Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02485-MSK-PAC

Document 380-4

Filed 03/29/2006

Page 1 of 4

EXHIBIT C

Case 1:03-cv-02485-MSK-PAC

Document 380-4

Filed 03/29/2006

Page 2 of 4 4 Page 2 of

Not Reported in F.Supp.2d
Not Reported in F.Supp.2d, 2002 WL 47899 (D.Me.), 145 Lab.Cas. P 34,445

Page 1

(Cite as: Not Reported in F.Supp.2d)

H

so as of the date of this order. The defendant's

Briefs and Other Related Documents
United States District Court, D. Maine.

motion, fied January 3, 2002, seeks dismissal of all
these plaintiffs or, in the alternative, an order

Abdela TU, et aI., Plaintiffs
v.

barring these plaintiffs from testifying at trial and precluding them from pursuing claims that they
were required to visit the employer defendant's medical offce during unpaid lunch breaks. Motion
at 6.

BARBER FOODS, INC., Defendant No.OO-371-P-C.
Jan. 11,2002.

The plaintiffs fied an opposition to the motion in
which they agree to dismissal of eight of the sixteen

plaintiffs "who have explicitly and unequivocally
Wiliam C. Nugent, Attorney at Law, Portland, ME,
Timothy B. Flemig, Gordon, Silberman, Wiggins

indicated to Plaintiffs' counsel that they do not wish to participate furher in this case," specifically Mark

& Childs PC, Washington, DC, for Abdela Tum,
plaintiff. Graydon Stevens, Kelly, Remmel & Zimmerman,

W. Aitkenhead, Erlinda A. Carter, Wiliam Devine,
Angela Dumont, Diane C. Keraghan, Lee Lacroix,

Portland, ME, for Barber Foods Inc dba Barber
Foods, defendant.

Lisa Morgan and Tatyana Novikova. Plaintiffs' Memorandum in Partial Opposition to Defendant's

Motion for Sanctions ("Plaintiffs' Opposition")
(Docket No. 38) at 2-3. Those plaintiffs should
accordingly be dismissed.

RECOMMENDED DECISION ON DEFENDANT'S MOTION FOR SANCTIONS

COHEN, Magistrate J.

With respect to the remaining eight plaintiffs, the

*1 The defendant in this action brought under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.,
seeks dismissal of eighteen of the remaining 41

plaintiffs (i) contend that they should not be
dismissed because representative testimony should

be allowed in the trial of this collective action,
rendering unnecessary their individual testimony, and represent that they agree not to testify; (ii) agree to waive any claims regarding medical visits by

named plaintiffs, Barber Foods' Motion for
Sanctions, etc. ("Motion") (Docket No. 37), as a

sanction for their failure to comply with my order

dated December 6, 2001 that they respond to
interrogatories propounded by the defendant on
September 11, 2001 no later than December 21,

2001 or to show cause by that date why they should not be sanctioned for their failure to do so, Report of Final Pretral Conference and Order (Docket No. 32) at 2. In that order I advised these plaintiffs that the sanction of dismissal of all of their claims was possible if they failed to comply with my order. /d.

these eight plaintiffs; (iii) argue that requiring these plaintiffs to respond to the discovery would present only redundant and cumulative evidence while imposing substantial cost and burden on them; and
(iv) posit that the use of "voluminous" discovery

requests by the defendant may be a tactic to reduce the number of plaintiffs. Id. at 4-11. The defendant
quite properly points out in its response, Barber

Two of the plaintiffs involved subsequently served answers to the interrogatories. The remaining

sixteen plaintiffs failed to respond to the
interrogatories or to show cause in writing by

Foods' Reply Memorandum in Support of Motion for Sanctions (Docket No. 39) at 2-3, that the latter two arguments could and should have been raised within 30 days of service of the interrogatories and

are untimely when first presented almost four
months later. See, e.g., Pilcher v. Direct Equity

December 21, 2001 and have made no effort to do

Lending, 2000 WL 33170865 (D.Kan. Dec. 22,

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Case 1:03-cv-02485-MSK-PAC

Document 380-4

Filed 03/29/2006

Page 3 of 4 4 Page 3 of

Not Reported in F.Supp.2d
Not Reported in F.Supp.2d, 2002 WL 47899 (D.Me.), 145 Lab.Cas. P 34,445

Page 2

(Cite as: Not Reported in F.Supp.2d)
2000) at 2; Allen v. Interstate Brands Corp., 186
*

