Cui v. East Palace One, Inc.

Background

Ruixuan Cui brought a proposed collective and class action against individuals and corporate entities associated with East Palace Chinese Restaurant and Six Happiness Chinese Restaurant. Cui alleged violations of the Fair Labor Standards Act and New York Labor Law on behalf of a collective and class. He also asserted individual claims under Section 349 of the New York General Business Law and the Internal Revenue Code.

Cunming Dong opted in as an additional Fair Labor Standards Act plaintiff on May 14, 2018. The plaintiffs’ lawyers later reported that Dong stopped communicating with them and did not cooperate with discovery. They asked to withdraw from representing him and requested dismissal of his claims without prejudice.

Procedural History

The case had been referred to Magistrate Judge Debra Freeman for general pretrial supervision. Judge Freeman warned Dong that, if he proceeded without a lawyer, he would have to pursue the case diligently, attend conferences and other proceedings in person, and comply with court rules and procedures.

Dong did not attend a December 11, 2019 conference. Judge Freeman later directed defense counsel to depose him, but Dong did not respond to attempts to schedule the deposition. After a further motion to withdraw, Judge Freeman ordered Dong to attend a February 21, 2020 conference and warned that failing to appear could lead to a recommendation that his claims be dismissed for failure to prosecute. Dong did not attend, did not explain his absence, and did not respond to a later order directing him to show why dismissal should not be recommended. The order was served on him with a translation in his first language.

Judge Freeman issued a Report and Recommendation recommending dismissal without prejudice. Dong did not object. The district court explained that, when a party receives clear notice of the consequences of failing to object and does not object, the court may adopt the recommendation without conducting a fresh review of every issue.

Court’s Analysis

Federal Rule of Civil Procedure 41(b) allows dismissal when a plaintiff fails to prosecute, meaning fails to move the case forward. Courts consider five factors: how long the noncompliance lasted; whether the plaintiff was warned that dismissal could result; whether defendants were likely to suffer prejudice from further delay; the balance between managing the court’s docket and giving the plaintiff a fair chance to be heard; and whether a less severe sanction would work.

The opinion found no error in Judge Freeman’s analysis of those factors. That analysis relied on Dong’s months of noncooperation, his failure to make himself available for a noticed deposition, his failure to attend two scheduled conferences despite warnings, his failure to respond to the show-cause order, and the prejudice to defendants from his failure to appear for the deposition.

Disposition

Judge Paul G. Gardephe adopted the Report and Recommendation in its entirety. The court dismissed Dong’s claims against the defendants without prejudice under Rule 41(b) for failure to prosecute. The clerk was directed not to close the case.