Pavon v. Joe's Pizzeria et al

Filing 60

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Memorandum and Order, the Report and Recommendation issued by Magistrate Judge Mann on February 22, 2013 59 is adopted in its entirety as the opinion of the court . Plaintiff Omar Juarez's claims are hereby dismissed, with prejudice, for lack of prosecution pursuant to Federal Rule of Civil Procedure 41(b). The Clerk of the Court is respectfully requested to enter judgment in favor of defendants and aga inst Mr. Juarez. Additionally, the Clerk of the Court is respectfully requested to serve a copy of the Judgment, this Memorandum and Order, and an appeals packet upon Mr. Juarez at his last known address, along with Spanish-language translations of all these enumerated documents, and to note service on the docket. Plaintiff Omar Juarez may file a notice of appeal of this Memorandum and Order within thirty (30) days of the date of the entry of the judgment, as specified in the appeals packet. Ordered by Judge Kiyo A. Matsumoto on 5/16/2013. (Kelley, Jamuna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------- X
GERARDO PAVON, ET AL.,
ORDER ADOPTING REPORT
AND RECOMMENDATION

Plaintiffs,
-against-

11-cv-4544(KAM)(RLM)
JOE’S PIZZERIA, ET AL.,
Defendants.
------------------------------------- X
MATSUMOTO, United States District Judge:
On September 19, 2011, plaintiff Gerardo Pavon
initiated this action on behalf of himself and other similarly
situated employees pursuant to the Fair Labor Standards Act, as
amended, 29 U.S.C. § 201, et seq. (“FLSA”), against Joe’s
Pizzeria, Joseph Patani, and Kamran Malakan (“defendants”).
(See generally ECF No. 1, Complaint.)

On December 9, 2011, Omar

Juarez filed a consent form to become a party to this class
action suit.

(ECF No. 19, Consent by Omar Juarez.)

On March 27, 2012, after the parties had commenced
discovery under the supervision of Magistrate Judge Roanne L.
Mann, Magistrate Judge Mann held a status conference to explore
whether Mr. Pavon and Mr. Juarez intended to pursue their claims
against defendants.

(See Minute Entry dated 3/27/2012.)

After

determining that plaintiffs intended to proceed with their
claims, Judge Mann set June 15, 2012 as the deadline for fact
discovery to be completed, and also ordered the parties to

submit a status letter by June 8, 2012.

(Id.)

On August 10, 2012, counsel for plaintiffs, Peter
Cooper, Esq., filed a letter with the court seeking permission
to withdraw as attorney for plaintiffs.
Motion to Withdraw, dated 8/10/2012.)

(ECF No. 41, Letter
According to Mr. Cooper,

he had tried and failed many times in the months since the March
27, 2012 status conference to contact Mr. Pavon and Mr. Juarez,
but both plaintiffs had refused to communicate with Mr. Cooper.
(ECF No. 41-1, Affirmation of Peter Cooper, Esq. in Support of
Motion to Withdraw, dated 8/10/2012, ¶ 4.)
After receiving Mr. Cooper’s motion to withdraw, Judge
Mann scheduled a status conference for September 20, 2012 to
address the pending motion and specifically ordered both Mr.
Pavon and Mr. Juarez to appear in person.
Scheduling Order, dated 8/10/2012.)

(ECF No. 42,

Judge Mann further warned

Mr. Pavon and Mr. Juarez that failure to appear would result in
granting their counsel’s motion to withdraw, imposition of
monetary sanctions, and potential dismissal of their claims with
prejudice.

(Id.)
A status conference was held on September 20, 2012

before Judge Mann.
9/20/2012.)

(ECF No. 43, Minute Entry and Order, dated

Mr. Pavon appeared at the status conference along

with Mr. Cooper, Mr. Pavon’s wife, and a Spanish-language
interpreter.

(Id.)

Mr. Juarez, however, failed to appear.
2

(Id.)

Because Mr. Pavon had appeared in person, Judge Mann

declined at that time to recommend dismissal of either
plaintiff’s claim. 1

(Id.)

Subsequently, on January 18, 2013, Judge Mann held an
order to show cause hearing with the parties to address the
unrelated issue of defendant Kamran Malakan’s failure to appear
for a court-ordered arbitration.
dated 1/18/2013.)

(ECF No. 55, Minute Order,

At the January 18, 2013 show cause hearing,

Mr. Cooper informed Judge Mann that Mr. Juarez had continued to
ignore Mr. Cooper’s communication attempts and that, at that
point, Mr. Juarez had been ignoring Mr. Cooper for more than a
year.

(ECF No. 56, Order to Show Cause, dated 1/18/2013.)
As a result, on January 18, 2013, Judge Mann issued an

Order to Show Cause directed to Mr. Juarez, ordering him to show
cause in writing, on or before January 28, 2013, why his claims
should not be dismissed for lack of prosecution.

(Id. at 2.)

Judge Mann also expressly informed Mr. Juarez in the Order to
Show Cause dated January 18, 2013 that if the court did not
receive his response by January 31, 2013, Mr. Juarez’s claims
would be dismissed and Mr. Cooper’s motion to withdraw as his
attorney would be granted.

(Id.)

1

Mr. Pavon has apparently recently settled his claim against defendant Kamran
Malakan; however, Mr. Pavon has yet to file a stipulation of discontinuance
of Mr. Pavon’s claims against Mr. Malakan, even though Judge Mann ordered him
to do so on or before April 1, 2013. (See ECF No. 58, Order dated
2/20/2013.)

3

Mr. Juarez was served with the Order to Show Cause
dated January 18, 2013, along with a Spanish translation, via
Federal Express at his last known address of record.

(See

docket entry dated 1/18/2013 (clerk’s notation of service).)

As

of February 22, 2013, Mr. Juarez had not responded to the
January 18, 2013 Order to Show Cause issued by Judge Mann.
Indeed, Mr. Juarez has not responded to the Order to Show Cause
as of the date of this Memorandum and Order.
DISCUSSION
Presently before the court is a Memorandum and Order/
Report and Recommendation issued by Judge Mann on February 22,
2013, (i) granting Mr. Cooper’s motion to withdraw from
representing Mr. Juarez and (ii) recommending that the court
dismiss Mr. Juarez’s claims for lack of prosecution pursuant to
Federal Rule of Civil Procedure 41(b).

(ECF No. 59, Report and

Recommendation, dated 2/22/2013 (“R&R”), at 2-3.)
As explicitly noted at the end of the Report and
Recommendation, any objections to the Report and Recommendation
were to be filed on or before March 11, 2013.

(R&R at 3.)

Judge Mann’s Report and Recommendation further directed the
clerk of court to serve a copy of the Report and Recommendation,
along with a Spanish-language translation, upon Mr. Juarez by
Federal Express at his last known address of record.

(Id.)

The

clerk of court served Mr. Juarez with a copy of the Report and
4

Recommendation, along with a Spanish-language translation, as
ordered by Judge Mann.

(See docket entry dated 2/22/2013

(clerk’s notation of service).)

The period for filing

objections has now expired, see Fed. R. Civ. Proc. 6(d), and no
objections to Magistrate Judge Mann’s Report and Recommendation
have been filed by Mr. Juarez.
In reviewing a Report and Recommendation, the district
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C).

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Where no objection to the Report and

Recommendation has been filed, the district court “need only
satisfy itself that that there is no clear error on the face of
the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985)).
Upon review of Magistrate Judge Mann’s thorough and
well-reasoned Report and Recommendation and the record in this
case, and considering that no party has objected to any of
Magistrate Judge Mann’s recommendations, the court finds no
clear error in the Report and Recommendation and hereby affirms
and adopts it as the opinion of the court.
CONCLUSION
For the foregoing reasons, plaintiff Omar Juarez’s
claims are hereby dismissed, with prejudice, for lack of
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prosecution pursuant to Federal Rule of Civil Procedure 41(b).
The Clerk of the Court is respectfully requested to enter
judgment in favor of defendants and against Mr. Juarez.
Additionally, the Clerk of the Court is respectfully
requested to serve a copy of the Judgment, this Memorandum and
Order, and an appeals packet upon Mr. Juarez at his last known
address, along with Spanish-language translations of all these
enumerated documents, and to note service on the docket.
Plaintiff Omar Juarez may file a notice of appeal of this
Memorandum and Order within thirty (30) days of the date of the
entry of the judgment, as specified in the appeals packet.

SO ORDERED.
Dated:

May 16, 2013
Brooklyn, New York
___/s/______ _____
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York

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