Opinion
20-CV-7941 (VEC) (JLC)
06-28-2022
JOHN CARLOS CASTILLO ROSARIO, Plaintiff, v. LOVELY TWINS WINES & LIQUORS, INC., et al., Defendants.
REPORT AND RECOMMENDATION
JAMES L. COTT UNITED STATES MAGISTRATE JUDGE
To the Honorable Valerie E. Caproni, United States District Judge:
Plaintiff John Carlos Castillo Rosario, represented by counsel, commenced this wage-and-hour case by filing a complaint on September 25, 2020. Dkt. No. 1. On April 5, 2022, you referred this case to me for general pretrial supervision and dispositive motions, and to hold a conference to ascertain whether Plaintiff knowingly and voluntarily wished to withdraw his complaint against Defendants in light of the communications to the Court at Dkt. Nos. 53 and 54. Dkt. No. 55.
Following the referral, I scheduled an in-person conference for April 14, 2022 and directed Plaintiff to attend. Dkt. No. 56. Plaintiff's counsel subsequently advised the Court that they had been unable to communicate with Plaintiff since March 9, 2022. Dkt. No. 57. On April 11, 2022, Plaintiff's counsel reiterated that they had been unable to communicate with Plaintiff since March 9, 2022, and thus had not been able to inform him of the conference to be held by the Court. Dkt. No. 59. At the parties' request, I adjourned the conference until May 26, 2022. Dkt. No. 60.
Plaintiff's counsel then requested to withdraw as counsel on May 5, 2022, citing their continued inability to communicate with Plaintiff. Dkt. No. 61. At my direction, Plaintiff's counsel submitted an affirmation on May 10, 2022, in which they indicated 12 distinct dates on which they attempted to communicate with Plaintiff, to no avail, via a combination of text messages, cell phone calls, and office landline calls between March 9 and May 4, 2022. Dkt. Nos. 62, 63. They further attest to having sent Plaintiff letters in English and Spanish to his residence and place of employment. Id.
On May 26, 2022, counsel appeared before me at a telephone conference, but Plaintiff did not attend. Dkt. No. 65. Following the conference, I ordered Plaintiff to submit a letter to the Court by June 27, 2022, indicating whether he planned to continue with this case, and advising him that should he fail to send such a letter, I would recommend the case be dismissed for failure to prosecute. Id. Plaintiff's counsel filed proof of service of this order by mail on Plaintiff on May 27, 2022. Dkt. No. 66. To date, Plaintiff has not submitted a letter or otherwise indicated to the Court his interest in continuing with the case.
In light of these circumstances, I recommend that the case be dismissed without prejudice for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, (2d Cir. 2001) (district court authority to dismiss a plaintiff's case sua sponte for failure to prosecute is “unquestioned”).
The Clerk is respectfully directed to mail a copy of this order to Plaintiff at the following addresses:
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Valerie E. Caproni, United States Courthouse, 40 Foley Square, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Caproni. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham. Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.