The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
TO THE HONORABLE VICTOR MARRERO, UNITED STATES DISTRICT JUDGE
In this action, brought under, inter alia, the Fair Labor
Standards Act, the plaintiff Elena Zumba ("Zumba"), who joined
the action as a party when the plaintiffs amended their original
complaint, has made an application, pursuant to Fed.R.Civ.P.
41(a)(2), that she be permitted to withdraw as a plaintiff in
this action. According to a declaration filed by Haeyoung Yoon,
Esq., counsel to the plaintiffs, Zumba has determined that,
"based upon her personal circumstances . . . she no longer wishes
to pursue this litigation."
Defendant Nam-Hi Lee ("Lee") is the only defendant in the
action who opposes Zumba's application, notwithstanding the fact
that counsel to the plaintiffs has submitted a facsimile copy of
a stipulation executed by Lee through which she agreed that Zumba
could withdraw as a plaintiff in the action. Lee now denies that
she executed the stipulation and urges the court to deny the
instant application because she wishes to examine Zumba orally at
Fed.R.Civ.P. 41(a)(2), in its most pertinent part, informs
that "an action shall not be dismissed at the plaintiff's
instance, save upon order of the court, and upon such terms and conditions as the court deems proper." The determination to grant
an application for dismissal without prejudice, such as has been
made by Zumba, is left to the discretion of the court. Zimpro
Inc. v. United States Environmental Protection Agency,
83 F.R.D. 302, 303 (N.D.N.Y. 1979). "Although voluntary dismissal without
prejudice is not a matter of right . . . the presumption in this
circuit is that a court should grant a dismissal pursuant to
[Fed.R.Civ.P.] 41(a)(2) absent a showing that defendants will
suffer substantial prejudice as a result." Guzman v. Hazemag
U.S.A., Inc., 145 F.R.D. 308, 309 (E.D.N.Y. 1993) (citations
The Second Circuit Court of Appeals has indicated that the
following factors ought to be considered when determining whether
to grant an application made pursuant to Fed.R.Civ.P.
41(a)(2): "The plaintiff's diligence in bringing the motion; any
`undue vexatiousness' on plaintiff's part; the extent to which
the suit has progressed, including the defendant's effort and
expense in preparation for trial; the duplicative expense of
relitigation; and the adequacy of the plaintiff's explanation for
the need to dismiss. See Zagano v. Fordham University,
900 F.2d 12, 14 (2d Cir. 1990). In Zagano, after four years of
pretrial discovery activities, a date for trial was fixed. The
week before the trial was scheduled to commence, the plaintiff
moved for voluntary dismissal of the action pursuant to
Fed.R.Civ.P. 41(a)(2). When the application was denied by the trial
judge, the plaintiff refused to proceed with the trial and the
action was dismissed.
The case at bar can be distinguished from Zagano in several
respects. This case has been pending for approximately one year,
not four. The pace at which the parties' pretrial discovery
activities has progressed has been slowed by amended pleadings,
withdrawals from the action by defense counsel and the poor
health of two individual defendants. As a consequence, the action
is not near that point at which a date for trial might be fixed.
Consequently, it cannot be said that Zumba waited, as the plaintiff did in Zagano, until the eve of
trial to make an application for dismissal pursuant to
Fed.R.Civ.P. 41(a)(2). Furthermore, the Court is mindful that, except
for one defendant, no protest has been made to Zumba's request to
terminate her involvement in this action as a plaintiff. Indeed,
the record before the Court contains evidence that the lone
defendant who has registered a protest to the instant motion,
Lee, at one point executed a stipulation agreeing to Zumba's
departure from the action as a plaintiff. Lee now denies having
executed the stipulation.
In any event, Lee's principal concern appears to be that if
Zumba were allowed to withdraw as a plaintiff in this action,
Lee's ability to examine her orally at a deposition would be
lost. However, Lee's concern would be allayed if the court took
action to ensure that Lee would be able to locate Zumba for the
purpose of serving her a subpoena should Lee determine either to
depose Zumba or to call her as a witness at trial without first
seeking to examine her at a pretrial deposition. Fed.R.Civ.P.
41(a)(2) makes clear that an order of the court that allows a
party to withdraw from an action may contain "such terms and
conditions as the court deems proper." Therefore, the court may
permit Zumba to withdraw from the action upon the condition that
she provide the defendants with her address so that she may be
served with a deposition or trial subpoena in the future.
Although Zumba's reason for withdrawing from the action as a
plaintiff: "personal circumstances," is vague, the Court finds
that, on the whole, after considering the various factors that
Zagano instructs should be considered when weighing a motion
made pursuant to Fed.R.Civ.P. 41(a)(2), the status of this
action militates in favor of granting Zumba's application.
For the reasons set forth above, I recommend that the
application made by Zumba, to withdraw from this action as a plaintiff, should be granted upon
the condition that she provide the defendants with her address so
that a subpoena may be served upon her should it be necessary to
compel her attendance at a deposition or at the trial of this
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from
service of the Report to file written objections. See also
Fed.R.Civ.P. 6. Such objections, and any responses to
objections, shall be filed with the Clerk of Court, with courtesy
copies delivered to the chambers of the Honorable Victor Marrero,
United States District Judge, 40 Centre Street, Room 414, New
York, New York 10007, and to the chambers of the undersigned, 40
Centre Street, Room 540, New York, New York 10007. Any requests
for an extension of time for filing objections must be directed
to Judge Marrero. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS
WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE
REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO
Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);
Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v.
Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v.
Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
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