The opinion of the court was delivered by: Geraldine Soat Brown United States Magistrate Judge
Magistrate Judge Geraldine Soat Brown
MEMORANDUM OPINION AND ORDER
Before the court are three motions concerning the scope and design of discovery in this collective action under the Fair Labor Standards Act. In their motions, defendants AppleIllinois, LLC, W. Curtis Smith, James Borke, Archie Iodice and Jerry Kreger (collectively, "AppleIllinois") seek the dismissal, first, of 14 opt-in plaintiffs, and then, an additional 12 opt-in plaintiffs.*fn1
AppleIllinois also seeks an order compelling the deposition of an additional opt-in plaintiff when she is released from military duty. (Defs.' Dismissal Mem. at 1 n. 1.) Plaintiffs seek a protective order barring AppleIllinois from "unilateral[ly] noticing of depositions intended solely to 'weed out' optin Plaintiffs from this litigation," and directing AppleIllinois to work collaboratively with plaintiffs in obtaining deposition testimony. (Pls.' Mot. at 6, 9.) For the reasons stated below, AppleIllinois' motions to dismiss are granted in part and denied in part, and plaintiffs' motion is granted in part and denied in part.
The history of this case is recounted in some detail because events occurring well before the current motions are relevant to their disposition.
In late 2006, plaintiffs filed this case alleging claims under the Illinois Minimum Wage Law, 820 Ill. Comp. Stat. 105/1 et seq., the Illinois Wage Payment and Collection Act, 820 Ill. Comp. Stat. 115/1 et seq., and the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.*fn2 Plaintiffs allege that they are or were employees of AppleIllinois at approximately 30 Applebee's restaurants in Illinois and that AppleIllinois has not paid them statutorily required overtime pay. (Third Am. Compl. ¶¶ 28-32.) In August 2007, the court approved the parties' agreed motion to send notice of the collective action to similarly situated persons pursuant to 29 U.S.C. § 216(b). [Dkt. 28.] Notice was sent to all hourly kitchen workers employed at Illinois Applebee's restaurants between August 2, 2004 and the notice date. (Agreed Mot. to Approve Notice, Ex. A.) [Dkt 26.] It informed the employees that if they had worked more than 40 hours in an individual workweek without receiving overtime wages they could opt in to the litigation to pursue unpaid wages. (Id. at 1-2) It also advised that the named plaintiffs, Juan Oropeza and Jorge Lopez, would be designated as agents for the opt-in class, empowered to make decisions on behalf of the opt-in plaintiffs. (Id. at 3.) It noted, however, that opt-in plaintiffs might "be required to respond to written questions, provide documents in [their] possession or control, participate in depositions, testify in court, or any combination of these things." (Id. at 2.) Most of the consent forms to opt in were filed in the fall of 2007, and there are currently more than 100 plaintiffs in the opt-in class. [E.g., dkt 29-39.]*fn3
The parties consented to the jurisdiction of the magistrate judge in January 2008. [Dkt 86.] At that time, the parties were exploring the possibility of settling this case as well as a parallel but separate case, Driver v. AppleIllinois LLC, et al., No. 06 C 6149 (N.D. Ill.), and later engaged a mediator to assist them.*fn4 At the parties' request, the previously set discovery deadlines were vacated so that the parties could focus on the possibility of settlement. [Dkt 93.] AppleIllinois provided certain documents to plaintiffs, but the parties delayed formal discovery while they focused on settlement efforts. The mediation in December 2008 was unsuccessful.*fn5 After almost a year spent focused on settlement negotiation, the parties resumed the litigation, and AppleIllinois replaced its counsel. Discovery began in full force.
