Vega v. Carey Limousine NY, Inc.

U.S. DISTRICT COURT UNITED STATES DISTRICT COURT neoowtveorteh EASTERN DISTRICT OF NEW YORK enn ee nee ee on nnn oo en =X NIKKO CARLOS VEGA, Plaintiff, “pa NOT FOR PUBLICATION MEMORANDUM & ORDER CAREY LIMOUSINE NY, INC., CAREY 20-cv-5121 (CBA) (JRC) INTERNATIONAL, INC., GARY L. KESSLER, SALLY A. SNEAD, RAMON R. KAMEL, and MITCHELL LAHR, Defendants. nnn nn en en en nn no oo ee eK AMON, United States District Judge: On October 23, 2020, Plaintiff Nikko Carlos Vega (“Vega”) filed suit against Carey Limousine NY, Inc., Carey International, Inc., Gary L. Kessler, Sally A. Snead, Ramon R. Kamel, and Mitchell Lahr (“Defendants”) under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”). (Docket Entry (“D.E.”) # 1 (“Compl.”).) Vega was initially represented by counsel, but his counsel moved to withdraw after Vega became “unresponsive to repeated requests in connection with the representation and. . . unavailable and generally uncooperative.” (D.E. # 18-1, § 3.) Magistrate Judge James R. Cho granted Vega’s counsel’s motion to withdraw on June 3, 2021. After his counsel withdrew, Vega failed to appear for several court appearances before Magistrate Judge Cho. On August 23, 2021, Defendants filed a motion to dismiss under Federal Rule of Civil Procedure 41(b), arguing that dismissal is appropriate where “the plaintiff fails to prosecute or to comply with these rules or a court order.” (D.E. # 30-1 at 3 (quoting Fed. R. Civ. P. 41(b).)' On that same day, I referred the motion to dismiss to Magistrate Judge Cho for report and recommendation (“R&R”). On August 24, 2021, Magistrate Judge Cho set a briefing order on 1Unless otherwise noted, pincites to documents on the docket refer to their internal pagination. Defendants’ motion to dismiss and ordered Vega to respond to the motion to dismiss by September 7, 2021. Magistrate Judge Cho warned Vega that “failure to respond to defendants’ motion may result in dismissal of this action.” Judge Cho made similar warnings in orders that pre-dated the motion to dismiss on May 19, 2021, June 3, 2021, and July 22, 2021. Defendants filed proof of their service of the motion on Vega on August 24, 2021. Vega never responded to Defendants’ motion to dismiss. On February 18, 2022, Magistrate Judge Cho filed his R&R and recommended that I dismiss Vega’s action without prejudice pursuant to Rule 41(b). (D.E. # 33 (“R&R”) at 8.) In making that recommendation, Magistrate Judge Cho reviewed the six factors set out in out in Baffa v. Donaldson, Lufkin & Jenrette Securities Corporation, 222 F.3d 52, 62-63 (2d Cir. 2000) for reviewing whether dismissal for failure to prosecute is appropriate. (R&R 4-5.) Magistrate Judge Cho found that Vega had failed to participate in this case since at least May 18, 2021, and that he had been provided notice from the court on several occasions that failure to comply with court orders could result in dismissal. (Id. at 5-6.) He also found that the length of Vega’s delay prejudiced defendants by delaying any forward motion in this action. (Id. at 7.) Magistrate Judge Cho concluded by finding that a lesser sanction would not be sufficient to persuade Vega to participate in this action, “in light of the fact that the Court already has informed him, to no avail, that his ongoing failure to participate may lead to dismissal of his case.” (Id. at 7-8.) No party has objected to the R&R, and the time for doing so has passed. When deciding whether to adopt an R&R, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1)(C). To accept those portions of the R&R to which no timely objection has been made, “a district court need only satisfy itself that there is no clear error on the face of the record.” Jarvis v. N. Am. Globex Fund, L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011) (quoting Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003)). I have reviewed the record, and finding no clear error, I adopt the R&R. Accordingly, I grant Defendants’ motion to dismiss and dismiss this action without prejudice under Federal Rule of Civil Procedure 41 (b). The Clerk of Court is respectfully requested to mail a copy of this Order to Vega at his last known address: Nikko Carlos Vega, 890 Bryant Avenue, Apt. 2F, Bronx, New York 10474. This report should also be sent to him by email: Nkkvg091@gmail.com SO ORDERED. . s/Carol Bagley Amon Dated: March MW , 2022 Carol Bazlel Amofi } d, Brooklyn, New York United States District Jadge