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 Signed July 22, 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 KHALID KEMEHA *1 BEFORE THE COURT is Defendant TNT Crane and Rigging, Inc.’s Motion to Compel Deposition of Opt-in Plaintiff Khalid Kemeha (“Kemeha”) (“Motion to Compel Deposition”). (Doc. 131). 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. 130). 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, Kemeha filed his consent to join this lawsuit on April 18, 2019. (Doc. 44). 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). In response to the Court's June 11 Order, Defendant contacted Plaintiffs’ counsel on June 16, 2021 “seeking deposition dates for nine plaintiffs, included among them Kemeha.” (Doc. 131 at 3). The parties subsequently agreed to conduct Kemeha's deposition on the morning of July 16, 2021. Id. Kemeha's deposition was originally noticed for 9:00 a.m., however, at the request of Plaintiffs’ counsel the deposition was moved to 7:30 a.m. Id. at 3–4. However, on July 15, 2021, Plaintiffs’ counsel stated via email that they “ ‘have not been able to speak with [Kemeha] to convey the new time or confirm his availability’ and, thus, neither he nor they would appear for his deposition.” Id. at 4 (quoting 131-8 at 3). Defendant appeared for Kemeha's deposition and took a certificate of non-appearance. Id. (citing 131-9). In response, On July 19, 2021 Defendant filed the instant Motion to Compel Depositions. (Doc. 131). Plaintiffs filed their Response in Opposition on July 21, 2021. (Doc. 133). 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). The Court's Order did not require Defendant to show that the plaintiffs Defendant chooses to depose will testify to something unique as Plaintiffs appear to argue in their Response. (Doc. 133 at 1) (citing Doc. 129 at 2). 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 Kemeha to appear for deposition with the accompanying warning that if he does not, his claim will be dismissed.” (Doc. 131 at 5). The Court ordered that Defendant would have the power to choose the remaining opt-in Plaintiffs it wants to depose. Thus, in accordance with that ruling, the Court GRANTS Defendant's Motion to Compel Deposition. (Doc. 131). III. CONCLUSION Based on the foregoing discussion, it is ORDERED that Defendant's Motion to Compel Deposition is GRANTED. (Doc. 131). It is therefore ORDERED that within 5 days of the date this Order is signed, Kemeha must appear for an oral deposition. The Court reiterates from its previous Order that if Kemeha fails to appear for his deposition, Defendant may depose another opt-in Plaintiff on or before the later of: (1) 10 days after the date this Order is signed, or (2) August 2, 2021. Plaintiff Kemeha is warned that dismissal is a possible and likely sanction for failing to appear for this deposition. Plaintiffs’ counsel is ORDERED to provide Plaintiff Kemeha a copy of this Order. It is so ORDERED.