Timothy REPASS and William McCandless, individually and on behalf of all others similarly situated, Plaintiffs, v. TNT CRANE AND RIGGING, INC., Defendant MO:18-CV-00107-DC-RCG United States District Court, W.D. Texas, Midland-Odessa Division Signed August 20, 2021 Counsel Aaron Michael Johnson, Fair Labor Law, Austin, TX, Daniel Anthony Verrett, Edmond S. Moreland, Jr., Moreland Verrett, P.C., Wimberley, TX, for Plaintiffs. G. Mark Jodon, Kevin S. Little, Jonathan Andrew Sprague, Littler Mendelson, P.C., Houston, TX, for Defendant. Griffin, Ronald C., United States Magistrate Judge REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE *1 BEFORE THE COURT are Defendant TNT Crane and Rigging, Inc.’s (“Defendant”) Motion to Dismiss Opt-in Plaintiffs Billy Spruill (“Spruill”) and Gilbert Villa, Jr. (“Villa”) (Doc. 139) and Plaintiffs’ Response in Opposition (Doc. 145). This case is before the undersigned through an Order pursuant to 28 U.S.C. § 636 and Appendix C of the Local Court Rules for the Assignment of Duties to United States Magistrate Judges. (Doc. 102). After due consideration, the undersigned RECOMMENDS that Defendant's Motion to Dismiss Opt-in Plaintiffs Billy Joe Spruill and Gilbert Villa, Jr. be GRANTED. (Doc. 139). I. BACKGROUND On June 18, 2018, Plaintiffs filed this case as a collective action alleging violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201, et seq. (Doc. 1). Plaintiffs filed their First Amended Complaint on July 11, 2018, adding claims under the New Mexico Minimum Wage Act, NMSA § 50–4–19, et. seq. (Doc. 12). Defendant is “one of the largest crane [and rigging companies] in the world” and provides lifting services throughout North America. Id. at 5. Plaintiffs worked for Defendant as crane operators. Id. According to Plaintiffs, Defendant operates its business out of yards in Midland, San Antonio, and Houston, Texas. (Doc. 20 at 2). Plaintiffs claim Defendant failed to properly compensate its employees for overtime, including for “drive time” or “off-the-clock” preparatory and concluding time. Id. at 9. On February 6, 2019, the District Court adopted the undersigned's Report and Recommendation, which granted Plaintiffs’ Motion for Conditional Certification and conditionally certified the following class: ALL CURRENT AND FORMER CRANE OPERATORS OF DEFENDANT WHO WORKED OUT OF DEFENDANT'S MIDLAND, SAN ANTONIO, OR HOUSTON YARDS AT ANY TIME IN THE LAST THREE YEARS. (Doc. 29 at 2). Villa filed his consent to join this lawsuit on March 25, 2019 (Doc. 35-15) and Spruill joined on April 16, 2019 (Doc. 43-2). On July 2, 2020, Defendant listed Spruill and Villa on a list of the first 12 individuals it sought to depose. (Doc. 128 at 3) (citing 128-2 at 2). On July 13, 2021, Defendant noticed Villa's deposition for July 16, 2020, a date agreed upon by the parties. Id. (citing 128-3). However, Villa did not appear for his scheduled deposition and Defendant took a certificate of non-appearance. Id. (citing 128-4). Defendant then alleges that on both July 22 and 27, 2020 it “sought [via email] additional dates for Villa's deposition, but no new dates were provided.” Id. (citing 128-5 at 3–4). Additionally, Defendant alleges that in both the July 22 and 27, 2020 emails it sought dates for Spruill's deposition. Id. (citing 128-5 at 3–4). Ultimately, on July 31, 2020 Plaintiffs told Defendant “as of now, we will not be providing dates as you have requested.” (Doc. 128 at 3) (citing 128-5 at 2). This case entered a bankruptcy stay beginning in August 2020. (Docs. 94, 95). The stay was lifted, and the case reopened on December 3, 2020. (Doc. 99). Thereafter, Plaintiffs filed a Motion for Protective Order and Defendant filed a Motion to Compel Depositions of Plaintiffs. (Docs. 101, 117). *2 On June 11, 2021 the Court granted in part Defendant's Motion to Compel Depositions and granted in part Plaintiffs’ Motion for Protective Order, entering an Order that defined the scope of representative discovery going forward in the case. (Doc. 125). The relevant portion of the Court's Order stated: “Defendant will be allowed to conduct a total of fifteen depositions of Plaintiffs. However, the six depositions already completed count towards that total—giving Defendant nine remaining depositions. Defendant