Balderramo v. Taxi Tours Inc. et al
Filing
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OPINION AND ORDER re: 58 MOTION to Dismiss for Lack of Prosecution . filed by Taxi Tours Inc.. For the reasons set forth above, Taxi Tours' motion to dismiss is DENIED, without prejudice. The parties are directed to appear for a subsequent conference on November 15, 2019 at 3:30 P.M. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 58. It is SO ORDERED. (Status Conference set for 11/15/2019 at 03:30 PM before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 10/11/2019) (kv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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VICTOR H. ALVARADO BALDERRAMO,
:
individually and on behalf of all other persons
:
similarly situated,
:
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Plaintiff,
:
:
- against :
:
TAXI TOURS INC., d/b/a BIG TAXI TOURS;
:
CHRISTOPHER PRESTON, jointly and severally; :
MICHAEL ALTMAN, jointly and severally; and
:
HERNANDO CASTRO, jointly and severally,
:
:
Defendants.
:
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OPINION AND ORDER
15 Civ. 2181 (ER)
RAMOS, D.J.:
Victor H. Alvarado Balderramo (“Plaintiff” or “Balderramo”), filed this class action
pursuant to the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq., and New
York labor laws, against Taxi Tours Inc., doing business as Big Taxi Tours (“Taxi Tours”), and
jointly and severally against its owners, shareholders, officers, or managers, Christopher Preston
(“Preston,” effectively terminated on December 28, 2015), Michael Altman (“Altman”), and
Hernando Castro (“Castro”) (collectively, “Defendants”). Balderramo claims that he was
employed by the Defendants as a tour bus operator and that, inter alia, they failed to pay him
minimum and overtime wage. The Court granted Balderramo’s motion for leave to conditionally
certify the collective action, but he has taken no substantive action in the case in approximately
eighteen months. Accordingly, Taxi Tours filed a motion for failure to prosecute.
For the reasons set forth below, the Court DENIES Defendants’ motion for failure to
prosecute, without prejudice.
I.
Factual Background
Balderramo initiated the instant case over four years ago on March 23, 2015, purportedly
on behalf of himself and others similarly situated. Doc. 1. Balderramo worked as a tour bus
operator for Defendants from approximately July 2010 to April 2014, except between
approximately August 2013 and February 2014. Doc. 3 ¶ 21; Doc. 40 ¶ 3. According to
Balderramo, Defendants employed between eight to ten other tour bus drivers who worked
similar hours and were similarly unpaid and underpaid for overtime during the relevant time
period. Doc. 40 ¶ 8. He further alleges that he and the other tour bus drivers were uninformed of
their minimum wage rights during this time. Doc. 3 ¶ 29.
Taxi Tours is a tour operator business in New York City. Doc. 3 ¶ 13. Altman, Castro,
and Preston were allegedly owners, shareholders, officers, or managers of Taxi Tours and
exercised substantial control over their employees’ functions, hours, and wages. Id. ¶ 14–19.
However, Preston was not affiliated with Taxi Tours prior to November 21, 2014. Doc. 68 ¶ 6.
On December 28, 2015, Balderramo amended his complaint, removing Preston as a defendant.
Doc. 3. The Court presumes familiarity with the remaining facts of the case pursuant to its June
9, 2017 Opinion and Order. Doc. 50.
II.
Procedural Background
On October 14, 2016, nineteen months after filing his initial complaint, Balderramo
moved to conditionally certify the collective action, based on the FLSA claims only, and for
permission to send notice of the litigation to the proposed plaintiffs. Doc. 39. Pursuant to
FLSA, an individual may file suit against an employer on behalf of himself and others similarly
situated who give consent in writing to become party plaintiffs pursuant to labor law 29 U.S.C. §
216(b). Doc. 50 at 4. District courts have discretion to facilitate collective actions by
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authorizing notice to potential plaintiffs informing them of the pendency of the action and their
opportunity to opt in as represented plaintiffs. Id. (citing Mark v. Gawker Media LLC, No. 13
Civ. 4347 (AJN), 2014 WL 4058417, at *2 (S.D.N.Y. Aug. 15, 2014)).
