NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

____________________________________

:

NICK AQUILINO and AHMED :

ELMAGHRABY, individually and on :

behalf of all persons similarly situated, :

:

Plaintiffs, :

:

V. :

:

HOME DEPOT U.S.A., INC., ILLEANA L. :

CONNALLY, THE MAINTENANCE :

WAREHOUSE FUTURE BUILDER :

ADMINISTRATIVE COMMITTEE, and :

JOHN DOES 1-10, :

:

Defendants. :

____________________________________:

 

Civil Action No. 04-cv-4100 (PGS)

 

EDWARD NOVAK, individually and on :

behalf of all persons similarly situated, :

:

Plaintiffs, :

: OPINION 

V. :

:

HOME DEPOT U.S.A., INC., ILLEANA L. :

CONNALLY, THE MAINTENANCE :

WAREHOUSE FUTURE BUILDER :

ADMINISTRATIVE COMMITTEE, and :

JOHN DOES 1-10, :

:

Defendants :

:

____________________________________:

SHERIDAN, U.S.D.J.

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Plaintiff alleges that Home Depot failed to pay overtime to an entire group of employees

known as Merchandising Assistant Store Managers (MASM) in violation of the Fair Labor Standards

Act. 29 U.S.C. § 201. The Act authorized collective actions under certain circumstances. That is,

each employee who wishes to participate must consent in writing to be part of the suit (opt-in), and

all the employees who opt-in must be “similarly situated”. 29 U.S.C. § 216. The statute reads in

pertinent part:

 Any employer who violates the provisions of section 206 or section

207 of this title shall be liable to the employee or employees affected

in the amount of their unpaid minimum wages, or their unpaid

overtime compensation, as the case may be, and in an additional

equal amount as liquidated damages. Any employer who violates the

provisions of section 215(a)(3) of this title shall be liable for such

legal or equitable relief as may be appropriate to effectuate the

purposes of section 215(a)(3) of this title, including without limitation

employment, reinstatement, promotion, and the payment of wages

lost and an additional equal amount as liquidated damages. An action

to recover the liability prescribed in either of the preceding sentences

may be maintained against any employer (including a public agency)

in any Federal or State court of competent jurisdiction by any one or

more employees for and in behalf of himself or themselves and other

employees similarly situated. No employee shall be a party plaintiff

to any such action unless he gives his consent in writing to become

such a party and such consent is filed in the court in which such

action is brought. The court in such action shall, in addition to any

judgment awarded to the plaintiff or plaintiffs, allow a reasonable

attorney's fee to be paid by the defendant, and costs of the

action.(emphasis added).

Home Depot alleges that the duties of a MASM vary from store to store; hence, the MASMs

are not similarly situated as the statute requires. Home Depot maintains that MASMs are managers

and are “exempt” from overtime provisions of FLSA. On the other hand, plaintiffs contend MASMs

are more akin to store clerks who stock shelves, sweep floors, etc., and as such are hourly employees

who must be paid overtime wages.

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On July 31, 2006, the Court authorized defendant to propound a short set of interrogatories

upon the initial group of 58 MASMs who had opted in. Many plaintiffs did not answer or failed to

certify their answers astrue in a timely fashion. As a result, on December 20, 2006, Magistrate Judge

Hedges ordered that these non-compliant individuals answer and/or certify, as the case may be,

within 60 days. Despite this Order, many of the plaintiffs still did not respond. On July 24, 2007, the

Court extended the time in which plaintiff could answer and/or certify for a brief period. Even after

this reprieve, many plaintiffs did not submit answers and/or certifications. 

At the present time, 32 of the 58 individuals upon whom interrogatories were propounded

have either failed to answer and/or certify their answers. More specifically, there are two groups.

a. There are 15 individuals who have failed to respond to interrogatories. The are:

George Bloss, Laura Bogdanowicz, Bettye Booker, JeffBuck, John Faldato, William

Harris, John Johnson, Keith Johnson, DaveKrawee, Dean Mainardi, Scott Neal, Lisa

Polistina, Kevin Price, Paul Schrag, and Joel Weinstein; and 

b. There are 17 individuals who have failed to certify their answers. They are: Richard

Aloi, Nick Aquilino, Wayne Collini, Thomas DeBella, George Fransway, Robert

Freeman, Vicki Gothro, Mark Parisen, Mark Pemberton, Luis Pietri, Keith Quint,

William Stank, Dennis Stein, Charles Wagner, Gary White, Marjorie Willis, and

Peter Wolczik. See Brady Cert. at para.30.

The Court may strike a pleading or dismiss a case where a party fails to obey discovery

orders. F.R. Civ. P. 37(b)(2)(c). The Court does not take such action lightly. The Court must consider

the six Poulis factors. Poulis v. State Farm & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984). The

six factors are (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary;

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(3) whether there has been a history of dilatoriness; (4) whether the conduct of the party or attorney

was willful or in bad faith; (5) the effectiveness of alternative sanctions; and (6) the meritoriousness

of the claim or defense. These factors are discussed below. 

Personal Responsibility 

Since there is neither evidence that the non-compliant plaintiffs did not receive the

interrogatories, nor any exceptional circumstances alleged, responsibility for failure to answer or

certify lies solely with those plaintiffs. At the July 10, 2007 case management conference, and at

other times, plaintiffs’ counsel represented discovery requests were sent to the individual Opt-Ins,

and he attempted to communicate with them regarding their responses without success. (See Brady

Cert., at ¶¶ 33 and 34).

Prejudice to Home Depot

Plaintiffs’ inactions have prejudiced Home Depot because its entire defense revolves around

whether the employees are “similarly situated”. An articulation of Plaintiffs’ job duties is critical

in determining that issue. See, e.g., Morisky v. Public Srvc. Electric & Gas Co., 111 F. Supp. 2d

493, 498 (D.N.J. 2000). 

History of Delay and Alternative Sanctions

There have been at least three court orders and nearly two years have elapsed without

response. Hence, it is unlikely that plaintiffs will respond in the future. As such, there are no other

viable solutions except for dismissal.

Merit of Plaintiff’s claim. 

The Court can not determine whether the claim is meritorious without having the benefit of

discovery including the answers to interrogatories. One of the Plaintiffs’ counsel’s chief arguments

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for denying this motion is that discovery is not necessary because class members are represented

through a lead plaintiff. That misses the point for two reasons. First, in order for this case to proceed

as a class, the Court must initially determine that plaintiffs are “similarly situated.” In order to do

so, some discovery regarding the actual job duties of MASMs is required. Secondly, unlike the

typical class action, a FLSA action requires that each employee consent in writing in order to be part

of the suit. Congress enacted that provision so each employee knew his or her rights were the subject

of a suit, and to prevent the collective action provision from being abused. Plaintiffs’ continual

failure to respond to non-burdensome discovery requests and court orders for nearly two years leads

to the conclusion that the non-responding plaintiffs may no longer wish to participate in the suit. In

that case, plaintiffs may have opted out of this action. The Court notes that dismissal without

prejudice does not foreclose each plaintiff from instituting a separate state court action alleging

FLSA, state, and common law claims. 

Here, the Poulis factors, especially the lapse of time and the ongoing non-compliance with

Court Orders, warrants dismissal without prejudice. 

s/Peter G. Sheridan 

PETER G. SHERIDAN, U.S.D.J. 

April 15, 2008

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