Opinion
21-CV-1537 (ALC) (KHP)
12-04-2023
ORTIZ et al., Plaintiffs, v. ESKINA 214 CORP. et al., Defendants.
FROM: KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE:
REPORT AND RECCOMENDATION
TO: THE HONORABLE ANDREW L. CARTER, UNITED STATES DISTRICT JUDGE
I respectfully recommend that Plaintiffs Ricardo Ortiz, Henry Flores, and Mario Flores (the “Named Plaintiffs”) be dismissed from this action pursuant to Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) for failure to prosecute the case and failure to follow Court orders. Following the dismissal of the Named Plaintiffs, the action should be discontinued in light of the Opt-In Plaintiffs' acceptance of Defendant's Offer of Judgement (ECF No. 154) which was entered on November 29, 2023. (ECF No. 156).
PROCEDURAL HISTORY
This action was commenced on February 19, 2021 as a class and collective action seeking declaratory and injunctive relief under the Fair Labor Standards Act and the New York Labor Law. (ECF No. 1). On November 2, 2021, Plaintiff's motion for conditional collective certification was granted in part and denied in part. Therein, the Court conditionally certified a collective of potential plaintiffs who were employed as non-managerial staff at any time between February 19, 2019, to the present. By order dated June 6, 2023, the three Named Plaintiffs were ordered to appear for a status conference before the undersigned and be prepared to discuss settlement. (ECF No. 137). All three Named Plaintiffs failed to appear as ordered for the July 25, 2023 conference, and were subsequently ordered to appear for a hearing on September 26, 2023. (ECF No. 143). By September 7, 2023, the Named Plaintiffs filed letters with this court withdrawing their claims. (ECF No. 146). Following receipt of those letters, all three Named Plaintiffs failed to appear for the conference scheduled for September 26, 2023. (ECF No. 147).
LEGAL STANDARD
Rule 41(b) provides that a court may dismiss an action “[f]or a failure of the plaintiff to prosecute or to comply with . . . any order of the court.” Rule 41(b) gives the district court authority to dismiss a plaintiff's case sua sponte. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)).
In determining whether to dismiss a case under Rule 41(b), courts consider the following factors: (1) the duration of the plaintiff's failures, (2) whether the plaintiff received notice that further delays would result in dismissal, (3) whether the defendant is likely to be prejudiced by further delay, (4) the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard, and (5) the efficacy of lesser sanctions. Id. No single factor is dispositive. U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004).
ANALYSIS
Dismissal under Rule 41(b) is appropriate here. For the past four months, Named Plaintiffs have failed to make an appearance in this case, failed to comply with court orders, and failed to appear for case management conferences. See, e.g. Walters v. City of New York, 2022 WL 4031425, at *2 (S.D.N.Y. Sept. 2, 2022), motion for relief from judgment denied, 2023 3 WL 171887 (S.D.N.Y. Jan. 12, 2023) (dismissing case under Rule 41(b) where plaintiff stopped showing up for conferences); Hartley v. Devlin, 2018 WL 4087976, at *2 (N.D.N.Y. July 30, 2018), report and recommendation adopted, 2018 WL 4078267 (N.D.N.Y. Aug. 27, 2018) (recommending dismissal under Rule 41(b) where in the span of five months, the plaintiff failed to appear for two conferences and respond to a motion to dismiss).
The Court has granted Named Plaintiffs numerous opportunities to make an appearance and prosecute their claims, but Plaintiffs have not done so and have clearly expressed in their letter to the Court that to have no desire or inclination to do so. The Court has also expressly warned Plaintiffs several times that continued failure to prosecute this action would result in sanctions, up to and including dismissal, but their failure to prosecute has continued.
Defendants are prejudiced by Named Plaintiffs' failure to prosecute, because their continued presence in this litigation has injected confusion as to what claims remain in the case, and this likely will impede a timely resolution of the claims.
Finally, Named Plaintiffs' “failure to prosecute and . . . failures to appear at court-ordered conferences demonstrate that any lesser sanction would be ‘an exercise in futility.'” Edwards v. Horn, 2012 WL 1292672, at *2 (S.D.N.Y. Apr. 13, 2012) (citation omitted), report and recommendation adopted, 2012 WL 1592196 (S.D.N.Y. May 4, 2012)
In light of all of these factors, the sanction of dismissal is appropriate.
CONCLUSION
For the above reasons, I respectfully recommend that Named Plaintiffs be dismissed from this case for failure to prosecute pursuant to Rule 41(b).
NOTICE
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
If Defendants file written objections to this Report and Recommendation, Plaintiffs may respond to the objections within fourteen days, and pro se Plaintiff may respond within seventeen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). If Plaintiffs file written objections, Defendants may respond within fourteen days. Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Andrew L. Carter at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Carter. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).