Aguilar v. Kimo Management Group Corp.

Background

Plaintiffs brought a class and collective action against defendants under the Fair Labor Standards Act and New York Labor Law. They alleged failures to pay overtime and minimum wages, provide required wage notices and accurate wage statements, pay for all hours worked, comply with spread-of-hours requirements, and refrain from retaliation. The court had conditionally certified a Fair Labor Standards Act collective and notice had been sent to potential members.

Lesly Sosa filed a consent form on May 17, 2022, agreeing to join the lawsuit and authorizing plaintiffs’ counsel to represent her. Plaintiffs’ counsel later reported that Sosa did not respond to repeated calls, emails, and text messages and that counsel had not spoken with her after she signed the consent form. Plaintiffs asked that Sosa’s consent form be removed from the docket and that she be withdrawn from the case. Defendants did not object.

Magistrate Judge’s Recommendation

Judge Barbara C. Moses ordered Sosa to show cause in writing why her claims should not be dismissed under Federal Rule of Civil Procedure 41(a)(2) or 41(b). The order warned that her claims could be dismissed if she did not respond. Plaintiffs filed proof that the order had been served at Sosa’s last-known physical and email addresses. Sosa did not respond.

Judge Moses recommended dismissing Sosa’s claims without prejudice under Rule 41(b). The recommendation relied on Sosa’s failure to participate, her failure to respond to counsel and the show-cause order, the resulting prejudice to the other plaintiffs and defendants from further delay, and the lack of reason to believe a lesser sanction would prompt her participation.

District Court’s Review and Ruling

No party objected to the recommendation. Judge Gardephe explained that the lack of objections generally waived further judicial review, but he independently reviewed the record for clear error. He found the recommendation thorough, well reasoned, and free of clear error.

Judge Gardephe adopted Judge Moses’s Report and Recommendation in its entirety. The court dismissed Opt-In Plaintiff Lesly Sosa’s claims without prejudice under Federal Rule of Civil Procedure 41(b). The Clerk of Court was directed to terminate the plaintiffs’ motion to remove Sosa from the docket.