Opinion
NO. CV-08-0075-LRS.
March 13, 2009
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DISMISSAL
BEFORE THE COURT is Defendants' Motion For Summary Judgment Dismissal, Ct. Rec. 35, filed on January 20, 2009 and noted, without oral argument, for March 13, 2009.
Plaintiffs have brought this lawsuit alleging that Defendants failed to pay eight (8) hours of overtime compensation after the Plaintiffs had worked 24 hours for eight (8) consecutive days. This conduct, Plaintiffs complain, violates 29 U.S.C. § 201 et. seq., Fair Labor Standards Act ("FLSA").
A. Dismissal of Defendant Aacres Allvest Corporation
Defendants argue that summary judgment dismissal as to Defendant Aacres Allvest corporation is appropriate based on lack of existence of such corporate entity. Ct. Rec. 35 at 2-3. Defendants state that Plaintiffs have sued a non-existent entity Defendant Aacres Allvest corporation and this named Defendant was not Plaintiffs' employer. Defendants submit W-2 forms in support of the motion for summary judgment dismissal. Ct. Recs. 49, 52.
The Declaration of Rex A. Garrett provides that Plaintiffs were employed by Aacres/Allvest Limited Liability Company up until June 28, 2007. Ct. Rec. 37.
Defendants state that Plaintiffs argument relating to the survival statute for claims against a dissolved corporation is irrelevant as the corporation never existed and therefore could not be dissolved.
Based on the evidence before the court, it appears that the limited liability corporation employed the Plaintiffs. It is therefore appropriate that Defendant Aacres Allvest corporation be dismissed as requested by Defendants.
B. Dismissal of Plaintiff Bouchard Based on Failure to Participate in Discovery
Defendants also argue that the claims of Defendant Michael Bouchard should be dismissed based on his failure to participate in discovery. Defendants state that on November 19, 2008, interrogatories and requests for production were directed to Plaintiff Bouchard and to date, he has not responded to those discovery requests. Further, when scheduling the deposition of Plaintiff Bouchard, opposing counsel's office advised that Plaintiff was out of the country. Finally, Defendants point out that Plaintiff Bouchard has not opposed this motion for summary judgment dismissal.
The trial court has broad discretion in imposing sanctions against party who fails to comply with a discovery order, though that discretion is limited where ultimate sanctions of dismissal or entry of default judgment are concerned. Under Fed.R.Civ.P. 37(b)(2), the district court may dismiss an action as a sanction for failure to "obey an order to provide or permit discovery." Dismissal is, however, a harsh penalty which should not be imposed except in extreme circumstances. Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983).
The foregoing notwithstanding, Plaintiff Bouchard's complete failure or unavailability to respond to discovery requests has continued for approximately 4 months on a matter which is scheduled for trial less than 60 days from the current date. Such a state of affairs is inherently prejudicial to the Defendants. The Court concludes that his claims should therefore be dismissed without prejudice.
Accordingly, IT IS ORDERED that:
1. Defendants' Motion For Summary Judgment Dismissal, Ct. Rec. 35, is GRANTED in part and DENIED in part. Defendant AACRES ALLVEST corporation is DISMISSED without prejudice.
2. Plaintiff Michael Bouchard and the claims he has asserted are dismissed without prejudice.
IT IS SO ORDERED. The District Court Executive is directed to enter this Order and provide copies to counsel.