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Rosenbohm v. Cellco Partnership

United States District Court, S.D. Ohio, Eastern Division

January 6, 2020


          Chelsey M. Vascura Magistrate Judge.



         This matter is before the Court on Defendant Cellco Partnership d/b/a Verizon Wireless's Motion to Dismiss and for an Adverse Inference Against Opt-In Plaintiffs Who Refused to Respond to Discovery Questionnaire or Provided Late or Incomplete Responses (ECF No. 76). For the reasons that follow, Defendant's Motion is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         This case arises under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”) and the Ohio Minimum Fair Wage Standards Act, Ohio Revised Code Chapter 4111.01, et seq. (the “Ohio Act”). Plaintiff worked for Defendant Cellco Partnership (d/b/a “Verizon”) as a “Solution Specialist” at three locations from August 2013 to January 2017, in Hawaii, Ohio, and West Virginia. Plaintiff alleges that Defendant engaged in a scheme not to pay Solution Specialists and similarly-situated employees for the work they performed at Verizon store locations. (Compl., ECF No. 1.) Specifically, Plaintiff alleges that Solution Specialists and similarly-situated employees were required to work off-the-clock at the end of shifts and to participate in lengthy unpaid online training courses. (Id. at ¶¶ 13-16.) He also alleges that Verizon failed to maintain accurate records of hours worked, including overtime work. (Id. at ¶ 17.)

         On September 17, 2018, the Court granted Plaintiff's Motion to Conditionally Certify an FLSA Collective Action and to Authorize Notice. (ECF No. 35.) Thereafter, Plaintiff served notice of the conditionally-certified FLSA collective action to all former and current Solution Specialists employed by Defendant nationwide during the three years prior to the Order granting conditional certification. At the close of the opt-in period, 3, 875 opt-in Plaintiffs had filed consent forms to join the FLSA collective action. (Proposed Scheduling Order at 3, ECF No. 59.)

         After the parties were unable to agree on the extent of representative discovery of the opt-in class, the Court ordered that Defendant is entitled to take discovery of a random sample of 94 opt-in Plaintiffs. (ECF Nos. 63, 69, 74.) This number was arrived at by selecting a 95% confidence interval and a 10% margin of error applicable to a population size of 3, 875. (See Required Sample Size table, ECF No. 64-1.) Discovery was to commence with a questionnaire served on the random sample, with responses due 30 days after service. (ECF Nos. 63, 69.) The Court stated in the May 16, 2019 Amended Scheduling Order that

Defendant is permitted to file a motion seeking all opt-ins who fail to respond to the questionnaire to be dismissed with prejudice, and Plaintiff will have an opportunity to respond to the motion. The Court will determine whether each opt-in should be dismissed after briefing. For each opt-in who fails to respond to the questionnaire, the parties will work together to randomly select an additional opt-in for opt-in discovery.

(Order 10, ECF No. 69.) In accordance with the Amended Scheduling Order, Plaintiffs' counsel served the questionnaire on 94 randomly-selected opt-in Plaintiffs on July 31, 2019. (Braun Decl. ¶ 2, ECF No. 76-2.) The questionnaire instructed the recipients to “read and answer each question truthfully and to the best of your ability and knowledge, ” and that “[f]ailure to do so may harm your claims.” (Questionnaire 1, ECF No. 76-6.) Not all members of the sample provided timely or complete responses, and Plaintiff's counsel served the questionnaire on an additional 58 randomly-selected opt-in Plaintiffs on September 27, 2019. (Id. ¶¶ 3-4.) Plaintiff's counsel served the questionnaire on an additional 24 randomly-selected opt-in Plaintiffs on October 17, 2019. (Id. ¶ 7.) In total, questionnaires were served on 177 randomly-selected opt-in Plaintiffs. (Id. ¶ 8.)

         Of these 177 randomly-selected opt-in plaintiffs, Defendant seeks dismissal with prejudice of 122. (Mot. 2, ECF No. 76-1; Reply 1 n.1, ECF No. 80.) This includes 84 Plaintiffs who failed to respond to the questionnaire at all, 8 Plaintiffs who responded by asking to withdraw their consent to join the collective action, 25 Plaintiffs who provided untimely responses, and 8 Plaintiffs who provided incomplete responses.[1] (Id.) Further, Defendant seeks an adverse inference against all 122 Plaintiffs who did not provide timely, complete responses. (Id.) Should the Court instead dismiss these opt-ins without prejudice, Defendants asks in the alternative that the Court order that the statute of limitations for the 122 opt-ins is not tolled for the period of time during which they were opt-in Plaintiffs in this lawsuit. (Id.) Finally, Defendant asks that, at minimum, the 122 opt-ins be precluded from later attempting to introduce evidence. (Id.)


         The Court's inherent authority to dismiss a plaintiff's action because of his or her failure to prosecute is expressly recognized in Rule 41(b), which authorizes involuntary dismissal for failure to prosecute or to comply with rules of procedure or court orders. See Fed. R. Civ. P. 41(b); Chambers v. Nasco, Inc., 501 U.S. 32, 49 (1991) (noting that “a federal district court has the inherent power to dismiss a case sua sponte for failure to prosecute” as recognized in Link v. Wabash R.R. Co., 370 U.S. 626, 629-32 (1962)). “This measure is available to the district court as a tool to effect management of its docket and avoidance of unnecessary burdens on the tax-supported courts and opposing parties.” Knoll v. AT & T, 176 F.3d 359, 63 (6th Cir. 1999).

         The Sixth Circuit directs the district courts to consider the following four factors in deciding whether to dismiss an action for failure to prosecute under Rule 41(b):

(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 ...

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