Gabino et al v. S&P 72 Corp. et al

Filing 89

ORDER For the foregoing reasons, this action as to Plaintiff Flores is dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). The Clerk of Court is respectfully directed to terminate all pending motions and to close this case. SO ORDERED. Ramon Galindo Flores (on behalf of others similarly situated) and Ramon Galindo Flores (individually) terminated. (Signed by Judge Jennifer L. Rochon on 8/7/2023) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HERNANDEZ GABINO, et al.,
Plaintiffs,
-against-

Case No. 1:16-cv-06541 (JLR)

S&P 72 CORP. D/B/A LIME LEAF and
SUDHIR BHAT,

ORDER

Defendants.

JENNIFER L. ROCHON, United States District Judge:
Plaintiff Ramon Galindo Flores, as well as Hernandez Gabino and Juvenal Gayosso
Rosales (together with Plaintiff Flores, “Plaintiffs”), brought this purported class action against
Defendants for various violations of federal and state wage and hour laws nearly seven years
ago. See ECF No. 1. For the reasons set forth below, the Court dismisses this action without
prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
BACKGROUND
On August 18, 2016, Plaintiffs filed the initial complaint in this action. See ECF No. 1.
On February 6, 2018, the case was stayed due to Defendant Sudhir Bhat’s bankruptcy
proceedings. ECF No. 38. The stay was lifted on February 17, 2023. ECF No. 74. On March
10, 2023, Plaintiffs’ counsel filed a letter seeking to withdraw as counsel for Plaintiff Flores
because they had not been able to contact him for several months since the bankruptcy
proceedings had ended. See ECF No. 79. The Court ordered Plaintiff Flores and counsel to
appear for a conference to address that request on April 4, 2023. ECF No. 80. Counsel served
Plaintiff Flores with that Order, as well as their notice of intent to withdraw, on March 13, 2023
(in both English and Spanish). ECF No. 81. Nevertheless, Plaintiff did not appear at that
conference, and the Court granted counsel’s motion to withdraw for the reasons stated on the

