United States District Court, S.D. New York
ALDRIN HERNANDEZ-JIMENEZ, individually and on behalf of all others similarly situated, Plaintiff,
WRAP-N-RUN LLC, GEORGE PAVLOUNIS AND PETER PAVLOUNIS, Defendants.
OPINION AND ORDER
L. CARTER, JR., United States District Judge.
February 20, 2014, Plaintiff Aldrin Hernandez-Jimenez brought
this action, pursuant to the Fair Labor Standards Act and New
York Labor Law, seeking to recover, inter alia,
"unpaid or underpaid (1) minimum wages [and] (2)
overtime compensation." On November 29, 2016, Magistrate
Judge Kevin Nathaniel Fox issued a Report and Recommendation
recommending dismissal of Plaintiff s action under
Fed.R.Civ.P. 41(b) and 16(f). Prior to the issuance of the
report, Plaintiff failed twice to file a joint pretrial order
("Pretrial Order") by the deadlines set by Judge
Fox. On November 30, 2017, Plaintiff wrote to Judge Fox
stating that Plaintiff did complete the proposed joint
pretrial order before the last deadline, that a mistake in
filing must have occurred, and that both parties have been
waiting for further instructions from the Court. ECF No. 25.
On December 16, 2016, Plaintiff submitted his Objections to
the Report and Recommendation. While Judge Fox fairly
evaluated the situation before him, he was not aware that
Plaintiff mistakenly believed he had filed the Pretrial
Order. Accordingly, the Court rejects the Report and
the conclusion of fact discovery in this matter, Judge Fox
directed the parties to submit on or before December 29, 2015
their pretrial order. According to the Plaintiffs Objections,
Plaintiffs counsel had forwarded to Defendants' counsel
Plaintiffs portion of the joint proposed order. ¶ 2.
However, the parties failed to file the pretrial order in
advance of the December 29 deadline. Afterwards, Judge Fox
directed the parties to submit on or before May 2, 2016 their
joint pretrial order and warned the parties "that
failure to comply with an order of the court may result in
sanctions." Order, ECF No. 23. Judge Fox noted in his R.
& R. that as of the date of the report, no joint pretrial
order had been filed. In his Objections, Plaintiff writes
that the joint pretrial order "should have been
submitted to the orders and judgments clerks . . . prior to
the deadline ... but because the Court does not have it, it
seems a mistake was made." ¶ 4.
Court may accept, reject, or modify, in whole or part, the
findings and recommendations set forth within the Report. 28
U.S.C. § 636(b)(1). When there are objections to the R.
& R., the Court must make a de novo
determination of those portions of the R. & R. to which
objections are made, but may accept uncontested portions so
long as those portions are not "clearly erroneous."
Id; see also Gomez v. Brown, 655 F.Supp.2d 332, 341
initial matter, the district court has discretion in
determining whether a plaintiffs claims should be dismissed
for failure to prosecute or failure to comply with a
court's order. Colon v. Mack, 56 F.3d 5, 7 (2d
Cir. 1995) (failure to prosecute under Fed.R.Civ.P. 41(b));
Neufeld v. Neufeld, 172 F.R.D. 115, 116, 118
(S.D.N.Y. 1997) (failure to comply with court order to submit
portion of pretrial order under Fed.R.Civ.P. 16(f)). The
Second Circuit has "repeatedly emphasized" that
"dismissal is a harsh remedy to be utilized only in
extreme situations." Minnette v. Time Warner,
997 F.2d 1023, 1027 (2d Cir. 1993). Where the dismissal is
with prejudice, it should be used only upon a finding
"of willfulness, bad faith, or reasonably serious
fault." Mitchell v. Lyons Prof I Servs. Inc.,
708 F.3d 463, 467 (2d Cir. 2013) (citation omitted). Indeed,
the dismissal "must be supported by clear evidence of
reviewing the correctness of a district court's dismissal
of an action under Rule 41(b), the Second Circuit considers:
"(1) the duration of the plaintiffs 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 plaintiffs interest
in receiving a fair chance to be heard, and (5) whether the
judge has adequately considered a sanction less drastic than
dismissal." Lucas v. Miles, 84 F.3d 532, 535
(2d Cir. 1996).
Plaintiffs conduct does not rise to the level of willfulness
or bad faith. Plaintiff explained that he believed he
submitted the Pretrial Order by the deadline and was waiting
on instructions from the Court. See Objections to R.
& R. ¶ 4. In Neufeld, the District Court
dismissed the action because plaintiffs did not explain why
they failed to submit and file a pretrial memorandum and
joint pretrial order and also engaged in a pattern of failing
to comply with court orders. 172 F.R.D. at 116. Here,
Plaintiff has provided an explanation for his failure to file
the order. Moreover, there has been one instance of Plaintiff
knowingly missing a court ordered deadline, but one instance
does not constitute a pattern of willful intransigence.
Id. at 119.
Plaintiff was warned that sanctions could result from the
missed deadline, there was no notice that the sanction would
be dismissal. See Minnette, 997 F.2d at 1027
(reversing district court's sua sponte dismissal
of action where plaintiff did not have notice that her action
would be dismissed). In addition, Defendants would suffer no
prejudice from the delay and may have actually contributed to
it. Finally, Plaintiff promptly responded to the R. & R.
a day after it was issued and submitted his Objections within
the deadline, which reveals an intent to continue litigating
the matter. See Town Plaza of Poughquag, LLC. v. Hartford
Ins. Co., 12-cv-7823 (ALC), 2016 WL 6905945, at *2
(S.D.N.Y. Oct. 3, 2016).
reaching this conclusion, the Court notes that Judge Fox was
not aware that Plaintiff mistakenly believed he had filed the
Pretrial Order prior to the deadline, and thus his R. &
R. fairly evaluated the situation before him. Plaintiff
presented new information to the Court immediately after the
Report was filed and hence a different outcome was warranted.
Fortunately for Plaintiff, dismissal is not an appropriate
remedy for his lack of diligence in prosecuting this action.
reasons outlined above, the Report and Recommendation is
rejected. The parties are directed to file their Pretrial
Order anew via ECF by August 1, 2017 and follow up with Judge
Fox's chambers to inquire about next steps.