Rodriguez v. Cavala Cafe Corp., et al

Filing 14

ORDER. For the reasons provided above, Plaintiff's claims shall be dismissed for failure to prosecute. The Clerk of the Court is instructed to close the case. To the extent the parties did reach an out-of-court settlement, this settlement was not approved by this Court as required by Federal Rule of Civil Procedure 41 and Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015). So ordered. (Signed by Judge Alison J. Nathan on 8/22/2016) (rjm)

USDCSDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DOCU1\1ENT

ELECTRONICALLY FILED
DOC#·

-

DATE FILED:

Katty Rodriguez,

-rs-

_AUG 22ZOt

Plaintiff,
14-cv-8907 (AJN)

-vORDER
Cavala Cafe Corp., et al.,
Defendant.

ALISON J. NATHAN, DistrictJudge:
On September 8, 2015, the parties advised the Court that a settlement in this FLSA action
had been reached. Dkt No. 10. The Court then ordered the parties to submit a settlement
agreement and a joint letter explaining why the settlement should be approved. Dkt No. 12.
Although the parties were subsequently given additional time to file this information, they failed
to do so despite an express warning that such failure would result in the dismissal of this action.
Dkt. No. 13. The Court hereby dismisses the claims for failure to prosecute.
I.

BACKGROUND
On November 7, 2014, Plaintiff Katty Rodriguez filed a complaint against Defendants

Cavala Cafe Corp., Johnny Lopez, and Miguel Acosta, Jr., seeking damages for violations of the
Fair Labor Standards Act ("FLSA") and various New York labor laws. Dkt No. 1. The docket
did not reflect a service of the summons and complaint in a timely manner, so the Court issued
an order requiring Plaintiff to communicate whether service had occurred. Dkt No. 4. This
order explicitly warned that the case would be dismissed if Plaintiff failed to comply. Dkt No. 4.
The execution of the summons and the complaint was eventually sorted out, and the Court held
an initial pretrial conference on July 17, 2015. Dkt Nos. 5-9.

1

At the initial pretrial conference, the Court ordered the parties to submit a joint status
letter by August 17, 2015. Dkt No. 9. No such letter was filed, so the Court ordered the parties
to submit the letter by August 31, 2015. Dkt No. 9. Again, the parties failed to respond. On
September 4, 2015, the Court ordered Plaintiff to either move for default judgment or file a letter
updating the court on the status of the case by September 24, 2015. Dkt. 11. This order stated
that failure to submit the requested letter would result in dismissal of the action for failure to
prosecute. Dkt. 11.
On September 8, 2015, Plaintiffs counsel submitted a letter informing the Court that a
settlement had been reached in principle. Dkt. 10. The Court responded with an order
acknowledging receipt of this letter. Dkt No. 12. Because this is a FLSA action in which the
Court must scrutinize the fairness of the agreement, the Court also ordered the parties to submit
the settlement agreement and a joint letter explaining why settlement should be approved. Dkt
No. 12; see Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015). The
parties failed to submit this information. On October 13, 2015, the Court sua sponte extended
the time to provide this information to October 20, 2015. Dkt No. 13. The Court explicitly
warned that a failure to provide a filing by this date would result in the case being dismissed for
a failure to prosecute. Dkt No. 13. As of August 22, 2016, the Court has not received any
communication from either party in response to the Court's order.

II.

LEGAL STANDARD
"Rule 41 (b) of the Federal Rules of Civil Procedure authorizes the district court to

dismiss an action '[i]f the plaintiff fails to prosecute or to comply with [the] rules or a court
order."' Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014). "A district court considering a
Rule 41(b) dismissal must weigh five factors: '(1) the duration of the plaintiffs failure to comply

2

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 plaintiffs
interest in receiving a fair chance to be heard, and (5) whether the judge has adequately
considered a sanction less drastic than dismissal."' Id. (quoting Lucas v. Miles, 84 F.3d 532, 535
(2d Cir. 1996)).

III.

