ORDER GRANTING DEFENDANT'S MOTION TO COMPEL DEPOSITION OF OPT-IN PLAINTIFF JAMES JOY RODGERS MO:18-CV-00107-DC-RCG United States District Court, W.D. Texas, Midland-Odessa Division Signed August 13, 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 ORDER GRANTING DEFENDANT'S MOTION TO COMPEL DEPOSITION OF OPT-IN PLAINTIFF JAMES JOY RODGERS *1 BEFORE THE COURT is Defendant TNT Crane and Rigging, Inc.’s Motion to Compel Deposition of Opt-in Plaintiff James Joy Rodgers (“Rodgers”) (“Motion to Compel Deposition”). (Doc. 137). 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 Court GRANTS Defendant's Motion to Compel Deposition. (Doc. 137). I. BACKGROUND On June 18, 2018, 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 TNT Crane and Rigging, Inc. (“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” or “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). The Court notes it has already granted two motions to compel depositions filed by Defendant as to three opt-in plaintiffs. (See Docs. 132, 135). Now, Defendant seeks to compel the deposition of Rodgers. Defendant avers that “on July 23, 2021, Plaintiff's 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, On July 27, 2021 Defendant filed the instant Motion to Compel Deposition. (Doc. 137). Plaintiffs failed to file a Response; thus, the Court may grant the instant motion as unopposed. See Local Rule CV-7(d)(2) (“If there is no response filed within the time period prescribed by this rule, the court may grant the motion as unopposed.”). Consequently, this matter is ripe for disposition. II. DISCUSSION *2 As mentioned above, the Court's previous Order stated that Defendant could “select the nine Plaintiffs it wishes to depose, from any yard.” (Doc. 125 at 3) (emphasis omitted). Additionally, Defendant makes it clear in its Motion that it “is not seeking dismissal based on the current record; rather, [Defendant] is asking the Court to order Rodgers to appear for deposition with the accompanying warning that if he does not, his claim will be dismissed.” (Doc. 137 at 5). Thus, in accordance with its earlier ruling that Defendant would have the power to choose the remaining opt-in Plaintiffs it wants to depose, the Court GRANTS Defendant's Motion to Compel Deposition. (Doc. 137). III. CONCLUSION Based on the foregoing discussion, it is ORDERED that Defendant's Motion to Compel Deposition is GRANTED. (Doc. 137). It is therefore ORDERED that within 5 days of the date this Order is signed, Rodgers must appear for an oral deposition. The Court reiterates from its previous Order that if Rodgers fails to appear for his deposition, Defendant may depose another opt-in Plaintiff on or before 10 days after the date this Order is signed. 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. It is so ORDERED.