United States District Court, Middle District of Louisiana
RULING AND ORDER
BRIAN A. JACKSON,
Before the Court is a Motion to Dismiss (Doc. 21) filed by Defendant Seafood Source of Louisiana, Inc. ("Seafood Source"), seeking involuntary dismissal with prejudice of Plaintiff Erin Rodrigue's Fair Labor Standards Act action pursuant to Federal Rules of Civil Procedure ("Rules") 37(d) and 41(b). Rodrigue has responded to Seafood Source's motion with an unsworn statement. (Doc. 24.). Oral argument is not necessary. Jurisdiction is proper pursuant to 28 U.S.C. § 1331. For the reasons stated below, Seafood Source's Motion to Dismiss (Doc. 21) is DENIED.
A. Rodrigue's Allegations and Seafood Source's Answer
Rodrigue's Amended Complaint avers that he served as a full-time employee of Seafood Source for about 16 months as a manual laborer tasked with repair of Seafood Source's cold storage refrigerator. (Doc. 3 at ¶¶ 3-4). Rodrigue alleges he worked an average of seventy-five hours per week while employed by Seafood Source, but was paid for "40 hours of straight time" every week and was never paid overtime wages. (Id. at ¶¶ 4-5).
In its Answer, Seafood Source states that it employed Rodrigue as an outside salesman between March 2011 and August 2012. (Doc. 16 at p. 4). However, Seafood Source denies the substantive allegations in Rodrigue's Amended Complaint, and asserts a number of legal and equitable defenses. (Doc. 16).
B. Relevant Procedural History
This action was filed in Baton Rouge City Court on December 3, 2013, and removed to this Court by Seafood Source on December 20, 2013. (Docs. 1, 1-1). On January 21, 2014, Rodrigue filed the Amended Complaint that the Court reviews here. (Doc. 3). Seafood Souice filed motions to dismiss for failure to state a claim challenging Rodrigue's original petition on December 31, 2013 (Doc. 2), and his Amended Complaint on February 4, 2014 (Doc. 6). The motions to dismiss were denied by this Court on September 3, 2014 (Doc. 14) and September 15, 2014 (Doc. 15), respectively. Seafood Source then filed its Answer on September 29, 2014 (Doc. 16).
The Court originally set a fact discovery deadline of November 14, 2014. (Doc. 13). However, on November 13, 2013, Seafood Source filed an unopposed motion requesting a brief extension of the discovery deadline for the limited purpose of deposing Rodrigue because of a death in defense counsel's family and scheduled, out-of-town funeral and visitation services. (Doc. 17). The motion was granted, and although the deadline for all other fact discovery remained November 14, 2014, the deadline to depose Rodrigue was extended to December 31, 2014. (Doc. 18).
On December 23, 2014, Seafood Source filed a second unopposed motion to extend the deadline to depose Rodrigue because Rodrigue failed to appear at his scheduled December 9, 2014 deposition. (Doc. 19 at ¶ 4). On December 24, 2014, the Magistrate Judge issued a second extension of the fact discovery deadline until January 6, 2015 for the limited purpose of deposing Rodrigue. (Doc. 20). Seafood Source avers that on January 5, 2015, the afternoon before Rodrigue's third scheduled deposition date, Rodrigue's counsel advised Seafood Source that Rodrigue was delayed in Indiana and, as per federal regulations regarding his transport load, would not be able to return in time for the scheduled deposition. (Doc. 21 at ¶ 12). Seafood Source filed this motion on January 16, 2015. (Doc. 21).
On January 27, 2015, Rodrigue's counsel filed a motion to withdraw (Doc. 22), which was granted by the Court on the same day (Doc. 23). Rodrigue then filed an unsworn statement on February 3, 2015 providing purported reasons that he did not attend his scheduled depositions. (Doc. 24). In his unsworn statement, Rodrigue maintains that he did not attend the deposition scheduled for December 9, 2014 because his attorney notified him of the scheduled meeting the evening before when he was in Indiana and "could not physically have attended." (Id.). Rodrigue further states that he failed to attend the deposition scheduled for January 6, 2015 because, although he was scheduled to be in Baton Rouge on the date of the deposition, "a case of food poisoning and extreme ice and snow weather conditions" prevented him from arriving from Indiana. (Id.). Rodrigue also alleges that his counsel failed to keep a scheduled conference call with him to prepare him for the January 6, 2015 deposition and that his subsequent "efforts to reach [counsel] were unsuccessful." (Id.) In his unsworn statement, Rodrigues cites "counsel's failure to keep [Rodrigue] informed of scheduling deadlines and status of the case" as reasons he "has elected to represent himself in this matter." (Id.)
II. Standard of Review
A. Federal Rule of Civil Procedure 37(d)
Rule 37(d) provides that when "a party . . . fails, after being served with proper notice, to appear for that person's deposition, " the Court may issue sanctions, including "any of the orders listed in Rule 37(h)(2)(A)(I)-(vi)." Fed.R.Civ.P. 37(d)(1)(A)(i), (d)(3). The sanction of dismissal pursuant to Rule 37 "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 ...