Ruiz v. Citibank, N.A.
Filing
213
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION re 192 : Because the Court has adopted the Report in its entirety, it is hereby ORDERED that the FLSA claims of Brian Araujo, Eliyahu Lederman, Matthew Nyden, Hemrajie Persaud, and Ting Yen Wang are DISMISSED WITH PREJUDICE. (Signed by Judge Katherine Polk Failla on 8/19/2014) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DIGNA RUIZ, et al.,
:
:
Plaintiffs,
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v.
:
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CITIBANK, N.A.,
:
:
Defendant. :
:
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:
FREDERICK L. WINFIELD, et al.,
:
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Plaintiffs,
:
:
v.
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CITIBANK, N.A.,
:
:
Defendant. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
August 19, 2014
DATE FILED: ______________
10 Civ. 5950 (KPF) (RLE)
OPINION AND ORDER
ADOPTING REPORT AND
RECOMMENDATION
10 Civ. 7304 (KPF) (RLE)
KATHERINE POLK FAILLA, District Judge:
Pending before the Court is the Amended Report and Recommendation of
United States Magistrate Judge Ronald L. Ellis, dated June 6, 2014 (the
“Report”). (Dkt. #192). In the Report, Judge Ellis recommends that this Court
dismiss with prejudice the Fair Labor Standards Act (“FLSA”) claims of five
sample Opt-In Plaintiffs who did not comply with the Court’s Order of June 27,
2013 (the “Non-Compliant Opt-In Plaintiffs”). 1 No party has filed an objection
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Judge Ellis’s initial Report and Recommendation recommended dismissal of the NonCompliant Opt-In Plaintiffs’ FLSA claims, but not their New York State law or Employee
Retirement Income Security Act (“ERISA”) claims. (Dkt. #185). After Defendant
to the Report. For the reasons set forth below, the Court adopts the Report in
its entirety.
BACKGROUND
On August 6, 2010, Plaintiff Digna Ruiz filed a nationwide collective
action under the FLSA and a statewide class action under the New York Labor
Law, on behalf of current and former personal bankers employed by Citibank.
(Dkt. #1). 2 On February 9, 2012, the Honorable John G. Koeltl, the United
States District Judge to whom the matter was previously assigned (Dkt. #131),
conditionally certified the FLSA collective action (Dkt. #82). On October 15,
2012, Judge Koeltl granted Plaintiffs’ request to preclude discovery from each
of the Opt-In Plaintiffs, ordering that initial discovery — concerning Plaintiffs’
anticipated motion to certify a class under Federal Rule of Civil Procedure 23
and Defendant’s anticipated motion to decertify the FLSA collective action —
proceed only as to a sample of Opt-In Plaintiffs. (Dkt. #123). The parties
agreed that there would be 30 such sample Plaintiffs, with 15 chosen by
Plaintiffs and 15 chosen by Defendant (Dkt. #144), and that the sample
Plaintiffs’ responses to Defendant’s discovery requests would be due by
February 25, 2013 (Dkt. #133).
Citibank, N.A. (“Citibank” or “Defendant”) pointed out that the ERISA claims had
already been dismissed (Dkt. #186), Judge Ellis issued the Amended Report and
Recommendation (Dkt. #192).
2
This case is proceeding in tandem with Winfield, et al. v. Citibank, N.A., No. 10 Civ.
7304 (KPF) (RLE), filed September 22, 2010. All docket citations are to Ruiz et al. v.
Citibank, N.A., No. 10 Civ. 5950 (KPF) (RLE).
2
On June 27, 2013, the case was reassigned to the undersigned. (Dkt.
#131). By that date, six Opt-In Plaintiffs from the sample group still had not
responded to discovery requests: Brian Araujo, Eliyahu Lederman, Ethel
Lindsey, Matthew Nyden, Hemrajie Persaud, and Ting Yen Wang. (Dkt. #133).
