United States District Court, S.D. Ohio, Eastern Division
Vascura, Magistrate Judge
OPINION & ORDER
ALGENON L. MARBLEY,
matter is before the Court on Defendants' Motion to
Dismiss for Lack of Prosecution. (ECF No. 70). For the
following reasons, Defendants' Motion is
DeAngela Smith was a home health aide for Generations
Healthcare Services, LLC and Generations Too, LLC. She sued
Generations for violations of the Department of Labor's
2015 rule that “made overtime mandatory for home health
aides.” (ECF No. 43 at 2).
Smith filed this suit as a collective action under the Fair
Labor Standards Act (“FLSA”) and a class action
for violation of several similar state provisions on August
19, 2016. (ECF No. 1). This Court granted Plaintiff's
Motion to Conditionally Certify Class on July 11, 2017. (ECF
No. 46). Only two other plaintiffs, Jessica Climer and
Charles Hollins, opted in to the class.
later moved to Decertify the Class and Dismiss the Opt-In
Plaintiffs. (ECF No. 61). The opt-in plaintiffs had been
unresponsive to counsels' attempts to contact them
regarding their depositions. Plaintiffs Responded, noting
that they did not oppose decertification. (ECF No. 62). This
Court granted Defendants' Motion to Decertify but denied
the Motion to Dismiss the Opt-In Plaintiffs. (ECF No. 67). In
that Order, this Court noted that it was not dismissing the
opt-in plaintiffs because they had not had notice of the
consequences of failing to remain in contact with counsel and
proceed with discovery. The Court, however, explicitly noted
in that Order that the opt-in plaintiffs were now to be
considered on notice that if they did not participate in
litigation, they could be dismissed from the case.
this Court denied the Motion to Dismiss, counsel for the
opt-in plaintiffs filed a Motion to Withdraw as counsel. (ECF
No. 68). That Motion has been granted. (ECF No. 72). Relying
on the representations made in the Motion to Withdraw,
Defendants filed a new Motion to Dismiss for Lack of
Prosecution. (ECF No. 70). Counsel for the opt-in plaintiffs
responded only to say that he could not speak for the opt-in
plaintiffs, given his pending Motion to Withdraw. (ECF No.
William Cash's Declaration in support of his Motion to
Withdraw as counsel for the opt-in plaintiffs set forth in
detail his attempts to contact both Ms. Climer and Mr.
Hollins. (ECF No. 68-1). Mr. Cash represents that he and his
assistant repeatedly attempted to contact Ms. Climer via
phone and email to no avail. Mr. Cash sent Ms. Climer a
letter advising her that the Defendants needed to take her
deposition, that the Court had set deadlines for depositions,
and that if she did not respond her case could be dismissed.
(ECF No. 68-1 at 5). Ms. Climer did eventually call Mr. Cash
on January 23, 2018 and agreed to a deposition on February 5.
After that contact, however, Ms. Climer again stopped
answering calls or emails from counsel. Mr. Cash's
assistant sent Ms. Climer at least two emails that again
advised her that her claim could be dismissed if she did not
participate in discovery. Still, Ms. Climer did not respond.
Cash had a similar experience with Mr. Hollins. Mr. Cash and
his assistant reached out to Mr. Hollins numerous times.
After unsuccessfully attempting to reach Mr Hollins via
phone, Mr. Cash sent him a letter resembling the one he sent
Ms. Climer. The letter advised Mr. Hollins that the Court
could dismiss his claim if he did not respond. When Mr.
Hollins did not respond, and Defense counsel attempted to set
Mr. Hollins's deposition, Mr. Cash's assistant
emailed Mr. Hollins and again advised him of the necessity of
participating in discovery and that his claim could be
dismissed. That was on January 31, 2018. On February 1, 2018,
Mr. Cash's assistant was finally able to reach Mr.
Hollins by phone, and Mr. Hollins agreed to a deposition on
February 12. Mr. Cash's assistant attempted to set
another date after learning that Defense counsel had a
conflict that day, but Mr. Hollins never responded. Mr.
Cash's assistant sent Mr. Hollins another email on
February 14, with the same language from the email he sent on
January 31, 2018. Mr. Hollins never responded.
LAW & ANALYSIS
have moved to dismiss Plaintiffs Jessica Climer and Charles
Hollins from this suit. This Court may dismiss plaintiffs for
failure to prosecute their claims, failure to “comply
with the Federal Rules of Civil Procedure, or [failure to]
comply with a court order.” Oakes v. J.F. Bernard,
Inc., 2012 WL 3552651, at *1 (N.D. Ohio Aug. 1, 2012)
(citing Fed.R.Civ.P. 41(b); Consolidation Coal Co. v.
Gooding, 703 F.2d 230, 232 (6th Cir. 1983)). But
“dismissal of a claim for failure to prosecute is a
harsh sanction which the court should order only in extreme
situations showing a clear record of contumacious conduct by
the plaintiff.” Schafer v. City of
Defiance Police Dept., 529 F.3d 731, 736 (6th Cir.
2008). Whether to dismiss a claim is informed by four
(1) whether the party's failure is due to willfulness,
bad faith, or fault; (2) whether the adversary was prejudiced
by the dismissed party's conduct; (3) whether the
dismissed party was warned that failure to cooperate could
lead to dismissal; and (4) whether less drastic ...