Opinion
Civil Action 20 Civ. 9598 (JGLC) (SLC)
09-22-2023
RAFAEL MALDONADO ROSETE, ELIGIO CANDIDO, CARLOS SALDANA VILLANUEVA, and VENANCIO SALDANA VILLANUEVA, individually and on behalf of others similarly situated, Plaintiffs, v. AANGAN OF INDIA LLC D/B/A AANGAN, ROYAL KABAB AND CURRY, INC., D/B/A AANGAN, RYM FOODS LLC D/B/A AANGAN, AARON 31 LLC D/B/A AANGAN, NITU SINGH, DOLLY SINGH, ASHISH BAWA, and DICOSTA DOE, Defendants.
HONORABLE JESSICA G. L. CLARKE, United States District Judge
REPORT & RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE
On November 16, 2020, Plaintiffs Rafael Maldonado Rosete, Eligio Candido (“Mr. Candido”), Carlos Saldana Villanueva, and Venancio Saldana Villanueva (collectively, the “Plaintiffs”) brought this action under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (the “FLSA”), 29 U.S.C. § 216(b), New York State Labor Law, §§ 190 et seq. and 650 et seq (the “NYLL”), and the N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.6, alleging that Defendants failed to pay the proper minimum hourly rate, overtime compensation, abide by notice and recordkeeping requirements, pay for equipment, and made unlawful deductions of Plaintiffs' tips. (ECF No. 1 (the “Complaint”)). On November 21, 2022, the Honorable Katherine Polk Failla entered default judgment against Defendants Royal Kabab and Curry, Inc., Rym Foods LLC, Nitu Singh, Dicosta Doe, and Aangan of India LLC, and referred the matter to me for an inquest on damages (the “Inquest”). (ECF Nos. 131; 132).
On July 28, 2023, this action was reassigned to the Honorable Jessica G. L. Clarke. (ECF min. entry July 28, 2023).
On April 5, 2023, Plaintiffs' counsel, CSM Legal P.C. (“CSM”), filed a motion (the “Motion”) to withdraw as counsel for Mr. Candido, stating that he had “stopped communicating with [their] office” and “[i]t therefore has become impossible for [CSM] to diligently represent him in this action . . .” (ECF No. 149-1 ¶ 3). Counsel stated that, between February and March 2023, it had “made multiple attempts via telephone, text message, and first-class mail to contact [Mr.] Candido to sign his declaration in support of the application for an award of damages, interest, attorneys' fees and costs, or engage in settlement negotiations with the non-defaulting Defendants[,]” but that it was “unable to reach him.” (Id. ¶ 4).
On April 10, 2023, the Court directed Mr. Candido to respond to the Motion by April 24, 2023. (ECF No. 152 (the “Apr. 10 Order”)). The Court warned Mr. Candido “that failure to comply with [the Apr. 10] Order may result in dismissal of his claims for failure to prosecute.” (Id.) That same day, CSM served the Apr. 10 Order on Mr. Candido. (ECF No. 153).
On May 12, 2023, Mr. Candido having failed to respond to the Motion or otherwise communicate with the Court, the Court granted the Motion and directed Mr. Candido to “notify the Court whether he intends to secure legal representation or proceed pro se” by June 16, 2023. (ECF No. 156 at 2 (the “May 12 Order”)). The Court warned Mr. Candido “that failure to comply with [the May 12] Order will result in a recommendation of dismissal of his claims for failure to prosecute.” (Id.) On May 16, 2023, CSM served the May 12 Order on Mr. Candido. (ECF No. 158).
The Clerk of Court also mailed a copy of the May 12 Order to Mr. Candido at the address provided by CSM. (ECF min. entry May 15, 2023). In the May 12 Order, the Court advised Mr. Candido that, “if this is not his address, it is his obligation to promptly notify the Court of his current address, and that failure to do so may result in dismissal of his claims.” (ECF No. 156 at 2). On May 24, 2023, the copy of the May 12, 2023 Order that was mailed to Plaintiff was returned as undeliverable. (ECF min. entry May 24, 2023).
To date, Plaintiff has not responded to the May 12 Order or otherwise communicated with the Court.
Under Rule 41(b) of the Federal Rules of Civil Procedure, a district court may dismiss an action sua sponte for failure to prosecute after notifying the plaintiff. See Murray v. Smythe, 18 Civ. No. 4705 (KMK), 2020 WL 4482644, at *2 (S.D.N.Y. Aug. 3, 2020) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). The Court must consider the duration of the plaintiff's failure to comply with court orders, whether he received notice that further delay would result in dismissal, defendants' prejudice from further delay, the efficacy of lesser sanctions, and the balance between “alleviat[ing] court calendar congestion” and protecting the plaintiff's right to due process. Caussade v. United States, 293 F.R.D. 625, 629 (S.D.N.Y. 2013) (quoting Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009)). “‘There is no fixed period of time that must elapse before a plaintiff's failure to prosecute becomes substantial enough to warrant dismissal,' but ‘[d]elays of several months' have been found sufficient.” Farion v. Ezzo, 19 Civ. 5477 (LJL), 2020 WL 5578294, at *1 (SDNY Sept. 17, 2020) (quoting Caussade v. United States, 293 F.R.D. 625, 629 (S.D.N.Y. 2013)); see Dong v. United States, No. 02 Civ. 7751 (SAS), 2004 WL 385117, at *3 (S.D.N.Y. Mar. 2, 2004) (finding that plaintiff's failure to respond for over two months was sufficient to justify dismissal).
“District courts in this Circuit have recognized that ‘the failure to maintain [a current address] with the Court is a ground for failure to prosecute' because ‘[t]he case cannot proceed' without such information.” Cabrera v. Brann, No. 21 Civ. 780 (JMF), 2021 WL 1549818, at *1 (S.D.N.Y. Apr. 20, 2021) (quoting Pratt v. Behari, No. 11 Civ. 6167 (JGK), 2012 WL 1021660, at *1 (S.D.N.Y. Mar. 26, 2012)); see Campbell v. New York City, No. 19 Civ. 5431 (JMF), 2020 WL 469313, at *1 (S.D.N.Y. Jan. 29, 2020) (“In light of the Court's inability to proceed without updated contact information for Plaintiff, dismissal of the case is warranted.”). Moreover, failure to maintain an address also warrants dismissal as it “strongly suggests that [the Plaintiff] is not diligently pursuing this claim.” Dong, 2004 WL 385117 at *3.
The Court concludes that dismissal of Mr. Candido's claims is warranted. The Court has warned Mr. Candido on several occasions that his failure to comply with Court orders would result in dismissal of his claims, but he has failed to update his address or contact the Court. (ECF Nos. 152; 156). Despite these warnings, Mr. Candido has failed to comply with two Court orders, and has not communicated with the Court at all in the more than five months since CSM requested permission to withdraw as his counsel on April 5, 2023. (ECF No. 149). Mr. Candido's failure to prosecute his case has delayed the Court's ability to proceed with the Inquest, and thus has prejudiced the remaining parties to this action. Moreover, the Court is unable to communicate with Mr. Candido, as he has failed to provide current contact information.
Accordingly, “in light of the Court's inability to proceed without updated contact information for [Plaintiff],” I respectfully recommend that this action be DISMISSED WITHOUT PREJUDICE pursuant to Rule 41(b). Cabrera, 2021 WL 1549818, at *1 (finding that, “given [the] Plaintiff's pro se status, . . . dismissal without prejudice is more appropriate than dismissal with prejudice”).
CSM shall promptly serve a copy of this Report and Recommendation on Mr. Candido, and file proof of service on the docket by September 26, 2023.