Federal Rules
and statutes to protect themselves from abuse."
LaFleur v. Dollar Tree Stores,
Inc., No. 2:12-CV-00363, 2014 WL 37662, at *3 (E.D. Va.
Jan. 3, 2014) citing Chambers v. NASCO, Inc., 501
U.S. 32, 62 (1991). Under Rule 37, a court must determine:
(1) whether the non-complying party acted in bad faith, (2)
the amount of prejudice that noncompliance caused the
adversary, (3) the need for deterrence of the particular sort
of non-compliance, and (4) whether less drastic sanctions
would have been effective.
Anderson v. Found, for Advancement, Educ. &
Employment of Am. Indians, 155 F.3d 500, 504 (4th Cir.
1998). A court must apply a similar four-part test when
determining whether to dismiss under Rule 41:
(1) the plaintiffs degree of personal responsibility; (2) the
amount of prejudice caused the defendant; (3) the presence of
a drawn out history of deliberately proceeding in a dilatory
fashion; and (4) the effectiveness of sanctions less drastic
Hillig v. Comm 'r, 916 F.2d 171, 174 (4th Cir.
1990). The standard for Rules 37 and 41 is "virtually
the same." Carter v. Univ. of W. Virginia Sys., Bd.
of Trustees, 23 F.3d 400 (4th Cir. 1994).
meets the standard for sanctions and dismissal under Rules 37
and 41. First, by failing to appear for two depositions, and
considering Defendant's representation that Plaintiffs
counsel could not secure Davila's attendance, the failure
to appear is his responsibility and evidences bad faith.
Second, Defendant has been prejudiced by Davila's failure
to appear based on time spent preparing and Defendant's
inability to secure Davila's testimony in discovery.
Third, given the repeated failure to appear there is a
history of dilatory action and the Court must deter future
non-compliance. Finally, no less drastic sanction will be
effective as the trial is approximately two months away and
discovery has closed. Therefore, Plaintiff Davila should be
dismissed from the case. However, while Defendant seeks
dismissal with prejudice, the Court finds this too drastic a
sanction. Under the FLSA, provided a party complies with
applicable limitations periods, "[p]otential plaintiffs
who do not opt in are not bound by the judgment and may bring
a subsequent private action." Ruffin v. Entm't
of the E. Panhandle, No. 3:11-CV-19, 2012 WL 761659, at
*3 (N.D. W.Va. Mar. 7, 2012). Davila, by failing to comply
with the discovery process, will be in the same position as
any potential plaintiffs who failed to opt-in.
the Court grants leave to take the depositions of Brian
Rowland and William Mai one on June 7 and June 11, 2019. This