will be allowed to select the nine Plaintiffs it wishes to depose, from any yard.” Id. at 3 (emphasis omitted). Subsequently, Defendant reached out to Plaintiffs’ counsel seeking dates to depose Spruill and Villa, however Plaintiffs’ counsel was unable to provide prospective dates as he “been trying to reach Spruill and Villa, but have so far been unable to do so.” (Doc. 128 at 4) (citing 128-6 at 2). In response, on July 8, 2021, Defendant filed a Motion to Compel Depositions seeking the Court to compel Spruill and Villa to appear for depositions. (Doc. 128). On July 20, 2021, the Court granted Defendant's Motion to Compel and ordered Spruill and Villa to appear for depositions within 5 days of the Court's order. (Doc. 132 at 4). Included in the Court's Order was the conspicuous language that “Plaintiffs Villa and Spruill are warned that dismissal is a possible and likely sanction for failing to appear for these depositions. Plaintiff's counsel is ORDERED to provide Plaintiff Villa and Plaintiff Spruill respectively, a copy of this Order.” Id. at 4. Despite the Court's most recent Order, Defendant advises in its Motion to Dismiss that “[Spruill and Villa] have not, however, sat for deposition, despite the Order. The parties have conferred in a good-faith attempt to resolve this matter, but no agreement is possible given that counsel for the plaintiffs is unable to reach Spruill and Villa.” (Doc. 139 at 2). As a result, Defendant now brings the instant Motion to Dismiss Opt-in Plaintiffs Spruill and Villa. (Doc. 139). On August 12, 2021, Plaintiffs filed a Response in Opposition, wherein Plaintiffs advise the Court that “Plaintiffs oppose the motion to the extent it seeks dismissal with prejudice.” (Doc. 145) (emphasis omitted). Consequently, the instant matter is ripe for disposition. II. LEGAL STANDARD Federal Rule of Civil Procedure 41(b) authorizes district courts to dismiss an action on motion by a defendant where a plaintiff fails to prosecute or comply with a court order. Additionally, Rule 37 “grants federal courts broad discretion in deciding whether to dismiss the action of a plaintiff who fails to comply with disclosure and discovery requirements.” Passmore v. Baylor Health Care Sys., 823 F.3d 292, 296 (5th Cir. 2016). However, “[b]ecause the law favors the resolution of legal claims on the merits, and because dismissal is a severe sanction that implicates due process,” the Fifth Circuit deems dismissal with prejudice a “remedy of last resort.” F.D.I.C. v. Conner, 20 F.3d 1376, 1380 (5th Cir. 1994) (internal citations and quotations omitted). “Rule 37 dismissal, however ‘must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.’ ” Moore v. CITGO Refin. & Chems., Co., L.P., 735 F.3d 309, 315 (5th Cir. 2013) (quoting Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976) (per curiam)). In order “for a court to justify dismissal as a sanction for violating a discovery order, the following factors must be clearly present in the record:” *3 (1) the refusal to comply results from willfulness or bad faith and is accompanied by a clear record of delay or contumacious conduct; (2) the violation must be attributable to the client instead of the attorney; (3) the violating party's misconduct must substantially prejudice the opposing party's preparation for trial; and (4) a less drastic sanction would [not] substantially achieve the desired deterrent effect. Cruz v. Maverick County, 957 F.3d 563, 569 (5th Cir. 2020) (quoting Conner, 20 F.3d at 1380–81). III. DISCUSSION The undersigned finds that the above-referenced factors are met in the present case. As discussed in detail in Section I, the record reflects that Spruill and Villa each failed to comply with the undersigned's order (Doc. 132), as well as numerous requests from their own attorneys. (See Docs. 128-5 at 3–4; 129-1 at 1) (Plaintiffs’ counsel representing that they cannot contact Spruill and/or Villa). Noted above, Plaintiffs do not dispute the factual allegations in Defendant's Motion to Dismiss and only oppose the instant Motion to the extent that Defendant seeks to dismiss Spruill and Villa with prejudice. (Doc. 145 at 1). Plaintiffs argue that Spruill and Villa's conduct does not result from willfulness or bad faith as required to justify