DISCUSSION
Applying these five factors, the Court concludes that dismissal pursuant to Rule 41 (b) for

failure to prosecute is appropriate.
First, the duration of Plaintiffs failure to comply with the Court's orders is quite long.
Over eleven months have passed since the Court first ordered the parties to submit the settlement
agreement and joint letter. Dkt. 12. Over ten months have passed since the Court sua sponte
extended the time for the parties to provide this information. Dkt. 13. The Court has not
received any information from Plaintiff since September 8, 2015, despite these two subsequent
orders requiring the parties to provide the settlement agreement and a joint letter. Dkt Nos. 10,
12, 13. Other courts presented with similar, and sometimes even lesser, lengths of delay have
dismissed the claims for failure to prosecute. See Chira v. Lockheed Aircrafi Corp., 634 F.2d
664 (2d Cir. 1980) (six month delay justified dismissal); Antonio v. Beckford, No. 05-CV-2225
(KMK), 2006 WL 2819598, at *2 (S.D.N. Y. Sept. 29, 2006) (noting that"[ c ]ourts have
frequently found that delays of less than one year are unreasonable" in the failure to prosecute
context); Marcial v. Deperio, No. 02-CV-6574, 2006 WL 2769923, at *2 (W.D.N.Y. Aug. 1,
2006) (dismissing case when "plaintiffha[d] not pursued th[e] action for more than six months");

Myvett v. Rosato, No. 03 Civ.2379 LAP GWG, 2004 WL 1354254, *2 (S.D.N.Y. June 16, 2004)

3

("That nearly a year has elapsed since Myvett took any steps to prosecute this case, such as by
responding to outstanding discovery requests, strongly counsels in favor of dismissal.")
Second, Plaintiff was on notice that failure to comply would result in dismissal. The
Court's October 13, 2015 order explicitly stated that "[i]n the absence of any filing by [October
20, 2015], the case will be dismissed for failure to prosecute." Dkt No. 13. No filing of any kind
has been submitted since that order.
Third, the prejudice to the Defendants is not insubstantial. One significant purpose of a
settlement agreement is to.resolve a case quickly to avoid further proceedings and associated
expenses. By failing to respond to the Court's September and October orders, Plaintiff has failed
to ensure the approval of the settlement and thereby has prevented Defendants from obtaining
this benefit of settlement.
Fourth, the Court's interest in balancing its docket outweighs Plaintiff's interest in this
case in receiving a fair chance to be heard. Plaintiff has repeatedly failed to comply with the
Court's orders, which has required the Court to issue additional orders prompting the Plaintiff to
comply. This case continues to sit on the Court's docket even though the parties do not appear to
have an interest in having their settlement approved. Furthermore, Plaintiff has repeatedly been
provided an opportunity to be heard; whenever Plaintiff has missed a deadline to file a response
to a Court order, the Court has sua sponte provided additional time for a response. See Dkt No.
4,9,11,13.
Finally, the Court is unaware of a how a lesser sanction would prompt Plaintiff to
comply. The Corni has not heard from Plaintiff since last September. The fact that the Court has
on three separate occasions issued an order warning Plaintiff that failure to respond might result
in a dismissal suggests that the less drastic sanction of further warnings is not adequate.

4

Furthermore, Plaintiff is counseled, and therefore the more protective standards for pro se
litigants do not apply. Cf Baptiste, 768 F.3d at 217 ("[A] prose litigant's claim should be
dismissed for failure to prosecute 'only when the circumstances are sufficiently extreme."').
Other courts have dismissed for failure to prosecute under similar circumstances. See,
e.g., Lyles v. Commercial Lovelace Motor Freight, Inc., 684 F.2d 501 (7th Cir. 1982) (dismissal
appropriate in view of nine months of inaction following notice of intent to settle); Gugliara v.
Jones, No. 08 CV 909(NGG)(LB), 2010 WL 3257765 (E.D.N.Y. July 12, 2010) (dismissal
appropriate after plaintiff failed to execute settlement agreement and failed to respond to followup court orders); Yang v. Greyhound Lines, Inc., No. 07 Civ. 6499 (CM), 2008 WL 3126188
(S.D.N.Y. July 14, 2008) (dismissal appropriate after plaintiff repeatedly refused to return
settlement documents to defendant's counsel); Cho v. Tomczyk, No. 05-CV-5570 (JFB)(JMA),
2007 WL 3254294 (E.D.N.Y. Nov. 2, 2007) (dismissal appropriate after plaintiff failed to
execute settlement documents and failed to respond to the court's follow-up order).

IV.

CONCLUSION
For the reasons provided above, Plaintiff's claims shall be dismissed for failure to

prosecute. The Clerk of the Court is instructed to close the case.
To the extent the parties did reach an out-of-court settlement, this settlement was not
approved by this Court as required by Federal Rule of Civil Procedure 41 and Cheeks v. Freeport
Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015).
SO ORDERED.
Dated:

August~~ 2016
New York, New York

United States District Judge

5