XIN WEI v. Umi Sushi, Inc.

Background

The plaintiffs brought this Fair Labor Standards Act case seeking unpaid wages and overtime compensation. The defendants filed an answer. Plaintiffs’ counsel later sought permission to withdraw, but Magistrate Judge Barbara Moses denied that request and ordered counsel to appear at a status conference. Counsel did not appear.

After more than two years without activity, Judge Moses ordered the plaintiffs to show cause in writing why the case should not be dismissed for failure to prosecute—that is, for not moving the case forward. The plaintiffs did not respond to that order.

Report and Recommendation

Judge Moses issued a report and recommendation advising that the case be dismissed without prejudice for failure to prosecute. She applied the five factors used when deciding whether to dismiss an action under Federal Rule of Civil Procedure 41(b). She concluded that all five factors supported dismissal, including the plaintiffs’ failure to comply with the show-cause order, the warning that noncompliance could result in dismissal, prejudice to the defendants, the burden on the Court, and the ineffectiveness of a less severe sanction.

The report and recommendation gave the parties fourteen days to object and warned that failing to object would waive further judicial review. Neither side filed objections.

Ruling

Judge Paul G. Gardephe reviewed the report and recommendation for clear error even though no objections were filed. He found it well-reasoned and free of clear error, adopted it in its entirety, and dismissed the plaintiffs’ claims without prejudice for failure to prosecute. The Court directed the Clerk of Court to close the case.