Djurdjevich v. Flat Rate Movers, Ltd.

Background

Najdan Nikolic signed a form consenting to join this Fair Labor Standards Act (FLSA) action on February 15, 2019, and the form was filed on May 3, 2019. Defendants served written discovery requests on May 9, 2019. According to defendants, Nikolic did not respond or produce documents and did not appear for a deposition. Defendants also reported that plaintiffs’ counsel told them Nikolic was outside the country and had no set return date.

Nikolic’s counsel said that counsel had not heard from him since June 25, 2019, despite several attempts to contact him. Counsel did not agree to end Nikolic’s claims but said counsel would not oppose a motion to dismiss them for failure to prosecute.

Requests and legal standard

Defendants asked for a conference about Nikolic’s discovery failures or permission to seek dismissal under Federal Rule of Civil Procedure 41(b), which allows dismissal when a plaintiff fails to prosecute a case or follow court requirements. The court explained that an opt-in FLSA plaintiff must participate in party discovery. It also explained that dismissal as a sanction is a severe remedy generally reserved for extreme situations involving willfulness, bad faith, or fault, and that the court must consider lesser sanctions, the length of the noncompliance, and whether the plaintiff was warned about the consequences.

Ruling

The court found that Nikolic had not complied with his discovery obligations and that his counsel had been unable to contact him. But Nikolic had not yet violated an express court order requiring him to respond to discovery or appear for a deposition, and he had not previously been expressly warned that continued noncompliance could lead to dismissal. The court therefore gave him additional time rather than dismissing his claims.

The order required Nikolic to respond to defendants’ written discovery requests and produce responsive, nonprivileged documents by June 10, 2020. Alternatively, he could file a request by that date to withdraw his consent to join the FLSA action. Unless he timely requested withdrawal, he was required to appear for a deposition by July 10, 2020, on a date agreed upon by counsel. Judge Barbara Moses warned that failure to comply could result in significant sanctions, including dismissal of all of Nikolic’s claims.

The court also ordered that, during the COVID-19 national emergency, depositions in the action generally be conducted by telephone, videoconference, or another remote method, while preserving the requirements that apply to the deposition officer and placing the witness under oath. Plaintiffs’ counsel had to serve the order on Nikolic at his last known mailing and email addresses and file proof of service. The scheduled May 11, 2020 telephonic conference was adjourned.