On November 4, 2016, Taxi Tours opposed the motion to certify the class and filed a
cross motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. Docs. 42, 43. Taxi Tours argued that the potential opt-in plaintiffs’ claims were
time-barred because they did not submit a written consent to opt in before the end of the alleged
FLSA three-year statute of limitations period. Id. at 9. Balderramo countered that the claims
should be equitably tolled to approximately March 2015 for the opt-in plaintiffs because
Defendants failed to post the required notice of employee rights under FLSA and so the potential
plaintiffs were uninformed of their rights. Id. at 10. Balderramo filed his written consent to
become a party plaintiff on November 18, 2016. Doc. 44. As of the date of this Opinion and
Order, no one else has opted into the action.
On June 9, 2017, the Court denied judgment on the pleadings and instead granted
Balderramo’s request to certify a FLSA collective action constituting all tour bus operators
employed by Taxi Tours within the three years prior to Balderramo filing the complaint on
March 23, 2015. Doc. 50. The Court conditionally certified the class, authorized notice to
potential opt-in plaintiffs, and gave Balderramo an opportunity to show that the collective action
claims were not time-barred. Id. at 11.
However, despite this decision in his favor, Balderramo has not taken any substantive
action in the docket since November 21, 2016, when he responded to the judgment on the
pleadings and class certification motions. Docs. 47, 48. In December 2017, approximately six
months after the Court’s June 9, 2017 Opinion and Order, Taxi Tours reached out to Balderramo
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and noted that they had not heard from him since then. Doc. 60, Ex. A. They questioned his
interest in continuing to prosecute the case given the lengthy six-month silence. Id. The parties
then conferred over the telephone and memorialized their conversation by email; they agreed that
Taxi Tours would proffer certain documents for class discovery and discussed the terms of the
notice Balderramo was to send to the purported class. Id.
On January 4, 2018, Balderramo sent Taxi Tours a proposed notice, which Taxi Tours
sent back with redlined comments on January 12, 2018. Id. But Balderramo did not respond.
Six months later, on July 13, 2018, Taxi Tours reached out to him again asking whether he
planned to continue prosecuting the case and requesting an extension on the discovery
documents. Doc. 71, Ex. A. 1 On June 3, 2019, after approximately eighteen months of silence
from Balderramo, Taxi Tours asked the Court to hold a conference so they could request leave to
file a motion to dismiss for failure to prosecute. Doc. 55. Balderramo did not respond to the
letter motion but sent counsel to contest dismissal during the July 10, 2019 conference.
Balderramo’s counsel did not provide a reason for such a long delay in case activity but asked
for time to continue the case. Taxi Tours filed the motion to dismiss on August 9, 2019,
pursuant to Federal Rule of Civil Procedure 41(b). Doc. 58.
III.
Analysis
Rule 41(b) of the Federal Rules of Civil Procedure states that a defendant may move to
dismiss an action or any claim against it “[i]f the plaintiff fails to prosecute or to comply with
these rules or a court order.” Fed. R. Civ. P. 41(b). Alternatively, a district court may sua sponte
dismiss an action for lack of prosecution pursuant to Rule 41(b). Minnette v. Time Warner, 997
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Balderramo did not respond to Taxi Tours’ email until September 6, 2019, after Defendants sought to dismiss the
case for failure to prosecute. At that time, evincing no small amount of chutzpa, he also asked the Court for a
conference in contemplation of filing a motion for sanctions against Taxi Tours pursuant to Rule 37(d)(A)(ii) for
failing to respond to discovery demands. Doc. 71, Ex. A; see also Doc. 61.
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F.2d 1023, 1027 (2d Cir. 1993). Unless the dismissal order states otherwise, a dismissal under
Rule 41(b) operates as an adjudication on the merits. Fed. R. Civ. P. 41(b). District courts have
discretion to effect dismissal pursuant to Rule 41(b). See Nita v. Connecticut Dep’t of Envtl.
Protection, 16 F.3d 482, 485 (2d Cir. 1994); Alvarez v. Simmons Mkt. Research Bureau, Inc.,
839 F.2d 930, 932 (2d Cir. 1988)). The Second Circuit has cautioned, however, that the
discretion to dismiss a case under Rule 41(b) should be exercised sparingly and only when the
district judge is “sure of the impotence of lesser sanctions.” Chira v. Lockheed Aircraft Corp.,