On June 27, 2013, Judge Ellis ordered these Opt-In Plaintiffs to respond to the
outstanding discovery requests by July 29, 2013, and warned that failure to do
so might result in the dismissal of their claims with prejudice. (Id.). On
October 28, 2013, Defendant informed Judge Ellis that only Ethel Lindsey had
subsequently responded, and requested that the remaining five Non-Compliant
Opt-In Plaintiffs be dismissed from the case for failure to comply with the June
27 Order. (Dkt. #144).
Plaintiffs responded on November 6, 2013, that “dismissal as a sanction
for failure to comply with discovery is an extreme sanction, particularly where,
as here, Defendant may select an alternative opt-in plaintiff to serve as a
representative for the sample group.” (Dkt. #148). Plaintiffs then requested
that, if Judge Ellis did grant Defendant’s request, he dismiss only the FLSA
claims and not the state law claims. (Id.).
On June 6, 2014, Judge Ellis issued the Report, recommending that
Defendant’s motion be granted with respect to the FLSA claims of the NonCompliant Opt-In Plaintiffs, and denied with respect to any other claims.
(Report 4). The Report, pursuant to Federal Rule of Civil Procedure 72,
directed the parties to file any written objections to the Report with the Court
within 14 days from the date the Report was issued, and informed the parties
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that the failure to file timely objections would result in a waiver of those
objections and would preclude appellate review. (Report 5). Objections to the
Report were due by June 20, 2014. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
6(a), 72(b)(2). No objections were filed.
DISCUSSION
A.
The Standard of Review
When a district court assesses the report and recommendation of a
magistrate judge, the court “may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1). The court reviews de novo any portions of a magistrate judge’s
report and recommendation to which a party submits a timely objection. Id.
“To accept those portions of the report to which no timely objection has been
made, a district court need only satisfy itself that there is no clear error on the
face of the record.” King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439,
at *4 (S.D.N.Y. July 8, 2009) (internal quotation marks and citation omitted),
aff’d, 453 F. App’x 88 (2d Cir. 2011) (summary order); see also Brown v. Time
Warner Cable, Inc., No. 10 Civ. 8469 (AJN) (RLE), 2012 WL 5878751, at *1
(S.D.N.Y. Nov. 21, 2012); Gomez v. Brown, 655 F. Supp. 2d 332, 341 (S.D.N.Y.
2009).
A party’s failure to object to a report and recommendation, after receiving
clear notice of the consequences of such a failure, operates as a waiver of the
party’s right both to object to the report and recommendation and to obtain
appellate review. See Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992).
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B.
Analysis
1.
The Parties Have Waived Their Right to Object to, and to
Obtain Appellate Review of, the Report
As noted, Judge Ellis informed the parties that they had 14 days after
being served with a copy of the Report to file any objections, and warned that
failure to file a timely objection would result in a waiver of the right to do so,
and a waiver of the right to object on appeal. (Report 5). Having received clear
notice of the consequences of remaining silent, and having neither filed
objections nor requested extensions of time in which to do so, the parties have
waived their right to object to the Report and their right to obtain appellate
review of the Report. See Li Ping Fu v. Pop Art Int’l, Inc., No. 10 Civ. 8562
(DLC), 2011 WL 6092309, at *2 (S.D.N.Y. Dec. 7, 2011) (identifying that “[t]he
parties’ failure to file written objections precludes [appellate] review of [the]
decision,” except as to an issue not addressed in the report and
recommendation); see also United States v. Male Juvenile, 121 F.3d 34, 38-39
(2d Cir. 1997) (same).
2.
The Court Adopts the Report in Its Entirety
The Court has reviewed the Report’s recommendations for clear error,
and finds none. The recommendations are firmly supported by fact and law.
The Court will address each of the recommendations in turn.
a.