record. ECF No. 86. The Court issued an Order requiring Plaintiff Flores to either retain new
counsel, or file a notice of appearance if he intended to proceed pro se, no later than May 4,
2023. ECF No. 86. Counsel served that Order on Plaintiff Flores on April 4, 2023 (in both
English and Spanish). ECF No. 87. Plaintiff Flores did not file any letter in response to that
Order. On June 5, 2023, the Court sua sponte extended the time for Plaintiff Flores to contact
the Court about his intent to proceed with the litigation to June 30, 2023. ECF No. 88. The
Clerk of Court mailed a copy of that Order to Plaintiff Flores. To date, the Court has not
received any correspondence from Plaintiff Flores.
On March 27, 2023, while counsel’s motion to withdraw was pending, Plaintiffs Gabino
and Rosales filed a stipulation of dismissal with prejudice. ECF No. 83. Accordingly, Plaintiff
Flores is the only remaining Plaintiff in this action.
LEGAL STANDARD
Rule 41(b) of the Federal Rules of Civil Procedure provides that a district court may
dismiss an action if “the plaintiff fails to prosecute or otherwise comply with [the] rules or a
court order.” Fed. R. Civ. P. 41(b). “A district court considering a Rule 41(b) dismissal must
weigh five factors: ‘(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)). “No single factor is generally dispositive.” Id.
Because a Rule 41(b) dismissal is “the harshest of sanctions,” it must “‘be proceeded by
particular procedural prerequisites,’ including ‘notice of the sanctionable conduct, the standard
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by which it will be assessed, and an opportunity to be heard.’” Id. at 217 (quoting Mitchell v.
Lyons Prof’l Servs., Inc., 708 F.3d 463, 467 (2d Cir. 2013)). Furthermore, “a pro se litigant’s
claim should be dismissed for failure to prosecute ‘only when the circumstances are sufficiently
extreme.’” Id. (quoting LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001)).
Under Rule 41(b), a district court may dismiss an action sua sponte for failure to prosecute after
notifying the plaintiff. LeSane, 239 F.3d at 209.
DISCUSSION
Several of the above factors weigh in favor of dismissing this action under Rule 41(b).
First, the duration of Plaintiff’s non-compliance is significant: Plaintiff has not been in
communication with counsel or the Court for nearly six months, since at least February 2023,
when the bankruptcy stay was lifted. See, e.g., Singelton v. City of New York, No. 14-cv-9355
(DLC), 2015 WL 9581781, at *2 (S.D.N.Y. Dec. 30, 2015) (dismissing an action under Rule
41(b) where “[t]he plaintiff has not meaningfully communicated with the defendants for over two
months” and had not communicated with the court in over two months); Portorreal v. City of
New York, 306 F.R.D. 150, 152 (S.D.N.Y. 2015) (dismissing an action for failure to prosecute
where the plaintiff had “repeatedly ignored orders setting deadlines and requiring status letters”
and her response to a court order was “almost two months overdue”); Toliver v. Okvist, No. 10cv-05354, 2014 WL 2535111, at *2 (S.D.N.Y. June 5, 2014) (recommending the dismissal of a
case under Rule 41(b), where the plaintiff’s response to a court order was five weeks overdue),
adopted, 2015 WL 8543103 (S.D.N.Y. Dec. 10, 2015). Second, Plaintiff was on notice that his
failure to comply would result in dismissal: both the Court’s April 4, 2023 Order and the Court’s
June 5, 2023 Order explicitly warned Plaintiff that this action would be dismissed if he failed to
respond. See Mitchell, 708 F.3d at 468 (holding that a district court did not abuse its discretion in
dismissing an action where its “detailed scheduling order clearly stated that future
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noncompliance and tardiness would be met with dismissal”). Third, Plaintiff has been given an
opportunity to be heard; he was given notice of the April 4, 2023 hearing by his prior counsel,
was served by prior counsel with the Court’s order following that hearing – which put him on
notice of a possible dismissal for his failure to appear – and he was again put on notice by the
Court on June 5, 2023. Fourth, this case has been pending for nearly seven years, and the Court
has an obligation “to secure the just, speedy, and inexpensive determination of every action and
proceeding.” Fed. R. Civ. P. 1. In light of these considerations, the Court finds that Plaintiff’s
non-compliance warrants dismissal.
In light of Plaintiff’s current pro se status, the Court must consider whether a “less
drastic” sanction than dismissal with prejudice is appropriate in this case. Baptiste, 768 F.3d at
216. Here, “there is no evidence in the record that plaintiff’s delay . . . caused any particular, or
especially burdensome, prejudice to defendants beyond the delay itself.” LeSane, 239 F.3d at
210. The case was stayed for most of the time this case has spent on the Court’s docket. Under
these circumstances, the Court finds that dismissal without prejudice is a less harsh, and more
appropriate, sanction for Plaintiff’s failure to communicate with the Court or to comply with the
Court’s orders. See, e.g., Ortega v. Mutt, No. 14-CV-9703 (JGK), 2017 WL 1133429, at *2
(S.D.N.Y. Mar. 24, 2017) (finding that “the lesser sanction of dismissal without prejudice (rather
than with prejudice) is appropriate in order to strike the appropriate balance between the right to
due process and the need to clear the docket and avoid prejudice to defendant by retaining open
lawsuits with no activity” (internal quotation marks omitted)); see also 2 Moore’s Federal
Practice § 19.101 (“The alternative sanctions that the court should consider include . . . dismissal
without prejudice . . . .”).

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CONCLUSION
For the foregoing reasons, this action as to Plaintiff Flores is dismissed without prejudice
pursuant to Federal Rule of Civil Procedure 41(b). The Clerk of Court is respectfully directed to
terminate all pending motions and to close this case.
Dated: August 7, 2023
New York, New York

SO ORDERED.

JENNIFER L. ROCHON
United States District Judge

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