634 F.2d 664, 665 (2d Cir. 1980); accord Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009).
A failure to prosecute warranting Rule 41(b) dismissal can be evidenced by (1) an action
lying dormant with no significant activity to move it forward, or (2) in a pattern of dilatory
tactics, for example, “groundless motions, repeated requests for continuances or persistent late
filings of court ordered papers.’” Burgess v. Goodman, No. 18-CV-6584 (VEC), 2019 WL
719199, at *2 (S.D.N.Y. Feb. 20, 2019) (citation omitted). To determine whether to dismiss a
case under Rule 41(b) for failure to prosecute, district courts employ a balancing test that
considers the following five factors: (1) the duration of the plaintiff’s failures; (2) whether
plaintiff had received notice that further delays would result in dismissal; (3) whether the
defendant is likely to be prejudiced by further delay; (4) whether the district judge has taken care
to strike the balance between alleviating court calendar congestion and protecting a party’s right
to due process and a fair chance to be heard; and (5) whether the district judge had adequately
assessed the efficacy of lesser sanctions. See, e.g., U.S. ex rel. Drake v. Norden Sys., Inc., 375
F.3d 248, 254 (2d Cir. 2004).
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1. Duration of Plaintiff’s Failures
First, a delay of merely a matter of months may warrant dismissal. Lyell Theatre Corp. v.
Lowes Corp., 682 F.2d 37, 42–43 (2d Cir. 1982); see also Chira, 634 F.2d at 666 (holding failure
to take any action during six-month period justified dismissal under Rule 41(b)). Balderramo’s
last substantive action in the case, prior to attending the July 10, 2019 conference, was to email a
proposed notice for the purported class to Taxi Tours on January 4, 2018. Doc. 60, Ex. A. Taxi
Tours returned a redlined version to him on January 12, 2018, but Balderramo did not respond
until approximately nineteen months later, on September 6, 2019, where he said he had no
objections to Taxi Tours’ revisions. Doc. 60, Ex. A. See West v. City of New York, 130 F.R.D.
522, 525 (S.D.N.Y. 1990) (collecting cases where courts dismissed cases due to long periods of
inactivity, ranging from six months to one year).
Balderramo contends that the primary reason for his delay in the case is Taxi Tours’
failure to respond to the December 21, 2017 discovery demands. Doc. 69, 7. However, this
argument is non sequitur and does not excuse Balderramo’s inactivity, as it is, he, who had a
duty to advance his case diligently. Moreno v. Jeung, 309 F.R.D. 188, 190 (S.D.N.Y. 2015)
(citing Fed. R. Civ. P. 41(b)); see also M & H Cosmetics, Inc. v. Alfin Fragrances, Inc., 102
F.R.D. 265, 267 (E.D.N.Y. 1984) (“The plaintiff is the party instituting the suit and therefore is
expected to pursue his interests by prosecuting it. The defendant cannot be expected to provide
the impetus to push the action forward.”).
Balderramo’s long period of inactivity is especially egregious as the Court noted in its
June 9, 2017 Opinion and Order that equitable tolling claims would play a prominent role in the
case. Doc. 50, 12. Balderramo had specifically challenged Taxi Tours’ argument about the
statute of limitations bar by alleging that the potential opt-in plaintiffs were uninformed about
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their rights under FLSA and of their opportunity to sue. Id. at 10. The Court authorized such
notice and conditionally certified the class to give Balderramo time to prove that was the case.
Id. at 13. And yet, as of the date of this Opinion and Order, Balderramo has failed to both notify
the potential class members and diligently pursue development of the factual record regarding
the equitable tolling issue. Thus, not only has Balderramo failed in his duty as a plaintiff to
diligently prosecute his case, but he has also withheld such an opportunity from the potential optin plaintiffs—whom he purported to bring the case on behalf of—by not providing them with
notice. Doc. 3 ¶ 1.
2. Prior notice of dismissal
Second, notice is not required when plaintiff had knowledge of the consequences of his
actions in regard to failure to prosecute the case. The Supreme Court and this Circuit have held
that when the circumstances of the case provided a plaintiff with a warning of dismissal, then a
prior notice or hearing was not required. See Link v. Wabash R. Co., 370 U.S. 626, 633 (1962)
(holding district courts may dismiss complaint for failure to prosecute without affording notice
or adversary hearing to plaintiff when circumstances make such action appropriate); Lyell, 682
F.2d at 42 (similarly holding lack of notice does not necessarily render dismissal void, rather,
adequacy of notice or hearing turns on plaintiff’s knowledge of consequences of his actions). In
Link, the Supreme Court sua sponte dismissed the action for failure to prosecute when plaintiff’s
counsel failed to appear for a pre-trial conference and failed to indicate a reasonable excuse for
his nonappearance. Link, 370 U.S. at 628–29. In Lyell, the plaintiff received three warnings that
dismissal was possible, and defendant filed motions to dismiss, including for failure to prosecute,
for which the court held hearings on. Lyell, 682 F.2d at 42.
