Biagoiotti et al v. Home Depot USA, Inc.
Filing
129
DECISION and ORDER granting in part and denying in part 106 Motion to Dismiss. Defendant's motion to dismiss is GRANTED in part and DENIED in part. The motion is granted in that the claims brought by John Marine are dismissed without prejudice pursuant to Rule 41(b) for failure to prosecute. The motion is DENIED in all other respects. Signed by Senior Judge Thomas J. McAvoy on 12/17/2013. (dpk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
ARTHUR R. AMASH, et al.,
Plaintiffs,
v.
1:12-cv-837
HOME DEPOT U.S.A., INC.,
Defendant.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
Plaintiffs commenced this action asserting claims for unpaid overtime under the
Fair Labor Standards Act ("FLSA"), 29 U.S.C. §201 et seq., and New York Labor Law,
Article 19, §§ 650 et seq. See 2nd Am. Compl., dkt. # 43. Defendant Home Depot U.S.A.,
Inc. (“Home Depot” or “Defendant”) moves pursuant to Federal Rules of Civil Procedure
37(b) and 41(b) to dismiss the Complaint as it pertains to Plaintiffs Theodore Biagiootti,
John Marine, and Robert Yuskauskas for failure to comply with Magistrate Judge’s
Treece’s July 2, 2013 Discovery Order (dkt. # 104)1 and for failure to prosecute.
1
This was provided in Text Order format indicating:
ORDER granting 101, Home Depot's Letter Request, seeking a conference to address outstanding
discovery issues. Those discovery issues are identified in the Letter Request. At the Court's
direction, Plaintiffs filed a Response. Dkt. No. 102 . On July 2, 2013, a telephonic Discovery Hearing
was held on the Record. During the Hearing, the Court made several Rulings which are incorporated
by reference into this Text Order. Without specifically summarizing each and every Ruling, the Court
notes that individual Plaintiffs have specific responses and production that must be either provided or
supplemented. All of the directed responses shall be served by July 15, 2013. Should a Plaintiff fail to
respond accordingly, Home Depot may file a Motion to Compel/Sanction without further permission
(continued...)
1
Defendant also seeks to compel “more responsive document responses from the
remaining Plaintiffs....”
Plaintiffs’ counsel indicates that John Marine has not responded to numerous
requests from counsel’s office and, therefore, counsel “cannot in good conscious
represent to the Court that [Marine] wishes to proceed in this matter.” Counsel further
indicates that he “does not object to Defendant’s motion to dismiss [Marine’s] Complaint.”
Accordingly, all claims brought by John Marine are dismissed without prejudice pursuant
to Rule 41(b).
The claims brought by Theodore Biagiotti and Robert Yuskaukus have been
dismissed by prior Orders. Therefore, Defendant’s motion with regard to Biagiotti and
Yuskaukus is denied as moot.
To the extent that Defendant seeks to compel “more responsive document
responses from the remaining Plaintiffs..., ” the issue should be directed to Magistrate
Judge Treece in the first instance. Thus, the motion in this regard is denied without
prejudice to renewal before Magistrate Judge Treece.
CONCLUSION
Defendant’s motion to dismiss pursuant to Federal Rules of Civil Procedure 37(b)
and 41(b)[dkt. # 106] is GRANTED in part and DENIED in part. The motion is granted in
that the claims brought by John Marine are dismissed without prejudice pursuant to Rule
41(b) for failure to prosecute. The motion is denied in all other respects as set forth above.
1
(...continued)
from the Court. SO ORDERED. Signed by Magistrate Judge Randolph F. Treece on 7/2/2013.
(Treece, Randolph) (Entered: 07/02/2013).
2
IT IS SO ORDERED.
Dated:December 17, 2013
3
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