BACKGROUND

This Fair Labor Standards Act case is a collective action with 246 opt-in plaintiffs. After the parties could not reach agreement with respect to individual discovery of those plaintiffs, this Court ordered that Defendant be allowed to propound “very limited written discovery on each opt-in plaintiff in the form of five interrogatories and five requests for production of documents.” Dkt. #219 at 2. Defendant served the discovery requests on January 13, 2020, and the parties agreed to a rolling schedule that began with responses due February 12, 2020 through June 5, 2020. On July 22, this Court held a Telephonic Discovery Hearing on Defendant's request that the non-responding opt-in plaintiffs be sanctioned. Dkt. #276. Defendant argued that the opt-in plaintiffs had been provided ample opportunity to complete and submit their discovery responses and are obligated to comply with the Scheduling Order and discovery rules. Defendant asked the Court to sanction those non-responding opt-in plaintiffs by dismissal of their claims under Rules 37(b)(2)(A) and 41(b).

Plaintiffs acknowledged that there are opt-in plaintiffs who had not fully responded to the discovery requests, stating that they had not been in contact with Plaintiffs’ counsel for months, despite counsel's repeated attempts to reach them. Counsel stated that they did not know whether any of these non-responding opt-in plaintiffs wish to participate in the litigation any further. Plaintiffs further argued that the non-responding opt-ins account for only 13% of the collective and should not be required to respond because opt-in plaintiffs in FLSA collective actions are not all required to put on evidence at trial, and because the discovery sought is not proportional to the needs of the case. This Court had already considered Plaintiffs’ arguments when it ordered that Defendant could propound limited written discovery on each opt-in plaintiff. Dkt. #218. Nevertheless, before recommending dismissal of the non-responding opt ins, the Court issued its Order to Show Cause, identifying 32 specific opt in plaintiffs that were required to either fully respond to Defendant's written discovery requests or show cause why the claims should not be dismissed. Dkt. #279.

RESPONSE TO ORDER TO SHOW CAUSE

*2 Of the 32 opt-in plaintiffs identified in the Order to Show Cause, 27 opt-ins failed to respond at all, while two communicated with counsel but did not complete discovery responses before the September 1, 2020 deadline set in the Order to Show Cause.[1] Nhelta Kayren communicated with counsel but had not, as of September 14, 2020, completed her discovery responses, and she asked for “additional time” to complete her discovery responses, but did not indicate how much additional time was needed. Dkt. #283. Another opt-in plaintiff, Angelica Navarro, provided her interrogatory responses after the September 1 deadline. Plaintiffs concede that the 27 nonresponsive opt ins should be dismissed, but argue the dismissal should be without prejudice because Defendant has not been prejudiced. Dkt. #283.

Ms. Kayren's request for additional time is GRANTED. Ms. Kayren must submit her responses no later than November 2, 2020. If she fails to do so, the Court will recommend that her claims be dismissed with prejudice for the reasons outlined below. The Court's recommendation here does not apply to Ms. Navarro or Ms. Kayren, such that the Court finds that there are 27 non-responsive opt-ins at this time.

LEGAL STANDARD FOR DISMISSAL WITH PREJUDICE

Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure permits a court to issue an order dismissing the action if a party “fails to obey an order to provide or permit discovery.” The Tenth Circuit has identified five factors that a court should ordinarily consider before choosing dismissal with prejudice as a sanction: “(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.” Banks v. Katzenmeyer, 680 F. App'x 721, 724 (10th Cir. 2017) (citing Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (internal quotation marks omitted). Under this framework, “dismissal is warranted when the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1144 (10th Cir. 2007) (internal quotation marks omitted). “These factors do not constitute a rigid test; rather, they represent criteria for the district court to consider prior to imposing dismissal as a sanction.” Ehrenhaus, 965 F.2d at 921.

Plaintiffs essentially re-hash their prior arguments that all opt-in plaintiffs should not be required to participate in discovery in an FLSA collective action, asserting that individualized evidence is not necessary at trial. The Court has heard these same arguments at least twice now, and has already determined that requiring minimal participation of each opt-in plaintiff is proportional to the needs of this case and therefore appropriate. The Court has not changed its mind. Having made that determination, the Court turns to the five-factors identified by the 10th Circuit.