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Here, the record does not show circumstances that would have clearly notified
Balderramo the consequences of his actions would result in dismissal, such as to make advance
notice and hearing unnecessary. Cf. United States v. Seltzer, 127 F. Supp. 2d 172, 174 (E.D.N.Y.
2000) (holding circumstances provided adequate knowledge when court warned plaintiff about
sanctions for being late to hearing). Taxi Tours’ reliance on a Southern District of New York
case where the plaintiff “halted” the litigation for five months is unavailing because said plaintiff
was on notice of the possible sanction of dismissal. Osborn v Montgomery, No. 15 CV 9730
(NSR) (LMS), 2018 U.S. Dist. LEXIS 60985, at *7–8 (S.D.N.Y. Apr. 6, 2018). Balderramo’s
first warning of dismissal was Taxi Tours’ letter motion for a conference to dismiss the action on
June 3, 2019, and such notice does not apply retroactively to the prior period of inactivity. Doc.
55. In July 2019, Balderramo sent counsel to the pre-motion conference on the matter and
expressed his desire to continue litigating the case. Accordingly, this factor weighs against
dismissal.
3. Prejudice to Defendant
Third, prejudice to defendants resulting from unreasonable delays can be fairly presumed
as a matter of law. Lyell, 682 F.2d at 43 (fifteen-month delay); accord Chira, 634 F.2d at 666–
68 (six-month delay); but see Drake, 375 F.3d at 256–57 (holding presumption of prejudice is
rebuttable depending on degree to which delay was lengthy and inexcusable) (citing LeSane v.
Hall’s Sec. Analyst, Inc., 239 F.3d 206, 210 (2d Cir. 2001)). The LeSane court held that despite
a presumption of prejudice, when there is no evidence in the record that plaintiff’s delay caused
any particular, or especially burdensome, prejudice to defendants beyond the delay itself, then
this factor holds less weight. LeSane, 239 F.3d at 210. Here, Defendants generally allege that
recollections are not as strong and witnesses may no longer be available when there are long
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delays in a case, but do not provide any details of how they were prejudiced. Doc. 73, 8. Thus,
this factor weighs in favor of dismissal only slightly.
4. Balancing of Plaintiff’s Due Process Rights and Court’s Scheduling Interests
Fourth, under the circumstances, the Court’s need to alleviate congestion does not
outweigh Balderramo’s due process rights. “It is not the function of this Court to chase dilatory
plaintiffs while other litigants in this district seek access to the courts.” Hibbert v. Apfel, No. 99
CV 4246 (SAS), 2000 WL 977683, at *3 (S.D.N.Y. July 17, 2000). However, the Second
Circuit has held that there must be compelling evidence of an extreme effect on court congestion
before a litigant’s right to be heard is subrogated. Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.
1996). No such evidence was presented here. Additionally, where, as here, plaintiff’s failure to
prosecute was silent and unobtrusive, rather than vexatious and burdensome such as by
swamping the court with irrelevant or obstructionist filings, dismissal due to the court’s docket is
not warranted. Baptiste v. Sommers, 768 F.3d 212, 218 (2d Cir. 2014) (citing LeSane, 239 F.3d
at 210). Accordingly, this factor weighs against dismissal.
5. Whether Lesser Sanctions Will Suffice
Fifth, here, the availability of lesser sanctions than dismissal with prejudice weigh against
dismissal. A federal district court’s authority to dismiss a plaintiff’s action with prejudice
because of failure to prosecute cannot be doubted. Link, 370 U.S. at 629–30; see, e.g., Watkins
v. Matarazzo, 2015 U.S. Dist. LEXIS 178636, at *28–29 (S.D.N.Y. Sept. 22, 2015) (holding
court did not believe lesser sanctions would effectively ensure prosecution where plaintiff had
disobeyed court’s discovery order). However, the sound exercise of discretion requires judges to
consider and use lesser sanctions than dismissal when appropriate. Schenck v. Bear, Stearns &
Co., 583 F.2d 58, 60 (2d Cir. 1978). Imposing a lesser sanction, such as an order requiring
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