The opinion of the court was delivered by: Ramon E. Reyes, Jr.,m.j.
On October 1, 2009, Louis Love brought this putative class action in diversity on behalf of himself and others similarly situated against Amerigroup Corporation and Amerigroup New York, L.C.C. f/k/a CarePlus, L.L.C. (collectively, "Defendants") for declaratory relief and damages pursuant to New York Labor Law §§ 650 et seq, 28 U.S.C. §§ 1332(d) (2) (A), 2201, 2202. (Compl. ¶¶ 1, 2, 7, at 7--8.) After Love failed to appear at the March 9, 2010 Initial Conference, on March 11, 2010, the Defendants moved to dismiss for Love's failure to prosecute and failure to abide by the Court's orders. (Dkt. 17.) On March 17, 2010, the Honorable I. Leo Glasser referred the motion to me to hear and recommend pursuant to 28 U.S.C. § 636(b) (1) (B). (Dkt. 21.) For the reasons stated below, I respectfully recommend that the motion be granted.
Love, a New York resident, alleges in his Complaint that he worked for the Defendants as a "facilitator" in or about September 2004 through September 2005. (Compl. ¶¶ 8--9.) Love brought this action "on behalf of all persons who have worked for Defendants as facilitators, or persons with other titles, who performed outreach and/or facilitated enrollment of members for Amerigroup's healthcare services . . . and who have not been paid all wages owed by them." (Id. ¶ 14.) Defendant Amerigroup Corporation, a Delaware corporation with a principal place of business in Virginia, is "a multi-state managed healthcare company . . . serving people who receive healthcare benefits through publicly sponsored programs, including Medicaid." (Id. ¶ 10 (quoting Amerigroup Corporation's 10-K report filed with the U.S. Securities and Exchange Commission).) According to the Complaint, defendant Amerigroup New York, L.C.C. f/k/a CarePlus, L.L.C., a New York limited liability company, is a wholly-owned subsidiary of Amerigroup Corporation. (Id. ¶¶ 11--12.)
The Complaint states that the Defendants "willfully failed to pay [Love and similarly situated employees in New York] proper compensation for all of the hours worked . . . [and] overtime compensation," "to maintain accurate and sufficient time records," and "to post or keep posted a notice explaining the minimum wage and overtime pay rights." (Id. ¶¶ 25, 26, 28, 29.) Based on the Defendants' initial investigation, however, Love worked for the Defendants' predecessor during a period outside the statute of limitations and did not work for either the Defendants or their predecessors "at any time within the [six-]year limitations period for the claims in his Complaint." (Affirmation of Jonathan Kozak in Support of Defendants' Motion to Dismiss Plaintiff's Complaint ("Kozak Aff."), Ex.B, at 1.)
On January 19, 2010, Love's counsel moved to withdraw from the case due to Love's "unresponsiveness" to counsel's "telephone, mail, and e-mail communications." (Dkt. 12, Affirmation, ¶¶ 7--8.) On January 25, 2010, the Court granted the motion and adjourned the February 9, 2010 Initial Conference to March 9, 2010, directing Love's counsel to "serve [Love] with this order and advise him that [his] failure to appear at the conference [,] whether pro se or by counsel [,] may result in a report being issued to the [D]istrict [J]udge recommending that the case be dismissed for failure to prosecute." (Dkt. 13.) The Court mailed a copy of this order by certified mail to Love's last known address that his counsel provided to the Court. (Dkt. 15.) Love failed to appear at the March 9, 2010 Initial Conference, and the Court directed the defense counsel to file a motion to dismiss for failure to prosecute and to abide by the Court's scheduling order pursuant to Rules 26 and 27 and the Court's January 25, 2010 order, which required the plaintiff to appear at the Initial Conference. (Dkt. 16.) The Defendants filed their motion on March 11, 2010.*fn1 (Dkt. 17.) Plaintiff has not opposed this motion. (See Dkt.) On March 17, 2010, the Honorable I. Leo Glasser referred this motion to me to hear and recommend. (Dkt. 21.)
I. Standard for Involuntary Dismissal pursuant to Rule 41(b)
The court's power to dismiss a case for want of prosecution is an "inherent power," "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R. Co., 370 U.S. 626, 630--31 (1962). Recognizing this power, Rule 41(b) provides that "a defendant may move to dismiss the action or any claim against it" if a plaintiff fails (1) "to comply with [the Rules] or a court order" or (2) to prosecute his case. Fed. R. Civ. P. 41(b). A district court may treat a party's noncompliance with the court's orders or the Rules as a failure to prosecute. See, e.g., Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000) ("the factors involved in determining whether there has been an abuse of discretion in either context [- dismissal for failure to prosecute or dismissal for noncompliance-] are nearly identical"); Baker v. Latham Sparrowbush Assocs., 72 F.3d 246, 252--53 (2d Cir. 1995) (treating the plaintiff's failure to comply with the court's order as a failure to prosecute); Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) ("[t]he district court . . . has the power under Fed. R. Civ. P. 41(b) to dismiss a complaint for failure to comply with a court order, treating the noncompliance as a failure to prosecute").
To determine whether dismissal for failure to prosecute is appropriate, the courts examine five factors, specifically, whether:
(1) the plaintiff's failure . . . caused a delay of significant duration; (2) plaintiff was given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser sanctions.
Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009)(citing United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). The first factor - the duration of the delay - further "breaks down into two parts: (1) whether the failures to prosecute were those of the plaintiff, and (2) whether these failures were of significant duration." Drake, 375 F.3d at 255 (citation omitted). As to the second factor - notice - the court may dismiss a case for failure to prosecute "even without affording notice of its intention to do so or providing an adversary hearing before acting." Link, 370 U.S. at 633. See also Griffin v. Norwegian Cruise Line, Ltd., No. 01-CV-9755 (PKL), 2002 WL 1268008, at *1 (S.D.N.Y. June 6, 2002) ("[i]t is well settled that, in the appropriate case, notice of the impending dismissal for failure to prosecute and a prior hearing are not required"). "The adequacy of notice and hearing respecting proceedings that may affect a party's rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct." Link, 370 U.S. at 632. Ultimately, none of the five factors alone is dispositive; the court must decide whether the dismissal is warranted "in light of the record as a whole." Lewis, 564 F.3d at 575 (citation and internal quotation marks omitted).
A pro se plaintiff, "who likely lacks the professional and institutional support of a paid advocate," should be "granted special leniency regarding procedural matters." LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citation omitted). Although Rule 41(b) dismissals are reviewed for an abuse of discretion, "deference is due to the district court's decision to dismiss a pro se litigant's complaint only when the circumstances are sufficiently extreme." Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998) (citation and internal quotation marks omitted). Nevertheless, "[t]he severe sanction of dismissal with prejudice may be imposed even against a [pro se] plaintiff ...