Frometa v. Tabu Lounge Inc.

Background

Plaintiffs filed the case in February 2020, asserting claims under the Fair Labor Standards Act and New York Labor Law. The original complaint named Tabu Lounge, Inc., “Jancy (last name unknown),” “Cesar (last name unknown),” and Carlota Chevere. After the court warned that the case could be dismissed for failure to prosecute, plaintiffs voluntarily dismissed Tabu Lounge, Inc. and filed an amended complaint naming Il Posto Rustica Corp., Jansy Infante, “Cesar (last name unknown),” and Carlota Chevere.

Il Posto Rustica Corp. and Jansy Infante appeared and answered. The parties later consented to proceed before a magistrate judge, and plaintiffs settled with Il Posto Rustica Corp. and Jansy Infante for $60,000 plus attorneys’ fees and costs. Because the non-appearing defendants had not consented to proceed before the magistrate judge, the case was reassigned to the district judge for plaintiffs to prosecute their claims against those defendants.

Failure to Prosecute

Plaintiffs took no action to prosecute their claims against “Cesar (last name unknown).” They twice moved for a default judgment against Chevere, but the court denied both motions because of serious deficiencies. The court specifically found that plaintiffs’ own representations and affidavits showed that Chevere had not been served with notice of the second motion and that it was unclear whether she had ever been served with process in the case.

After the court denied the second default-judgment motion on August 8, 2022, plaintiffs took no further action. The court issued an order to show cause on December 22, 2022, requiring plaintiffs to explain why the case should not be dismissed for failure to prosecute. Plaintiffs ignored that order.

Legal Standard

Federal Rule of Civil Procedure 41(b) permits dismissal based on a plaintiff’s failure to comply with a court order or to prosecute the case. The court applied five factors: the length of the delay, whether the plaintiff received notice that further delay could lead to dismissal, possible prejudice to the defendant, the balance between court congestion and the plaintiff’s opportunity to have the case heard, and whether lesser sanctions would be effective.

Ruling

The court found that all five factors favored dismissal. The case had been pending for nearly three years; plaintiffs had received three warnings; the action had remained pending against Chevere, possibly without her knowledge; plaintiffs had already received a substantial settlement and had an opportunity to pursue their claims; and lesser sanctions had not worked.

Accordingly, Judge Vyskocil dismissed the case against the non-appearing defendants, Carlota Chevere and “Cesar (last name unknown),” with prejudice. The Clerk of Court was requested to close the case.