With respect to the first factor, prejudice to Defendant, Defendant argues that it would be prejudiced by a dismissal without prejudice of the non-responsive opt-in plaintiffs because it would be subject to further litigation and more costs and fees, and that it cannot properly defend against those opt-in plaintiff's claims without discovery to explain the basis for the claims and damages sought. Dkt. #288 at 5. Defendant further argues that it has already responded in this action to individualized discovery for each of the non-responsive opt-ins, and that such “one sided” participation should not be allowed, especially in light of this Courts’ Order to Show Cause requiring their participation. Id. The Court agrees, and finds that this factor weighs in favor of dismissal.

*3 With respect to the second factor, degree of interference with the judicial process, the court also finds that this factor weighs in favor of dismissal. The issue of individualized discovery for opt-in Plaintiffs was first heard by this Court on December 11, 2019 at a Discovery Hearing (Dkt. #216), and then the Court issued the Scheduling Order on December 17, 2019 (Dkt. #218), in which if found that it was “appropriate and proportional to the needs of this case to allow Defendant to propound very limited written discovery on each opt-in plaintiff in the form of five interrogatories and five requests for production of documents.” After several months of rolling discovery deadlines agreed to by the parties, the issue of non-responsive opt-in plaintiffs was heard by the Court at a Telephonic Discovery Hearing on July 22, 2020, during which Plaintiff again raised the argument that employers in FLSA actions are not entitled to individualized discovery, and the written discovery responses from the non-responding opt-in plaintiffs, 33 at the time, was not proportional to the needs of the case. See Dkt. #276-1 at 6-7. Defendant argues that discovery had been delayed (until Plaintiffs conceded that the nonresponsive opt-ins should be dismissed) because Defendant did not know whether it could consider the non-responsive opt-ins as part of the pool for those who might be deposed. Thus, Plaintiff's persistence in arguing that the discovery is not proportional to the needs of the case, despite the Court's finding otherwise, has only served to prolong the entire discovery process and require the court to address the same issue for the third time now.

With respect to the remaining three factors (the culpability of the litigant; whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance, and the efficacy of lesser sanctions), the Court finds the facts relating to each of the factors are intertwined, and when considered all together weigh in favor of dismissal with prejudice. First, the Notice of Pendency of Lawsuit informed the opt-in plaintiffs that they may be required to participate in discovery. See Dkt. #155-1 (“While this lawsuit is proceeding, you may be required to respond under oath to written questions, have your deposition taken, produce documents, and/or testify in court at a trial or hearing in the United States Federal Courthouse in Denver, Colorado. This may or may not be likely depending on your circumstances.”). The non-responsive plaintiffs are culpable in failing to communicate with or respond to their counsel when they voluntarily opted into the lawsuit, and knew they may be required to participate in discovery. See Mingo v. Sprint Corp., No. 2:17-CV-2688-JAR-KGG, 2018 WL 6725382, at *2 (D. Kan. Dec. 21, 2018), amended, No. 2:17-CV-2688-JAR-KGG, 2019 WL 195029 (D. Kan. Jan. 15, 2019) (In FLSA action in which nonresponsive opt-ins were dismissed with prejudice, the court found that plaintiffs who offered “no explanation or justification for their failure to comply or respond to their own counsel,” were culpable.).

The written discovery requests were limited such that the burden on each individual plaintiff was limited, and no lesser sanction would be effective in light of the Order to Show Cause, which specifically warned that a party who did not comply could be dismissed. See, e.g. Goode v. Nuance Commc'ns, Inc., No. 17-CV-472-GKF-JFJ, 2019 WL 6771752, at *2 (N.D. Okla. Nov. 27, 2019), report and recommendation adopted, No. 17-CV-00472-GKF-JFJ, 2019 WL 9101976 (N.D. Okla. Dec. 12, 2019) (recommending dismissal with prejudice for plaintiffs failing to respond in FLSA case, noting “Courts have routinely imposed dismissal with prejudice as a sanction for similar discovery violations in FLSA collective actions.”).

Accordingly, the Court RECOMMENDS that the following Plaintiffs be dismissed with prejudice from this action with respect to their FLSA claims:

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148–53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colorado Dep't of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).

One opt-in, Ernest Jones, responded by providing timely responses while two, John Wickiser and Linsey Thibault, withdrew from the case. Dkt. #282.