F.R.D. 512, 524 (S .D. Ind.1999). I note as well that

the interrogatories propounded are neither voluminous nor unduly burdensome under the
circumstances of this case. The plaintiffs' contention that the defendant "already has all the impeachment

When plaintiffs persist in failing to respond to interrogatories even after the court has ordered them to respond, it is "clear that their conduct ...
was deliberate rather than accidental" and their
conduct "is the tye ... for which the extreme
sanction of dismissal... is appropriate." Hutchins v.

evidence it could use" if these eight plaintiffs are barred from testifying, Plaintiffs' Opposition at 10,
is simply incorrect. The defendant would be entitled to demonstrate at trial that individual plaintiffs who

A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260 (8th Cir.1997). The plaintiffs involved here have
offered no explanation for their failure to comply

with the court's order. Accordingly, the court can
only conclude that the failure to comply was not a

do not testify have made claims that cannot be substantiated, in whole or in part. The use of
representative testimony would not bar the use of
such impeachment evidence.

result of inability but rather due to "wilfull
disregard of the cour's order." Booker v. Anderson,
83 F.R.D. 284, 290 (N.D.Miss.1979). Dismissal of

these plaintiffs is an appropriate sanction under the

*2 The fact that representative testimony may be permitted at trial in this case by the trial judge does

circumstances. Id.; Pierzynowski v. Police Dep't

not, standing alone, justify the imposition of a
sanction less severe than dismissal for these

City of Detroit, 941 F.Supp. 633, 646 (E.D.Mich.1996).

plaintiffs' failure to respond to interrogatories or to

For the foregoing reasons, I recommend that the
defendant's motion for sanctions be GRANTED. If
the cour adopts my recommendation, the following

plaintiffs cite no case law in support of this
necessary corollary to their extensive argument

comply with this court's discovery order. The

concerng the potential use of representative

plaintiffs wil be dismissed from this action: Mark Aitkenhead, Shaun Albair, Erlinda Carter, Sandra

testimony in cases presenting claims like theirs. Plaintiffs' Opposition at 3-6. Regardless of the type of evidence to be offered at trial, this court has the

Chadbourne, Cory Chase, Toan Dang, Wiliam Devine, Angela Dumont, Mohammed Habibzai,
Peter Hamilton, Diane Keraghan, Lee Lacroix,
Gordon Lemire, Lisa Morgan, Tatyana Novikova

power to dismiss the claims of those who fail to
comply with its order concerning discovery and to dismiss the claims of those who fail to respond to interrogatories, even in the absence of an order
compelling them to do so. Fed.R.Civ.P. 37(b)(2) & (d).

and Robert Ouellette.

NOTICE

A party may file objections to those specifed
portions of a magistrate judge's report or proposed
findings or recommended decisions entered
pursuant to 28 u.s.e. § 636(b)(1)(B) for which de

In National Hockey League v. Metropolitan Hockey

Club, Inc., 427 U.S. 639, 640-41, 643 (1976), the Supreme Court upheld a distrct cour's dismissal of

an action as a sanction for the failure of the
plaintiffs to answer interrogatories "when after

novo review by the district court is sought, together

being expressly directed to perform an act by a date certain ... they failed to perform and compounded

with a supporting memorandum, within ten (10) days after being served with a copy thereof A responsive memorandum shall be filed within ten
(IO) days after the filing of the objection.
*3 Failure to file a timely objection shall constitute

that noncompliance by waiting until five days
afterwards before they fied any motions. Moreover,
this action was taken in the face of warnings that their failure to provide certain information could

a waiver of the right to de novo review by the

result in the imposition of sanctions under
Fed.R.Civ.P. 37." That is the situation presented

district court and to appeal the district court's
order.
D.Me.,2002.

here.

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Case 1:03-cv-02485-MSK-PAC

Document 380-4

Filed 03/29/2006

Page 4 of 4 4 Page 4 of

Not Reported in F.Supp.2d
Not Reported in F.Supp.2d, 2002 WL 47899 (D.Me.), 145 Lab.Cas. P 34,445

Page 3

(Cite as: Not Reported in F.Supp.2d)
Tum v. Barber Foods, Inc.

Not Reported in F.Supp.2d, 2002 WL 47899
(D.Me.), 145 Lab.Cas. P 34,445

Briefs and Other Related Documents (Back to top)
. 2:00cv00371 (Docket) (Dec. 12,2000)

END OF DOCUMENT

(Ç 2006 Thomson/est. No Claim to Orig. U.S. Govt. Works.

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