United States District Court, N.D. California
ORDER GRANTING MOTION TO WITHDRAW AND DISMISSING
CLAIMS WITHOUT PREJUDICE RE: DKT. NO. 673
C. SPERO Chief Magistrate Judge.
before the Court is Plaintiffs' Motion to Withdraw
Putative Class Representatives Matt Lewis and Matt Gorgen and
Dismiss their Claims without Prejudice ("Motion").
Defendants do not object to Gorgen and Lewis's withdrawal
but ask the Court to dismiss their claims with
prejudice and require that both Gorgen and Lewis sit for a
"seven hour deposition, in New York City, during regular
business hours and on dates selected by Defendants before
July 8, 2016." The Court finds that the Motion is
suitable for determination without oral argument and
therefore vacates the scheduled July 8, 2016 hearing as to
the instant Motion only pursuant to Civil Local Rule 7-1(b).
For the reasons stated below, the Motion is
amended their complaint in this action to add Matt Gorgen as
a named Plaintiff on April 21, 2104 and Matt Lewis as a named
Plaintiff on May 20, 2015. See Docket Nos. 39, 382.
Gorgen played for the Tampa Bay Rays and Arizona
Diamondbacks; Lewis played for the Atlanta Braves. Both
Gorgen and Lewis responded to written discovery propounded
upon them by Defendants, including the production of
documents. Pouya Decl. ¶¶ 4-5.
of 2015 the parties collaborated to prepare a schedule of all
43 Plaintiffs named in the Second Consolidated Amended
Complaint. Bloom Decl. ¶ 4. On July 27, 2015, Defendants
noticed Gorgen's deposition for January 14, 2016 and
Lewis's deposition for January 26, 2016. Id.
According to Plaintiffs' counsel, when Gorgen and Lewis
were informed of the noticed depositions, they "decided
they no longer wished to serve as class representatives in
this action." Pouya Decl. ¶ 7. It is unclear when
Gorgen and Lewis were informed of the depositions or when
they told counsel of their decisions.
January 5, 2016, Plaintiffs' counsel informed Defendants
that Gorgen needed to cancel the scheduled January 14, 2016
due to a conflict. Bloom Decl. ¶ 5. When Plaintiffs were
unable to come up with an alternative date that worked for
Gorgen, Defendants renoticed the deposition for February 8,
2016, a time that was convenient for Defendants because they
were already conducting depositions of three other named
Plaintiffs that week in the same location. Id.
¶ 7. On February 3, 2016, Plaintiffs informed Defendants
that Gorgen would not sit for his deposition on February 8
and two days later, on February 5, they informed Defendants
that Gorgen would be withdrawing from the case. Bloom Decl.
¶ 5; Pouya Decl. ¶ 9.
January 22, 2016, Plaintiffs' counsel cancelled the Lewis
deposition scheduled to occur on January 26, 2016. Bloom
Decl. ¶ 11. The next day, Plaintiffs' counsel
informed Defendants that Lewis had decided to withdraw. Pouya
Decl. ¶ 8.
to Defendants, they informed Plaintiffs that they still
planned to depose Gorgen and Lewis. Bloom Decl. ¶¶
10, 12. Plaintiffs declined to provide alternative dates,
however, taking the position that rescheduling the
depositions would be unnecessary because they intended to
bring a motion seeking leave for Gorgen and Lewis to
withdraw. Id. In their Motion for Class
Certification, Plaintiffs stated that they intended to seek
leave to amend to add Aaron Dott, a current opt-in Plaintiff,
to substitute in for Matt Gorgen. See Docket No. 496
at 17 n. 75.
20 and 23, 2016, Defendants served subpoenas on
Plaintiffs' counsel rescheduling the depositions for June
6 (Lewis) and June 9 (Gorgen). Bloom Decl. ¶¶
15-16, 23-24. In the interim, Plaintiffs filed the instant
Motion. Plaintiffs contend they provided a copy of the Motion
to Defendants the day before they filed it and that they were
informed on the same day that Defendants would oppose the
Motion; Defendants state that Plaintiffs filed the Motion
without following up and before Defendants had informed
Plaintiffs' counsel as to whether they would consent to
the relief requested in the Motion. Pouya Decl. 12; Bloom
Decl. ¶ 21.
refused to reschedule the noticed depositions unless the
parties could agree on "reasonable alternative times,
dates, and/or locations;" because Plaintiffs refused to
provide alternative dates, the depositions were not
rescheduled. Bloom Decl. ¶ 22. Plaintiffs brought
motions for protective orders relating to the depositions,
which the Court denied on June 13, 2016 on the basis that the
parties had not adequately met and conferred. Docket No. 677.
Gorgen and Lewis did not appear at the noticed depositions.
Bloom Decl. ¶¶ 23-24.
Motion, Plaintiffs ask the Court to dismiss Gorgen and Lewis
pursuant to Rule 41(a)(2) and assert that the dismissal
should be without prejudice and with no special conditions.
Defendants do not object to the dismissal of Gorgen and Lewis
but ask the Court to dismiss their claims with prejudice and
to further require that Gorgen and Lewis sit for depositions
of seven hours each.