Dismissal of the Non-Compliant Opt-In Plaintiffs’ FLSA
Claims Is Appropriate
In determining appropriate sanctions for violation of an order to provide
or permit discovery, a reviewing court will consider, inter alia, “[i] the
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willfulness of the non-compliant party or the reason for noncompliance; [ii] the
efficacy of lesser sanctions; [iii] the duration of the period of noncompliance;
and [iv] whether the non-compliant party had been warned of the
consequences of … noncompliance.” World Wide Polymers, Inc. v. Shinkong
Synthetic Fibers Corp., 694 F.3d 155, 159 (2d Cir. 2012) (alteration in original)
(quoting Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009))
(internal quotation marks omitted). Dismissal with prejudice is a permissible
response to a failure to obey an order to provide or permit discovery. Fed. R.
Civ. P. 37(b)(2)(A)(v). However, this Circuit has “recognized that ‘dismissal with
prejudice is a harsh remedy to be used only in extreme situations, and then
only when a court finds willfulness, bad faith, or any fault by the noncompliant litigant.’” Agiwal, 555 F.3d at 302 (quoting Bobal v. Rensselaer
Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990)).
First, while the Report did not explicitly address the willfulness of the
Non-Compliant Opt-In Plaintiffs or the reason for their non-compliance, the
Court finds ample evidence of willfulness in the record. Although a party’s
simple failure to respond to a discovery request will ordinarily not be deemed
willful, see Saleem v. Corporate Transp. Grp., No. 12 Civ. 8450 (JMF), 2013 WL
6331874, at *4 (S.D.N.Y. Dec. 5, 2013) (declining in the absence of prior
judicial warning to dismiss claims of opt-in FLSA sample plaintiffs who failed to
respond to discovery requests); Ayers v. SGS Control Servs., No. 03 Civ. 9077
(RMB), 2007 WL 646326, at *13 (S.D.N.Y. Feb. 27, 2007) (same), prolonged
failure to respond after specifically being ordered by the court to do so and
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warned of the consequences can render dismissal appropriate, see, e.g.,
Agiwal, 555 F.3d at 303; Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d
Cir. 1994) (“The record in this case reveals [Plaintiff’s] sustained and willful
intransigence in the face of repeated and explicit warnings from the court that
the refusal to comply with court orders … would result in the dismissal of his
action. We see no abuse of discretion in the court’s imposition of that sanction
in the circumstances of the present case.”). The instant litigation does not
present quite so many repeated warnings as in Agiwal or Valentine, but a
substantial amount of time elapsed in which the Non-Compliant Opt-In
Plaintiffs entirely failed to respond to both discovery requests and Judge Ellis’s
June 27, 2013 Order, the latter of which explicitly warned them of the
consequences of failure to participate in discovery. (Report 3-4). Such
deliberate disregard amply demonstrates willfulness.
Second, the Report found that “there are no lesser sanctions than
dismissal that would be effective.” (Report 4). Given the Non-Compliant Opt-In
Plaintiffs’ record of disregard of court orders and of the discovery requests of
Defendant, and the attendant delays in constructing a sample group of
Plaintiffs (id.), this finding was not clearly erroneous.
Third, the Report found that “[t]he Non-Compliant Opt-In Plaintiffs have
been non-responsive to Citibank’s discovery requests for approximately one
year.” (Report 4). It has now been 18 months since discovery was due from
the sample Opt-In Plaintiffs, and over one year since the June 27, 2013 Order
to comply with discovery requests. While there is no precise temporal
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threshold at which a period of noncompliance warrants dismissal, this Circuit’s
precedent supports the Report’s finding that the delay in the instant litigation
merits dismissal. Compare World Wide Polymers, 694 F.3d at 159-60 (finding a
single seven-week delay insufficient for dismissal), with Agiwal, 555 F.3d at
303 (finding failure to respond over a six-month period sufficient).
