On July 15, 2010, in Camesi v. University of Pittsburgh Medical Center (pdf) the federal court for the Western District of Pennsylvania dismissed with prejudice more than three dozen potential plaintiffs who failed to participate in discovery in a wage and hour collective action under the FLSA. This ruling followed the court’s May 24, 2010 decision (pdf) dismissing with prejudice three other opt-in plaintiffs who had not responded to discovery. 

In support of the dismissal, the court referred to its prior decision on May 24, 2010 in which the court had ruled that failure of putative plaintiffs to timely respond to discovery would result in their dismissal with prejudice, and would  preclude them from pursuing their claims collectively in a different action.  The court stated that “allowing the dismissed employees to...file or join [other collective actions] would be inconsistent with the collective action procedures established under the FLSA, and it would permit putative members to play ‘fast and loose’ with the opt-in procedures."  Such individuals could, however, file individual suits. 

Significantly, in its May 24 order, which set up the rules for discovery that resulted in dismissal of plaintiffs who failed to respond, the court relied on the language in the court-approved notice that had been sent to potential opt-in plaintiffs informing them that “while this suit is proceeding, you ... may be required to respond to written questions, participate in depositions and/or testify in court.”  The court’s ruling thus highlights the importance for defendants of insisting on such language in notices to potential plaintiffs in opt-in collective actions under the FLSA.

This entry was written by Michele Malloy