United States District Court, S.D. Ohio, Eastern Division
Algenon L. Marbley
OPINION AND ORDER
CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE
October 7, 2016, Melinda Johnson signed her consent to
participate as a plaintiff in this collective Fair Labor
Standards Act ("FLSA") action. Since that time,
Defendants have been unable to depose Ms. Johnson, despite
having made attempts and obtaining an order from this Court
in January 2017 directing that Ms. Johnson's deposition
be completed on or before February 16, 2017. (See
ECF No. 92). This matter is before the Court to consider
Defendants' Motion to Dismiss Melinda Johnson as a
Plaintiff. (ECF No. 108).
counsel, who represent Ms. Johnson pursuant to her written
consent when she opted to join the collective FLSA action,
make clear in their response to Defendants' motion that
they have had difficulty maintaining contact with Ms.
Johnson. Indeed, the record does not demonstrate definitively
that Ms. Johnson has been aware of Defendants' attempts
to depose her or of this Court's January 25, 2017 Order.
In any event, Defendants' most recent documented attempt
was on March 2, 2017, when they scheduled the depositions of
Ms. Johnson and another opt-in plaintiff. Plaintiffs'
counsel informed Defendants' counsel in advance of March
2 that they had not been able to make contact with Ms.
Johnson to ensure that she would attend the deposition.
Defendants' counsel went forward with the other
deposition on March 2 and then filed their motion to dismiss
Ms. Johnson as a plaintiff as a sanction for her failure to
appear. Defendants did not request alternative sanctions to
37(d)(1)(A)(i) of the Federal Rules of Civil Procedure
permits a court to impose sanctions for a party's failure
to appear at her properly noticed deposition. Rule
37(b)(2)(A) permits a court to impose sanctions when a party
"fails to obey an order or to provide or permit
discovery." Permissible sanctions include dismissal.
See Fed. R. Civ. P. 37(b)(2)(A)(v), 37(d)(3). When a
court determines that a party has failed to obey a discovery
order or to appear at her properly noticed deposition, four
considerations govern its decision whether dismissal is an
appropriate sanction. Harmon v. CSX Tramp., Inc.,
110 F.3d 364, 366-67 (6th Cir.), cert, denied, 522
U.S. 868 (1997). Those factors include (1) whether the party
against whom the sanction is sought has acted willfully, in
bad faith, or with fault; (2) whether the movant was
prejudiced; (3) whether the party against whom the sanction
is sought was warned that dismissal could follow a failure to
cooperate; (4) and whether less a drastic sanction is
considered. Kafele v. Javitch, Block, Eisen &
Rathbone, 232 F.R.D. 286, 289 (S.D. Ohio 2005).
"Dismissal is the sanction of last resort."
Beil v. Lakewood Eng'g and Mfg. Co., 15 F.3d
546, 552 (6th Cir. 1994).
the four factors set out above clearly favors dismissal in
this situation. Defendants have not demonstrated even the
possibility that Ms. Johnson acted willfully or in bad faith
in failing to attend the March 2 deposition. As the Court has
noted, the record related to these events does not
demonstrate definitively that Ms. Johnson was even aware that
the deposition had been scheduled or that this Court had
ordered that it go forward. Plaintiffs' counsel advised
Defendants' counsel that they had been unable to make
contact with Ms. Johnson in advance of the deposition. That
record does not support a finding of bad faith or fault on
Ms. Johnson's part.
argue that they were prejudiced by Ms. Johnson's failure,
but the Court is not persuaded. Defendants were certainly
inconvenienced by having to prepare for the deposition,
although they have not indicated the manner in which their
preparation would have differed had they known that they
would take only one deposition on Mach 2. In any event,
inconvenience is not per se prejudice. See,
e.g., Johnson v. Muskingum Cty. Sheriff's Dep
't, No. 2:13-cv-0025, 2013 WL 6504692, at *3 (S.D.
Ohio Dec. 11, 2013). The Court is persuaded that any minor
prejudice Defendants may have suffered is remediable and
insufficient to support a sanction of dismissal.
third and fourth factors weigh strongly against dismissal.
Ms. Johnson has had no contact with the Court in this case.
The Court has not warned her about possible sanctions for
failing to appear at her deposition or otherwise cooperate in
discovery. The record does not suggest that Plaintiffs'
counsel has communicated with Ms. Johnson about the
possibility of any sanction, let alone the sanction of
dismissal. Dismissal under these circumstances is
unwarranted. See Stough v. Mayville Cmty. Sch., 138
F.3d 612, 615 (6th Cir. 1998).
those reasons, Defendants' Motion to Dismiss Melinda
Johnson as a Plaintiff (ECF No. 108) is hereby
DENIED. The Court ADVISES
Ms. Johnson that it will entertain a second motion to dismiss
her as a plaintiff in this action in the event that she is
selected for representative discovery in this matter and
fails to cooperate. The Court DIRECTS
Plaintiffs' counsel to provide a copy of this Order to
Ms. Johnson and to file proof, in the form of an email reply
or certified mail return, that Ms. Johnson has received it.