In 2009, nearly three years into the litigation, AppleIllinois served a document request on all of the opt-in plaintiffs, and deposition notices on 20 of them. (Pls.' Mot. at 2; Pls.' Mot. Prot. Order from Doc. Reqs., Ex. A [dkt 189].) Plaintiffs moved for a protective order, asking that the parties be ordered to confer and mutually develop a representative discovery plan. (Pls.' Mot. Prot. Order from Doc. Reqs. at 9.) Plaintiffs argued that it would be overly burdensome to require responses from all of the opt-in plaintiffs as opposed to a representative sampling of them since this is a collective action. (Id. at 5-7.) AppleIllinois opposed the motion, arguing that it needed discovery from all of the opt-in plaintiffs and noting that numerous other courts have allowed such individualized discovery in FLSA collective actions. (Def.'s Resp. to Pls.' Mot. Prot. Order from Doc. Reqs.) [Dkt 191.]
After a hearing on plaintiffs' motion, the court ordered that, as a starting point, AppleIllinois' document request be answered by only the 20 opt-in plaintiffs whose depositions had already been noticed by AppleIllinois. (Order, Sept. 16, 2009.) [Dkt 192.] No ruling was made expressly limiting discovery to those opt-in plaintiffs; rather, responses by the other opt-in plaintiffs were stayed. (Id.)
By a status conference on November 5, 2009, however, only four opt-in plaintiffs had appeared for their depositions. (Defs.' Dismissal Mem. at 3 n. 4.) One of the noticed 20 had advised plaintiffs' counsel that she intended to opt-out of the litigation, and none of the others were scheduled to be deposed. AppleIllinois orally moved that the remaining 15 depositions be compelled. Plaintiffs opposed that, saying that they had been unable to locate some of the opt-in plaintiffs due to the passage of time. AppleIllinois' motion was granted. The 15 opt-in plaintiffs whose depositions were previously noticed were ordered to confirm a date for their depositions, which were to take place by January 18, 2010. (Order, Nov. 5, 2009.) [Dkt 199.]
When none of those 15 depositions took place, AppleIllinois brought the present motion to dismiss 14 of the opt-in plaintiffs who had failed to appear. (Defs.' Dismissal Mem. at 1 n. 1, 6.) AppleIllinois invokes both Fed. R. Civ. P. 37 and 41, arguing that those opt-in plaintiffs who failed to respond to the discovery requests and failed to appear for their depositions should be dismissed from the case with prejudice. (Id. at 6-7.)*fn6 Because the fifteenth missing deponent, Brooke Engberg, was apparently unavailable due to her military service, AppleIllinois does not seek to dismiss her claim but rather requests a deadline after her active duty by which her deposition would proceed. (Id. at 1 n. 1.) Plaintiffs oppose the dismissal motion, arguing that discovery should proceed in a collective action on a representative basis, and that because AppleIllinois has refused to work with plaintiffs in selecting which plaintiffs to depose, dismissal is too harsh a remedy for the opt-in plaintiffs who failed to appear.
AppleIllinois then issued deposition notices for an additional 14 opt-in plaintiffs. The parties encountered similar difficulties in finding those plaintiffs and scheduling those depositions. Deadlines were set for the depositions to be scheduled and take place. (Order, Feb. 4, 2010.) [Dkt 217.] By the time the deadlines had passed, however, only two more opt-in plaintiffs had been deposed. (Defs.' Add'l Dismissal Mem. at 4 n. 5.) While its first motion to dismiss was pending, AppleIllinois filed a second motion to dismiss, seeking the dismissal of the 12 additional opt-in plaintiffs who had failed to appear for their depositions. AppleIllinois raises the same arguments in support of its second motion to dismiss as it did in the first, and plaintiffs similarly oppose the motion.
While both dismissal motions were pending, AppleIllinois issued a third round of deposition notices, this time seeking the depositions of an additional 12 opt-in plaintiffs. (Pls.' Mot., Ex. A.) Plaintiffs responded by seeking a protective order limiting discovery to what is "reasonable and representative," and an order that the parties "determine a collaborative methodology that will allow Defendants to obtain the remaining deposition testimony that they seek." (Id. at 9.) AppleIllinois opposes the motion, stating that it is entitled to more than the six depositions it has been able to ...