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 Filed September 17, 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 is Defendant TNT Crane and Rigging, Inc.'s (“Defendant”) Motion to Dismiss Opt-in Plaintiff James Joy Rodgers (“Rodgers”). (Doc. 156). 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 Plaintiff James Joy Rodgers be GRANTED. (Doc. 156). I. BACKGROUND On June 18, 2018, Plaintiffs Timothy W. Repass and William Scott McCandless (“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” and “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). Thereafter, Rodgers filed his consent to join this lawsuit on April 8, 2019. (Doc. 41). 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). After the Court's ruling, Defendant avers that it reached out to Plaintiffs' counsel on July 16, 2021 to inquire about a deposition date for Rodgers, but “on July 23, 2021, Plaintiffs' counsel informed [Defendant]'s counsel that they had been unable to reach Rodgers and indicated [Defendant] would need to choose another opt-in plaintiff [to depose].” (Doc. 137 at 4) (citing Doc. 137-6 at 2). In response, Defendant filed a Motion to Compel Deposition on July 27, 2021 seeking the Court to compel Rodgers to appear for a deposition. Id. On August 13, 2021, the Court granted Defendant's Motion to Compel and ordered Rodgers to appear for a deposition within 5 days of the Court's order. (Doc. 148 at 3). Included in the Court's Order was the conspicuous language that “Plaintiff Rodgers is warned that dismissal is a possible and likely sanction for failing to appear for this deposition. Plaintiffs' counsel is ORDERED to provide Plaintiff Rodgers a copy of this Order.” Id. at 3. *2 Despite the Court's most recent Order compelling Rodgers to sit for a deposition, Defendant advises in its Motion to Dismiss that “Plaintiffs' counsel has not been able to reach Rodgers to schedule his deposition and, thus, he has not sat for deposition.” (Doc. 156 at 2). As a result, Defendant now brings its Motion to Dismiss Opt-in Plaintiff Rodgers. (Doc. 156). Plaintiffs did not file a Response to Defendant's Motion, and the responsive pleading deadline has passed. Per Local Rule CV-7, the Court may now grant Defendant's Motion as unopposed. See W.D. Tex. Civ. R. 7(d) (“A response to a discovery or case management motion shall be filed not later than 7 days after the filing of the motion. A response to other motions shall be filed not later than 14 days after the filing of the motion .... If there is no response filed within the time period prescribed by this rule, the court may grant the motion as unopposed.”). 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:” (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 previously in Section I, the record reflects that Rodgers failed to comply with the Court's Order (Doc. 148), as well as numerous requests from his own attorneys. (See Docs. 137 at 4 (citing Doc. 137-6); 156-1) (Plaintiffs' counsel representing that they cannot contact Rodgers despite trying to communicate with him). First, Rodgers's conduct clearly rises to the level of willfulness and constitutes contumacious conduct that has delayed the Parties' ability to engage in discovery. Rodgers was aware of the Court's ruling and still failed to conduct himself in accordance with it. Additionally, 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). *3 At this point, the undersigned also finds that Rodgers's violations are attributable to only himself, as his attorneys have tried to communicate with him multiple times and the Court specifically warned that “dismissal is a possible and likely sanction for failing to appear for this deposition.” (See Doc. 156 at 3). Additionally, the Court insured that Rodgers received a copy of the Court's discovery Order by ordering Plaintiffs' counsel to provide him with one. Id. Further, the undersigned finds that Rodgers'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 holds the “belief that Rodgers possesses information favorable to the defense of this action” but Defendant cannot obtain his testimony under oath because Rodgers has not sat for a deposition. Id. Finally, the undersigned finds that lesser sanctions would not be effective, as Rodgers: (1) never provided dates to be deposed; (2) was warned that dismissal would likely occur if he did not comply with the Court's discovery order; and (3) has not responded to his own attorneys' 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)). Accordingly, the undersigned concludes that dismissal of Rodgers's claim 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 James Joy Rodgers be GRANTED, and that Opt-In Plaintiff James Joy Rodgers be DISMISSED from the current suit WITH PREJUDICE. (Doc. 156). SIGNED this 17th day of September, 2021. 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).