dismissing their claims with prejudice. Id. However, the undersigned disagrees—Spruill and Villa's conduct clearly rises to the level of willfulness and constitutes contumacious conduct that has delayed the Parties’ ability to engage in discovery. Spruill and Villa were each aware of the Court's ruling and still failed to conduct themselves in accordance with it. Plaintiffs maintain that the reason for Spruill and Villa's non-compliance is unknown and could be for reasons beyond their control that do not constitute willfulness. (Doc. 145 at 1). Nevertheless, the Fifth Circuit has previously affirmed a district court's inference of willfulness from conduct because “Plaintiffs were aware of the Court's rulings, and nevertheless failed to conduct themselves in accordance with them. This failure evidences a blatant disregard for the judicial process, and constitutes willful and contumacious conduct.” Moore, 735 F.3d at 316; see also Robinson v. RWLS, LLC, 5:16-CV-00201-OLG-RBF, 2018 WL 11346754, at *2 (W.D. Tex. Dec. 6, 2018) (finding that plaintiffs’ behavior “represents contumacious conduct” and delayed discovery because plaintiffs failed to comply with two court orders and multiple requests from their attorneys); (Doc. 132 at 4). Further, evidence shows that Plaintiffs’ counsel has been unable to reach Spruill and Villa since July of 2020. (See Doc. 128 at 3). At this point, the undersigned also finds that Spruill and Villa's violations are attributable to only themselves, as their attorneys have tried to communicate with them multiple times and the Court specifically warned that “dismissal is a possible and likely sanction for failing to appear for this deposition.” (See Doc. 132 at 4). Additionally, the Court insured that Spruill and Villa each received a copy of the Court's discovery Order by ordering Plaintiffs’ counsel to provide each of them with one. Id. Further, the undersigned finds that Spruill and Villa's refusal to appear for a deposition substantially prejudices Defendant's ability to mount a defense and prepare for trial. Specifically, Defendant argues that prejudice exists because, “[Defendant] believes Spruill and Villa possess information favorable to the defense of this action” but Defendant cannot obtain their testimony under oath. (Doc. 139 at 4). *4 Finally, the undersigned finds that lesser sanctions would not be effective, as Spruill and Villa: (1) never provided dates to be deposed; (2) were warned that dismissal would likely occur if they did not comply with the Court's discovery order; and (3) have not responded to their own attorney's communications. See Moore, 735 F.3d at 317 (“[T]his circuit has rejected the view that a court is ‘required to attempt to coax [parties] into compliance with its order by imposing incrementally increasing sanctions.’ ”) (quoting United States v. $49,000 Currency, 330 F.3d 371, 379 (5th Cir. 2003)). Further, Villa failed to appear for a properly-noticed deposition. Accordingly, the undersigned concludes that dismissal of Spruill and Villa's claims with prejudice is appropriate under both Rule 41 and Rule 37. IV. CONCLUSION Based on the circumstances present in this case, the undersigned RECOMMENDS that Defendant's Motion to Dismiss Opt-in Plaintiffs Billy Spruill and Gilbert Villa, Jr. be GRANTED, and that Opt-In Plaintiffs Billy Spruill and Gilbert Villa, Jr. be DISMISSED from the current suit WITH PREJUDICE. (Doc. 139). INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT In the event that a party has not been served by the Clerk with this Report and Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is ORDERED to mail such party a copy of this Report and Recommendation by certified mail. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to this report must serve and file written objections within fourteen (14) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made; the District Judge need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court and serve the objections on all other parties. A party's failure to file such objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Judge. Additionally, a party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Judge. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428–29 (5th Cir. 1996).