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 Plaintiffs Jonathan Davy and Brian
Rowland (Dkt. No. 94). For the reasons set forth below, the
Court grants the motion to dismiss.
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 without prejudice Opt-In
Plaintiffs Jonathan Davy and Brian Rowland, who have failed
to appear for their depositions. (Dkt. No. 94 at 1 - 2.) Davy
was noticed for a deposition for Thursday, May 30, 2019.
(Dkt. No. 94-2). Defendant counsel represents that
Plaintiffs' counsel confirmed on May 29, 2019 that Davy
would appear as scheduled, however Davy failed to appear the
following day. Defendant represents that Plaintiffs'
counsel indicated that Davy had chosen to withdraw from the
lawsuit, but has yet to file a withdrawal form. As to
Rowland, he was noticed for a deposition on June 7, 2019
(Dkt. No. 94-4), and similarly failed to appear for the
have not filed a response to the motion, and Defendant
represents that Plaintiffs do not oppose the motion. (Dkt.
No. 94 at 1.)
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 standards for Rules 37 and 41 are "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, the failure to appear are the Opt-In
Plaintiffs' responsibility and evidence bad faith.
Second, Defendant has been prejudiced by Davy and
Rowland's failure to appear based on time spent preparing
and Defendant's inability to secure Davy and
Rowland's testimony in discovery. Third, given the
failure to appear after coordination between counsel, 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 five weeks away
and discovery has closed. Therefore, Davy and Rowland should
be dismissed from the case without prejudice.