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Apsley v. Boeing Co.

United States District Court, D. Kansas

January 7, 2015

PERRY APSLEY, et al., Plaintiffs,
v.
THE BOEING COMPANY and SPIRIT AEROSYSTEMS, Defendants.

MEMORANDUM AND ORDER

ERIC F. MELGREN, District Judge.

Twenty-six plaintiffs assert claims for age discrimination against Defendants The Boeing Company and Spirit Aerosystems for hiring decisions made in 2005. This matter comes before the Court on Defendants' Motion to Dismiss (Doc. 527) and Plaintiffs' Motion for Rule 54(b) Certification (Doc. 531). Because the Court finds that Plaintiffs have failed to comply with a court order requiring complete responses to discovery requests, the Court grants Defendants' motion to dismiss all remaining claims of all remaining plaintiffs. Because this Order constitutes a final judgment, Plaintiffs' motion for Rule 54(b) certification is denied as moot.

I. Factual and Procedural Background

This lawsuit was filed as a class action in 2005, alleging age discrimination for hiring decisions arising from Boeing's sale of the assets of its commercial facilities to Spirit. Plaintiffs are former Boeing employees who were not hired by Spirit when it bought Boeing's Wichita assets. In 2010, the Court granted summary judgment in Defendants' favor on Plaintiffs' collective action claims, which was affirmed by the Tenth Circuit in 2012.[1] In 2013, an amended complaint was filed on behalf of 87 plaintiffs alleging individual counts of age discrimination. In February 2014, 10 plaintiffs were dismissed as a result of settlement agreements.

In March 2014, Defendants filed a motion to compel and asked for sanctions for Plaintiffs' alleged failure to comply with their discovery obligations. As a result of an agreement between the parties, Magistrate Judge Karen Humphreys denied the motion a week later and instead issued an agreed-upon order mandating that Plaintiffs provide "a complete, verified answer to Defendants' interrogatories, a complete response to Defendants' requests for production and all responsive documents, a photograph of themselves, and a signed consent to release records" to Defendants' counsel by April 11, 2014.[2] The order also warned that "[i]f any Plaintiff fails to respond as required in this Order, their claims will be dismissed with prejudice without further notice as a sanction for failure to comply with their discovery obligations and to prosecute their action."[3] The deadline was extended to May 19, 2014, with the admonition that "this new deadline will be strictly and rigidly enforced."[4] The April 2014 order also directed Plaintiffs' counsel to identify inactive plaintiffs who had ceased communication with counsel.

Before the first deadline had passed, 14 more plaintiffs were dismissed as a result of settlements. Two other plaintiffs were dismissed as deceased, leaving 61 plaintiffs. After the second deadline passed in May, 35 plaintiffs were identified as inactive and dismissed without opposition for failing to comply with the Court's orders. As a result, 26 plaintiffs remain. In June 2014, Defendants filed a Motion to Dismiss (Doc. 527). In July 2014, Plaintiffs filed a Motion for Rule 54(b) Certification (Doc. 531) to appeal an August 2013 order that awarded Defendants court costs related to the Court's granting of summary judgment in Defendants' favor. After a hearing in October 2014, the motions are fully briefed and ripe.[5]

II. Legal Standard

Under Federal Rule of Civil Procedure 37, a district court has authority to dismiss an action if a party fails to obey an order to provide discovery.[6] A district court has broad discretion to use sanctions to make sure that lawyers and parties fulfill their duty to promptly and responsibly manage the litigation.[7] A dismissal order should be based on willfulness, bad faith, or some fault rather than an inability to comply.[8] The Tenth Circuit suggests that a district court consider various factors to decide whether to issue a dismissal sanction: "(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for non-compliance; and (5) the efficacy of lesser sanctions."[9] These factors are not required but are offered as criteria the district court may wish to consider.[10]

III. Analysis

In March 2014, Defendants filed a motion to compel and asked for sanctions for Plaintiffs' alleged failure to comply with their discovery obligations. A week later, Magistrate Judge Karen Humphreys dismissed the motion and issued the following order, which was the result of an agreement between the parties:

