United States District Court, S.D. New York
October 19, 2005.
JUANA VIADA, et al., Plaintiff,
OSAKA HEALTH SPA, INC., et al., Defendants.
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
By Order dated September 27, 2005, Magistrate Judge Kevin N.
Fox, to whom this matter had been referred for pretrial
supervision, issued a Report and Recommendation (the "Report")
recommending that the Court grant the application of plaintiff
Elena Zumba ("Zumba") made pursuant to Fed.R.Civ.P. 41(a)(2)
to withdraw as a plaintiff in this action. The Report further
recommended that the withdrawal be conditioned upon Zumba's
providing defendants with her address so that, in the event it
became necessary to do so during the course of the remaining
litigation, a subpoena may be served upon her to compel her
attendance at a deposition or at the trial of this action.
Zumba's counsel filed a timely response objecting to this
condition on the ground that counsel never had Zumba's address or
knowledge of her whereabouts.
II. STANDARD OF REVIEW
A district court evaluating a Magistrate Judge's report may
adopt those portions of the report to which no "specific, written
objection" is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those
sections are not clearly erroneous. See Fed.R.Civ.P. 72(b);
Thomas v. Arn, 474 U.S. 140, 149 (1985); Greene v. WCI Holding
Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997). "Where a party
makes a `specific written objection' within `[ten] days after
being served with a copy of the [magistrate judge's] recommended
disposition,' however, the district court is required to make a
de novo determination regarding those part of the report."
Cespedos v. Coughlin, 956 F. Supp. 454, 463 (S.D.N.Y. 1997)
(quoting United States v. Raddatz, 447 U.S. 667, 676 (1980)). A
district judge may accept, reject, or modify, in whole or in
part, the findings and recommendations of the Magistrate Judge.
See DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994);
Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988).
The Court finds that the facts set forth in the Report are
supported by the record and are thus incorporated herein by
reference. Having conducted a review of the full record,
including, among other things, the Report and applicable legal
authorities, the Court finds the findings, reasoning and legal
support for the recommendations made in Report are not clearly
erroneous. Insofar as Zumba's counsel objects to the condition
the Magistrate Judge recommended, upon full review of the
circumstances the Court finds the provision appropriate, and well
within the discretion of the Court to impose. See Zimpro Inc.
v. United States Environmental Prot. Ag., 83 F.R.D. 302, 303
(N.D.N.Y. 1979). Counsel should provide defendants whatever may
be the latest contact information they have for Zumba. The Court also adopts Zumba's attorneys'
proposal that they accept service of any deposition or trial
subpoena on Zumba's behalf should one be served. Counsel should
also undertake to forward any such subpoena to Zumba in the event
her whereabouts become known to them.
For the reasons discussed above, it is hereby
ORDERED that the Report and Recommendation of Magistrate
Judge Kevin Fox dated September 27, 2005 (Docket No. 127) is
adopted in its entirety, and the motion of plaintiff Elena Zumba
to withdraw from this action without prejudice (Docket No. 67) is
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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