Opinion
CIVIL ACTION NO. 17-274-SDD-RLB CIVIL ACTION NO. 19-871-SDD-RLB
10-08-2020
OSCAR VALLE, ET AL. v. BEAURAYNE BUILDERS, LLC, ET AL. and ANDERSON CASTILLO, ET AL. v. BEAURAYNE BUILDERS, LLC, ET AL.
NOTICE
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
Signed in Baton Rouge, Louisiana, on October 8, 2020.
/s/ _________
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiffs originated this action with the filing of their Complaint (R. Doc. 1) on April 28, 2017, a collective action for unpaid wages pursuant to the Fair Labor Standards Act ("FLSA"). After the filing of suit, Plaintiffs filed various Notices of Class Member Consent Forms Returned (hereinafter, the "Opt-Ins"). (R. Docs. 21, 22, 62, 64, 80, 81, and 86). A telephone conference was held on February 4, 2020, wherein the parties discussed the possible resolution of this litigation, and noted potential issues with resolving the claims of certain plaintiffs who had previously opted into the action. (R. Doc. 95). On February 6, 2020, the Court issued an Order setting an in-person conference requiring personal appearance of the 8 plaintiffs specifically named therein. At the March 5, 2020 status conference, five of those plaintiffs appeared, and one plaintiff indicated through counsel his intention to accept the proposed settlement. (R. Doc. 97). Two plaintiffs, Gustavo Urbina and Edwin Bonilla, failed to appear as ordered. (R. Doc. 97 at 1-2).
As noted in the Minute Entry from the March 5, 2020 conference, counsel for Plaintiffs represented they have been unable to contact Mr. Urbina, and mail sent to his last known address was returned as undeliverable. (R. Doc. 97 at 1). Counsel for Plaintiffs was able to contact Mr. Bonilla, and informed him of his required appearance, but he failed to appear. (R. Doc. 97 at 1). A signed Notice of Consent was filed as to Mr. Bonilla on October 11, 2017 (R. Doc. 22-1 at 1), and as to Mr. Urbina on August 10, 2018 (R. Doc. 62-1 at 20). Pursuant to this Court's March 5, 2020 Order (R. Doc. 99), the last known addresses of Mr. Urbina and Mr. Bonilla were filed under seal on March 6, 2020. (R. Doc. 102). As an incorrect address was filed, pursuant to this Court's August 3, 2020 Order (R. Doc. 108), the last known address for Mr. Urbina was filed under seal on August 7, 2020. (R. Doc. 109).
The Court held a telephone conference on July 22, 2020. (R. Doc. 107). Therein, counsel for Plaintiffs represented that he continues to be unable to contact Mr. Urbina and has been unable to have any further contact with Mr. Bonilla, despite diligent efforts. On August 18, 2020, the Court issued an Order (R. Doc. 118) requiring Mr. Urbina and Mr. Bonilla show cause, in writing, within thirty (30) days why their action should not be dismissed with prejudice for failure to prosecute. Mail was returned as undeliverable as to Mr. Urbina on August 31, 2020 (R. Doc. 111), and the Court has received no response from Mr. Urbina or Mr. Bonilla within the time proscribed as of the date of this Report.
This litigation has been pending for over three years. Mr. Bonilla and Mr. Urbina have both affirmatively opted into the collective action but have failed to appear before the Court as ordered. They have not responded to counsel. Additionally, counsel for Plaintiffs represents that Mr. Bonilla was previously informed of his required appearance, but failed to do so, while Mr. Urbina can no longer be reached at his last known address and there is no evidence that he provided updated contact information.
Accordingly, the Court finds good cause to recommend dismissal of the claims of Plaintiffs Gustavo Urbina and Edwin Bonilla for failure to prosecute.
Based on the foregoing,
IT IS RECOMMENDED that the claims of Plaintiff Gustavo Urbina and Plaintiff Edwin Bonilla be DISMISSED without prejudice for failure to prosecute. The Clerk of Court shall send a copy of this Report and Recommendation to Plaintiffs Gustavo Urbina and Edwin Bonilla at their last known addresses as noted in R. Doc. 102 and R. Doc. 109.
Signed in Baton Rouge, Louisiana, on October 8, 2020.
/s/ _________
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE