Huang v. Lin et al
ORDER: Pursuant to the annexed Opinion and Order, this action is dismissed without prejudice under Federal Rule of Civil Procedure 41(b). Ordered by Magistrate Judge Peggy Kuo on 3/12/2018. (Copy of Opinion and Order mailed to pro se Plaintiff.) (Syed, Sofie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SHAO YU LIN, MONICA WANG, WALIND
HOME DESIGN INC., and WALAND
Peggy Kuo, United States Magistrate Judge:
OPINION AND ORDER
Plaintiff Dan Huang filed this action on December 10, 2014, alleging assault and battery, as
well as violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; the Fair
Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201 et seq.; New York Labor Law (“NYLL”)
§§ 650 et seq.; New York Codes, Rules, and Regulations; New York State Human Rights Law; and
New York City Human Rights Law. (See Compl., Dkt. 1; Am. Compl., Dkt. 48.) Plaintiff alleged in
the Amended Complaint that Defendants Walind Home Design Inc., Waland Trading Corp.,
Monica Wang, and Shao Yu Lin assaulted her, subjected her to sexual harassment and
discrimination, created a hostile work environment, and failed to pay her minimum wage, overtime
pay, and spread-of-hours premiums. (Id.)
Because Plaintiff has failed to prosecute the action, the action is dismissed without prejudice
pursuant to Federal Rule of Civil Procedure 41(b).
Plaintiff worked as a salesperson for Defendants from late 2013 to mid-2014. (See Am.
Compl.) She asserted in the Amended Complaint that over the course of her employment,
Defendants sexually harassed her and subjected her to “a hostile and intimidating work
environment” based on her gender; the alleged harassment culminated in a violent incident in which
Defendant Lin struck her in the face, resulting in her hospitalization. (Id. ¶¶ 26-40.) Plaintiff
subsequently obtained a temporary restraining order against Defendant Lin. (Id. ¶ 38.)
Plaintiff brought claims for hostile work environment under Title VII and New York State
and City Human Rights Law, negligent and intentional infliction of emotional distress, and assault
and battery. (Id. at 7-10.) She also brought claims under the FLSA and NYLL for failure to pay
minimum wage, overtime, and spread-of-hours pay, and pay rate and record keeping violations. (Id.
at 10-14.) Defendants answered the Complaint in January 2015, and an initial conference was held
before Magistrate Judge Viktor Pohorelsky in March 2015. (See Answer, Dkt. 9; March 5, 2015
Mins., Dkt. 13.) Plaintiff’s counsel filed a motion to withdraw in May 2015, which the Court
granted, and Plaintiff’s incoming counsel noticed their appearances in July 2015. (See Dkt. 17; June
26, 2015 Mins., Dkt. 19; Dkts. 20-22.) In October 2015, the matter was reassigned to the
The parties engaged in discovery throughout 2015 and 2016, filing discovery motions and
appearing in conferences before the Court. On April 27, 2017, Plaintiff’s counsel informed the
Court that they had been unable to contact Plaintiff since November 2016 “[d]espite multiple
attempts, including the use of a private investigator’s services.” (See April 27, 2017 Status Report,
Dkt. 59.) Counsel requested that the Court give Plaintiff until May 26, 2017 to contact her counsel,
advising the Court that they would file a motion to withdraw if she failed to do so. (Id.) The Court
directed the parties to file a joint status report by May 26, 2017 addressing “whether Plaintiff’s
counsel has made contact with Plaintiff.” (May 1, 2017 Order.) In the subsequent status report,
Plaintiff’s counsel confirmed their “continued failure to make any contact with Plaintiff, despite
multiple efforts and various methods,” and requested an extension until June 9, 2017 to submit a
motion to withdraw as counsel. (May 26, 2017 Status Report, Dkt. 61.) The Court granted the
request. (See May 30, 2017 Order.) On June 9, 2017, the parties consented to the undersigned’s
jurisdiction and Plaintiff’s counsel filed the motion to withdraw. The Court ordered Plaintiff to
attend a hearing on the motion scheduled for June 30, 2017. (See June 9, 2017 Order.)
When Plaintiff failed to appear at the hearing, the Court granted the motion to withdraw,
“finding good cause based on a breakdown in Plaintiff’s attorney-client relationship with [her
counsel].” (June 30, 2017 Mins.) The Court directed Plaintiff “to retain new counsel, who shall
notice their appearance, or [to] file a letter with the Court if [Plaintiff] intends to proceed pro se, by
August 30, 2017.” (Id.) Plaintiff was warned that “[f]ailure to do so may result in a dismissal of this
matter for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).” (Id.) The Court
mailed a copy of the Minute Order to Plaintiff’s address.
No new counsel appeared and Plaintiff did not file any letter with the Court. On September
6, 2017, the Court ordered Plaintiff to file a letter by September 20, 2017 “addressing whether she
has retained counsel or will proceed pro se,” again noting that “[f]ailure to do so may result in a
dismissal of this matter for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).”
(See September 6, 2017 Order.) The Court mailed a copy of the Order to Plaintiff but it was
returned as undeliverable on November 22, 2017. (See Dkt. 66.)
Pursuant to Federal Rule of Civil Procedure 41(b), a defendant may move to dismiss an
action based on the plaintiff’s failure to prosecute. Even where, as here, a defendant has not moved
for dismissal, the Court has “unquestioned” authority to order dismissal on this basis sua sponte.
LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001). In deciding whether to dismiss for
failure to prosecute, courts assess the following factors, none of which is dispositive on its own:
(1) the duration of the plaintiff’s failure to comply with the court order, (2) whether
plaintiff was on notice that failure to comply would result in dismissal, (3) whether the
defendants are likely to be prejudiced by further delay in the proceedings, (4) a
balancing of the court’s interest in managing its docket with the plaintiff’s interest in
receiving a fair chance to be heard, and (5) whether the judge has adequately
considered a sanction less drastic than dismissal.
Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.
1996)). Courts have dismissed for failure to prosecute where, for example, counsel was unable to
contact plaintiff for an extended period or plaintiff failed to comply with court orders. See Kenny v.
Potter, No. 05-CV-1415 (KAM)(JMA), 2011 WL 613346, at *3 (E.D.N.Y. Jan. 24, 2011) (dismissing
after “six months of inactivity on the docket” and where plaintiff’s counsel could not contact plaintiff),
R&R adopted, 2011 WL 646919 (E.D.N.Y. Feb. 11, 2011); Rafaniello v. Travelers Cas. Co., No. 14-CV3385 (NGG)(MDG), 2016 WL 4991544, at *2 (E.D.N.Y. Feb. 22, 2016) (dismissing where plaintiffs
“have not filed any documents or taken any action indicating any interest in pursuing [their] claims”
despite multiple orders), R&R adopted, 2016 WL 5061112 (E.D.N.Y. Sept. 16, 2016); Robinson v. Sposato,
No. 13-CV-3334 (JFB)(WDW), 2014 WL 1699001, at *2 (E.D.N.Y. Apr. 24, 2014) (dismissing where
plaintiff failed to “timely file a new complaint, as directed by the Court, or otherwise communicate[ ]
with the Court”).
The Court finds that dismissal is warranted here. Plaintiff has not responded to her counsel
since November 2016 and has not complied with multiple court orders entered since June 2017; as a
result, the case has lain dormant. The Court repeatedly notified Plaintiff that failure to retain
counsel or proceed pro se could result in dismissal for failure to prosecute. (See June 30, 2017 Mins.;
September 6, 2017 Order.) In light of Plaintiff’s unexplained, prolonged disappearance from this
action, prejudice to Defendants “may be presumed.” Parker v. City of New York, No. 14-CV-7546
(MKB)(MDG), 2015 WL 7566296, at *2 (E.D.N.Y. Nov. 4, 2015), R&R adopted, 2015 WL 7568643
(E.D.N.Y. Nov. 24, 2015). The balance of the Court’s interest in maintaining judicial economy and
Plaintiff’s interest in receiving further opportunities to be heard weighs in favor of dismissal. The
Court finds that lesser sanctions would not be effective in light of these circumstances.
However, the Court dismisses Plaintiff’s claims without prejudice in order to preserve her
right to file a new action in pursuit of her claims.
For the foregoing reasons, this action is dismissed without prejudice.
Dated: Brooklyn, New York
March 12, 2018
United States Magistrate Judge
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