The Plaintiffs shall provide to Defendants' counsel the following by April 11, 2014: a complete, verified answer to Defendants' interrogatories, a complete response to Defendants' requests for production and all responsive documents, a photograph of themselves, and a signed consent to release records. If any Plaintiff fails to respond as required in this Order, their claims will be dismissed with prejudice without further notice as a sanction for failure to comply with their discovery obligations and to prosecute their action. No Plaintiff will be provided relief from this Order absent a showing of extraordinary circumstances in a pleading filed on or before April 18, 2014.[11]

At stake are separate counts of age discrimination alleged by the 26 remaining plaintiffs. Defendants seek dismissal of all 26 plaintiffs with prejudice as a sanction for failure to comply with their discovery obligations as mandated by the order. Specifically, Defendants argue that all 26 plaintiffs should be dismissed for failure to provide complete discovery responses to requests for production and all responsive documents. Defendants have put Plaintiffs into three categories: 12 who produced no documents at all, three who provided no documents regarding income, and 11 who produced some documents regarding income. Each plaintiff provided a photo and a consent form to release information. At issue is whether Plaintiffs complied with the Court's order to provide "a complete, verified answer to Defendants' interrogatories" and "a complete response to Defendants' requests for production and all responsive documents."

Plaintiffs argue that they have produced all relevant documents in their possession and have complied with the Court's orders within the existing rules. Further, Plaintiffs argue that they have provided Defendants with authorizations to obtain all employment records and tax records, making them equally accessible to the requesting party.

It appears that all 26 plaintiffs have provided a verified answer to Defendants' interrogatories. Most of the missing information or documents relate to mitigation of damages. Defendants' arguments center around Plaintiffs' failure to produce documentation about income earned after no longer being employed by Boeing. Defendants' request for production included the following requests:

2. W-2s, 1099s, and other documentation of compensation or renumeration you received since January 1, 2004.
14. Documents supporting each itemized claim for damages you identified in your answers to defendants' interrogatories to you, such as tax records, financial statements, receipts, medical records, or other documents that support each item of damages you are seeking.

Defendants argue that Plaintiffs had a duty to preserve tax documents relating to their income because they sought back wages dating back to 2005, when the complaint was filed. At the motion hearing, Defendants represented that Plaintiffs' counsel agreed that the documents were owed and that Plaintiffs' counsel planned to request missing tax returns from the IRS. Plaintiffs argue that they have provided signed consent forms to release information, including tax returns. But the Court notes that these forms do not address tax records, only employment and educational records. Defendants represent that none of the 26 plaintiffs have provided the IRS form that would authorize them to obtain copies of their tax information from the IRS.[12]

A. The Court Must Assess Each of the 26 Plaintiffs Individually

All 26 plaintiffs have provided answers to interrogatories and have responded to Defendants' requests for production. The issue is one of measuring the responses to determine whether those responses are sufficient to avoid the sanction of dismissal. Defendants have addressed each of the 26 plaintiffs' responses individually, noting varying degrees of noncompliance. Because each of the 26 has separate claims that stand or fall on their own merits, the Court also addresses the responses of each plaintiff individually.

Perry Apsley

Apsley is one of 12 plaintiffs who produced no documents at all and one of 15 identified by Defendants as providing deficient interrogatory answers. Specifically, Apsley did not list his employers or income since 2005. His interrogatory answers to these questions referenced an "attached response, " but there were no attachments. Apsley produced no tax documentation.

Bob Bailey

Bailey did not produce tax returns for 2010 to 2013 despite being informed two weeks before the deadline that they were missing. His response indicated that he submitted tax documents from 2005 to 2009. Bailey indicated that he received retirement beginning in 2009 but did not otherwise indicate that he did not file a tax return from 2010 to 2013. Bailey also reported receiving a disability benefit beginning in May 2013 but provided no documentation of either the nature of the claim or the amount of ...


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