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Aguilar v. Management & Training Corp.

United States District Court, D. New Mexico

December 20, 2016

MARISELA AGUILAR, et al., Plaintiffs,


         THIS MATTER comes before the Court upon Defendant's Renewed Motion to Dismiss Plaintiffs Juan Coronel, Eric Enriquez, and Robert Gallegos, filed December 1, 2016 (Doc. 86). Having reviewed the parties' briefs and applicable law, the Court finds that Defendant's motion should be granted in that Plaintiff Coronel is dismissed with prejudice; however, Plaintiffs Enriquez and Gallegos are dismissed without prejudice.


         This is a collective/class action lawsuit filed by a group of over 20 current or former employees of Defendant (“MTC”) who claim they were not paid for some of their hours worked on assignment for MTC at the Otero County Prison Facility near Chaparral, New Mexico. The lawsuit asserts claims for unpaid wages and overtime, as well as other statutory damages and the recovery of attorneys' fees, under the Fair Labor Standards Act 29 U.S.C. §§ 201-219 (“FLSA”) and/or the New Mexico Minimum Wage Act, N.M.S.A. §§ 50-4-1 to 50-4-33 (“NMMWA”).

         This is the second motion filed by Defendant seeking dismissal of Plaintiffs Coronel, Enriquez and Gallegos (“Plaintiffs” for purposes of this Order). Defendant sought dismissal of these named Plaintiffs in its first motion (Doc. 58) for failing to respond to discovery, despite Defendant's efforts to correspond with opposing counsel in an effort to secure either the requested discovery or the dismissal of these non-responsive parties. Discovery responses were overdue by two months at the time Defendant's first motion was filed. In ruling on Defendant's first motion to dismiss, the Court considered these Plaintiffs' conduct under both Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992) and Fed.R.Civ.P. 37(d)(1)(A)(ii), and found that their refusal to comply with discovery was “willful and without any merit.” The Court afforded Plaintiffs Coronel, Enriquez and Gallegos another opportunity to rectify their failures to participate in discovery by giving them thirty days from the entry of that Order to answer the written discovery that was propounded to them in this case. The Court also “invite[d] Defendant to re-file this motion requesting dismissal of Plaintiffs Coronel, Enriquez and Gallegos from this lawsuit.” Doc. 71 at 4. The Order further stated that if Plaintiffs failed to comply with the Court's directives within those thirty days:

At that point, Plaintiffs' culpability will be clear to the Court, as well as the pointlessness of sanctions less severe than dismissal. These Plaintiffs are further put on notice that the Court is not inclined to follow the suggestion by Plaintiffs' counsel that any dismissal be without prejudice, and that any dismissal contemplated by the Court would most likely be with prejudice.

Doc. 71 at 4. In the instant motion, filed more than thirty days since the Court's Order, Defendant seeks the dismissal of Plaintiffs Coronel, Enriquez and Gallegos, this time for their failure to comply with the Court's Order requiring these individuals to respond to discovery requests.

         The Court has addressed two other motions filed by Defendant addressing failures to cooperate in discovery by several other named Plaintiffs. The Court allowed these other plaintiffs the opportunity to remedy their non-cooperation. See Doc. 85 (addressing failures of Plaintiffs Hayes, Ortiz, Pacheco and Barrios to appear for depositions); and Doc. 80 (addressing failures of Plaintiffs Jimenez, Rodarte, Mendoza and Gurrola to appear for depositions). In the Court's last Order addressing these other plaintiffs' general and willful failure to participate in the discovery process, the Court ordered Plaintiffs' counsel to distribute to all of the named Plaintiffs copies of the Court's previous Orders which was intended to serve as sufficient and final notice “to any Plaintiff who may contemplate shirking his or her responsibility as a named Plaintiff or class representative.” Doc. 85 at 6. In that Order, the Court made clear that any plaintiff who “either fails to participate in discovery or offers unsubstantiated and unconvincing excuses for his or her failure to appear at a deposition . . . will not be afforded a second chance to remedy the situation.” Id.


         Under Federal Rule of Civil Procedure 37(d)(1)(A)(ii), the Court may order sanctions if “a party, after being properly served with interrogatories . . . or a request for inspection . . . fails to serve its answers, objections, or written response.” Under subsection (d)(3), which cross-references Rule 37(b)(2)(A)(i)-(vi), the sanctions may include dismissing the case in whole or in part, or rendering default judgment. Under Rule 41(b), “[i]f a plaintiff fails to prosecute or comply with these rules . . . a defendant may move to dismiss the action or any claim against it.” Courts in the Tenth Circuit considering dismissal under either of these rules apply the factors in Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992) (affirming dismissal under Rule 41), which are the following:

(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 ...

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