Opinion
11-CV-246 (SLT) (RER)
10-18-2012
YU XIAN LIU, Plaintiff, v. VEGAN THYME, INC, and CHAO CHI KUO, Defendants.
MEMORANDUM & ORDER
TOWNES, United States District Judge:
On January 18, 2011, Plaintiff Yu Xian Liu commenced this action alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and New York labor laws. Plaintiff alleged that during the period from October 5, 2005, to October 17, 2010, her former employer, Vegan Thyme, Inc., and Chao Chi Kuo, as Chairman of the Board or Chief Executive Officer of the company (collectively, "Defendants"), failed to pay her minimum wage and overtime wages as required under these statutes.
BACKGROUND
On February 9, 2012, the Court denied Defendants' motion to dismiss, (Docket No. 11), and Defendants filed their answer on February 24, 2012, (Docket No. 12). Since that time, Plaintiff made a habit of noncompliance during pretrial discovery. Magistrate Judge Reyes noted that Plaintiff's counsel failed to appear at a status conference on July 11, 2012, had not served any discovery requests, and had not responded to Defendants' discovery requests. Judge Reyes thereafter granted Defendants' unopposed motion to compel responses to their discovery demands, (Docket No. 17), but Plaintiff did not comply. On August 27, 2012, Judge Reyes awarded costs to Defendants pursuant to Federal Rule of Civil Procedure 37(a)(5), assessed against Plaintiff's counsel. (Docket No. 21). On October 3, 2012, Defendants filed a motion for a premotion conference, seeking to make a motion to dismiss pursuant to Federal Rule of Civil Procedure 37 for failure to cooperate in discovery and Federal Rule of Civil Procedure 41(b) for failure to prosecute. (Docket No. 22). Rather than respond to Defendants' motion, Plaintiff instead filed a notice of voluntary dismissal without prejudice pursuant to Federal Rule of Civil Procedure 41(a). (Docket No. 23)
DISCUSSION
Federal Rule of Civil Procedure 41(a)(1)(A) allows a plaintiff to dismiss an action voluntarily without a court order "subject to . .. any applicable federal statute" by filing (1) "a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment"; or (2) "a stipulation of dismissal signed by all parties who have appeared." Without reaching the impact of the FLSA as an "applicable federal state" on this provision, it is worth noting that Defendants in this case have already filed an answer (Docket No. 12), so that Plaintiff is foreclosed from proceeding under Rule 41(a)(1). Any dismissal would therefore require a court order, see Rule 41(a)(2) and (b), which this Court declines to provide.
CONCLUSION
For the reasons set forth above, Plaintiff's notice of voluntary dismissal (Docket No. 23) is vacated and she is directed to respond to Defendants' premotion conference request (Docket No. 22) within seven days of the date of this order.
SO ORDERED
______________________
SANDRA L. TOWNES
United States District Judge
Dated: October 18, 2012
Brooklyn, New York