    09-0591-cv
    Hatcher v. CVS



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN W HICH A LITIGANT
CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A CITATION APPEARS, AT LEAST ONE
CITATIO N M UST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOM PANIED BY THE NOTATION:
“(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY
ORDER TOGETHER WITH THE PAPER IN WH ICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT
REPRESENTED BY COUNSEL UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC
DATABASE W HICH IS PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH A S THE DATABASE
AVAILABLE AT HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF TH E
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO
THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.

           At a stated term of the United States Court of Appeals for the Second Circuit, held at
    the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
    York, on the 23rd day of December , two thousand nine.

    PRESENT:
                PIERRE N. LEVAL,
                PETER W. HALL,
                GERARD E. LYNCH,
                            Circuit Judges.
    __________________________________________

    Philip Hatcher,

                           Plaintiff-Appellant,

                     v.                                                09-0591-cv

    CVS Corporation,

                      Defendant-Appellee.
    __________________________________________




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FOR APPELLANT: ANTHONY C. OFODILE; Law Office of Anthony C. Ofodile, Esq.;
               Brooklyn, NY.

FOR APPELLEE:            RICHARD M. DE AGAZIO ; Edwards Angell Palmer & Dodge, LLP;
                         Madison, NJ.

          Appeal from a judgment of the United States District Court for the Eastern District of New

York (Feuerstein, J.).

          UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be AFFIRMED.

          Plaintiff-Appellant Hatcher appeals from 1) the district court’s September 30, 2008 order

approving the Report and Recommendation of Magistrate Judge Tomlinson and granting partial

summary judgment to CVS and 2) the district court’s January 26, 2009 dismissal of all remaining

claims under Federal Rules of Civil Procedure 16(f) and 41(b). We assume the parties’ familiarity

with the facts, procedural history, and specification of issues on appeal.

          Hatcher’s complaint listed thirteen causes of action based on Title VII of the Civil Rights

Act of 1964, § 16(b) of the Fair Labor Standards Act of 1938 (“FLSA”), and Article 6 of the New

York Labor Law. The district court granted summary judgment to CVS on Hatcher’s claims for

failure to pay wages under the FLSA; failure to pay wages from September 2000 through July 2005

in violation of New York Labor Law; racial discrimination; retaliatory demotion; and retaliatory

discharge. The court denied summary judgment on the remaining claims, which asserted failure to

pay wages from 1999 to September 2000, retaliatory failure to promote, and retaliatory hostile work

environment, and it set trial for January 2009. These claims were later dismissed by the trial judge

pursuant to Rules 41(b) and 16(f) for failure to comply with a court order and failure to file pretrial

orders.


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       On appeal, Hatcher did not brief arguments addressing the grant of summary judgment to

CVS for the retaliatory demotion claims. We consider those claims waived. See Coosemans

Specialties, Inc. v. Gargiulo, 485 F.3d 701, 708 (2d Cir. 2007). We review dismissals pursuant to

Rule 41(b) and Rule 16(f) for abuse of discretion. Spencer v. Doe, 139 F.3d 107, 112 (2d Cir.

1998); Ashlodge, Ltd. v. Hauser, 163 F.3d 681, 683 (2d Cir. 1998) (per curiam) (reviewing a Rule

16(f) sanction under an abuse of discretion standard), abrogated on other grounds, Cunningham v.

Hamilton County, 527 U.S. 198 (1999).

       The district court did not exceed its discretion in dismissing, pursuant to Rules 16(f) and

41(b), the claims that were set for trial. On the January 26, 2009 trial date, plaintiff’s attorney stated

that he was not ready to proceed, and he refused to try the case. The district court first granted

CVS’s motion for dismissal based on Rule 16(f) for the plaintiff’s attorney’s failure to file an

amended joint pretrial order, directly contravening orders of the court as well as local rules. But the

district court then analyzed the circumstances in light of the five factors that must be considered in

dismissing a case under Rule 41(b), ultimately determining dismissal under this rule was also

proper. See LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001).

       After reviewing the plaintiff’s long record of delay and missed deadlines leading up to the

trial and the plaintiff’s refusal to proceed with trial on the date scheduled, we find the district court

did not abuse its discretion in dismissing the claims that remained for trial. As for the claims

dismissed on summary judgment, as plaintiff was unprepared to proceed on the designated trial

date, there is no reason to believe he would have been more prepared to try additional claims. Thus,

had plaintiff obtained the relief that he now seeks and been permitted a trial on those claims that

were dismissed, by his own admission and as evidenced by his actions, he would have been unable



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to go forward. Because we affirm the Rule 16(f) and 41(b) dismissal of a limited number of

plaintiff’s claims, that dismissal subsumes the six additional claims that plaintiff seeks to have

reinstated.1

        Accordingly, the judgment of the district court is AFFIRMED.

                                              FOR THE COURT:

                                              Catherine O’Hagan Wolfe, Clerk



                                      By:__________________________




        1
          These six claims were, regardless, properly dismissed on summary judgment by the
district court. On the one possible point of contention, Hatcher’s July 6, 2005 letter was
insubordinate and was not a protected activity under Title VII. See Matima v. Celli, 228 F.3d 68,
79 (2d Cir. 2000) (determining that disruptive and insubordinate complaints of discrimination
constitute a basis for adverse action against an employee that does not violate Title VII).

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