Fourth, the Report noted that “[t]he Non-Compliant Opt-In Plaintiffs …
have been warned that their failure to respond may result in dismissal of their
claims with prejudice.” (Report 4). This factor has been identified as the
“[m]ost critical[]” of the Agiwal factors, World Wide Polymers, 694 F.3d at 160,
and this Circuit has repeatedly upheld dismissal as an appropriate sanction
where the non-compliant parties were warned of the possibility. See, e.g.,
Valentine, 29 F.3d at 49-50; John B. Hull, Inc. v. Waterbury Petroleum Prods.,
Inc., 845 F.2d 1172, 1177 (2d Cir. 1988).
In addition to the four Agiwal factors discussed above, some courts in
this Circuit have considered whether the party’s non-compliance has caused
prejudice to the opposing party. See, e.g., Saleem, 2013 WL 6331874, at *4;
Gordon v. Kaleida Health, No. 08 Civ. 378S (F), 2013 WL 2250431, at *4-6
(W.D.N.Y. May 21, 2013). While the Report did not explicitly address prejudice
to Defendant, the failure of five Plaintiffs in the sample to respond could cause
prejudice to Defendant under the circumstances. A failure to respond by onesixth of the sample might not ordinarily give rise to a finding of prejudice.
Compare Saleem, 2013 WL 6331874, at *3 (“Defendants fail to show that there
is a material difference between fourteen and sixteen [sample plaintiffs] at this
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stage of the litigation.”), with Gordon, 2013 WL 2250431, at *4-6 (dismissing
FLSA claims where between 58 and 64 of 100 sample plaintiffs failed to
respond). Here, several other Opt-In Plaintiffs within the 30-person sample
group have also failed to respond (see Dkt. #159, 168); therefore, the failure of
the five Plaintiffs at issue here to respond carries a significant risk of prejudice
to Defendant.
Accordingly, the Court finds no clear error in the Report’s conclusion
that dismissal of the Non-Compliant Opt-In Plaintiffs’ FLSA claims is
warranted.
b.
Retention of the Non-Compliant Opt-In Plaintiffs’
New York State Law Claims Is Appropriate
The Report finds that “[i]t would be unjust to dismiss Plaintiffs’ state law
claims when they fail to comply with FLSA discovery while other Plaintiffs who
never opted in to FLSA and never had discovery obligations imposed upon
them through FLSA are not subject to dismissal.” (Report 4). The Report’s
conclusion in this regard is in line with how other courts within the Circuit
have treated similar situations. See Enriquez v. Cherry Hill Mkt. Corp., No. 10
Civ. 5616 (FB) (MDG), 2012 WL 6641650, at *3 (E.D.N.Y. Oct. 22, 2012) (“It
would be unfair to treat the opt-in plaintiffs differently than other employees
who may have chosen not to opt-in to the FLSA action.”), report and
recommendation adopted, No. 10 Civ. 5616 (FB) (MDG), 2012 WL 6626008
(E.D.N.Y. Dec. 20, 2012); see also Johnson v. Wave Comm GR LLC, No. 6:10
Civ. 346 (DNH) (ATB), 2013 WL 992511, at *4 (N.D.N.Y. Jan. 29, 2013)
(allowing plaintiffs whose FLSA claims were dismissed to participate in state
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law class action, if certified), report and recommendation adopted, No. 6:10 Civ.
346 (DNH) (ATB), 2013 WL 992186 (N.D.N.Y. Mar. 13, 2013). Accordingly, this
Court finds no clear error in the Report’s recommendation that Non-Compliant
Opt-In Plaintiffs’ state law claims not be dismissed. (Report 4).
CONCLUSION
Because the Court has adopted the Report in its entirety, it is hereby
ORDERED that the FLSA claims of Brian Araujo, Eliyahu Lederman, Matthew
Nyden, Hemrajie Persaud, and Ting Yen Wang are DISMISSED WITH
PREJUDICE.
SO ORDERED.
Dated: August 19, 2014
New York, New York
_____________________________
KATHERINE POLK FAILLA
United States District Judge
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