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Forauer v. Vermont Country Store, Inc.

United States District Court, D. Vermont

June 11, 2014

DOREEN FORAUER, NANCY J. BART, MICHAEL MULLADY, CANDY MANNING, JOLENE KALANQUIN, GWENDOLYN C. TAFT, COURTNEY TOWLE, CANDICE MAYETTE, ROBERT MIDDLETON, MARISSA FITZGERALD, SUSAN D. CLARK, LINDA J. KASUBA, MATTHEW MARTINDALE, MARK W. MILLER, MARY LOU CAMERON, DONNA G. PRIOLO, RONALD S. AUSTIN, JAMIE TUCKER, CAROLE KULIKOWSKI, DEVONR. AUSTIN, DEBBIE BEZIO, AMANDA PRITCHARD, CAROL JEAN PRITCHARD, LINDA STOCKER REUTHER, and DEBORAH CONNORS, Plaintiffs,
v.
THE VERMONT COUNTRY STORE, INC., Defedent.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO COMPEL CERTAIN PLAINTIFFS TO ATTEND DEPOSITION (Doc. 57)

CHRISTINA REISS, Chief District Judge.

Pending before the court is Defendant Vermont Country Store, Inc.'s ("VCS") motion to compel certain Plaintiffs to attend their depositions in this conditionally-certified action under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (the "FLSA"). (Doc. 57.) Plaintiffs include named Plaintiff, Doreen Forauer, and twenty-four opt-in Plaintiffs. Plaintiffs allege that VCS required them and other similarly-situated employees to perform certain duties before and after their shifts for which the employees were not compensated in a violation of the FLSA, 29 U.S.C. § 206, which requires employers to pay all employees at least the minimum wage for all hours worked.

At this juncture, at least a portion of the Plaintiffs have refused, without explanation, to attend their depositions, and four Plaintiffs who currently reside outside Vermont, including Ms. Forauer, refuse to attend in person and seek an alternative means for taking their depositions that would not require them to travel to Vermont.

Because VCS contends it is entitled to depose all Plaintiffs who opted-in, including the named Plaintiff, VCS requests the court to order all Plaintiffs to attend their depositions in person in Vermont.

Plaintiffs oppose the motion to compel, arguing that VCS is not entitled to depose all Plaintiffs because VCS has already deposed a sufficient sample of Plaintiffs. Plaintiffs request that ifthe court orders them to attend their depositions, they be allowed to attend remotely so that Plaintiffs who now reside outside of the state do not have to travel to Vermont.

The court took the matter under advisement on April 17, 2014.

Plaintiffs are represented by Christopher J. Larson, Esq. and Erin H. Gallivan, Esq. VCS is represented by Andrew H. Maass, Esq.

I. Factual and Procedural Background.

After filing the pending action on December 11, 2012, Ms. Forauer, the named Plaintiff, sought conditional certification of a collective action, pursuant to 29 U.S.C. § 216(b), for "a class of all current and former Telemarketing Sales Representatives and Customer Service Representatives employed by The Vermont Country Store within three years prior to the date of the [court's] order, who worked for [The Vermont Country Store] but were not paid minimum wages for a portion of the hours worked." (Doc. 7-1 at 1.) On July 31, 2013, the court granted Ms. Forauer's motion for conditional certification of a collective action under the FLSA and conditionally certified a class of all current and former telemarketing sales representatives and customer service representatives employed by VCS within three years prior to the date of the July 31, 2013 Opinion and Order. See Forauer v. Vt. Country Store, Inc., 2014 WL 3967932, at *7 (D. Vt. July 31, 2013).

During the pendency of the subsequent 60-day opt-in period, twenty-four Plaintiffs filed Consents to become a party plaintiff. On February 13, 2014, VCS noticed the depositions of all twenty-five Plaintiffs. Of the twenty-five Plaintiffs, the named Plaintiff, Ms. Forauer, and three opt-in Plaintiffs, Michael Mullady, Candice D. Mayette, and Donna G. Priolo, informed VCS that they would not appear in person in Vermont for their depositions because they no longer reside there.[1] When Plaintiffs' counsel offered for Plaintiffs to appear by telephone or video, VCS insisted that all Plaintiffs appear in person for deposition. Two additional opt-in Plaintiffs, Linda Kasuba and Matthew G. Martindale, failed to appear at their scheduled depositions without explanation.[2]

After the parties attempted in good faith to resolve this dispute, on April 1, 2014, VCS filed the pending motion to compel the depositions of the named Plaintiff, Ms. Forauer, and the five opt-in Plaintiffs, who include Mr. Mullady, Ms. Mayette, Ms. Priolo, Ms. Kasuba, and Mr. Martindale.

Since VCS filed the pending motion to compel, an additional six Plaintiffs[3] have apparently refused to attend their depositions that were scheduled for various dates in April 2014, although any explanation for their failure to do so was not provided to the court.

II. Conclusions of Law and Analysis.

A. Whether VCS Is Entitled to Depose All Plaintiffs in ...


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