17-2058-cv
Antonio Lopez v. Pichardo 2230 Restaurant Corp., Lazaro Pichardo, Ruben Pichardo


                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT
                                      SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “Summary Order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
16th day of May, two thousand and eighteen.

Present:
                PETER W. HALL,
                SUSAN L. CARNEY,
                     Circuit Judges,
                JOHN G. KOELTL,*
                     District Judge.


ANTONIO LOPEZ, individually and on behalf of others
similarly situated,

                         Plaintiff-Appellant,

                v.                                                         No. 17-2058-cv

PICHARDO 2230 RESTAURANT CORPORATION, DBA
CARIDAD RESTAURANT, LAZARO PICHARDO, AND RUBEN
PICHARDO,

                         Defendants-Appellees.


Appearing for Plaintiff-Appellant:           SHAWN R. CLARK, Joshua S. Androphy, Michael Faillace
                                             & Associates, P.C., New York, N.Y.

Appearing for Defendant-Appellees:           JOSEPH A. ALTMAN, P.C., Bronx, N.Y.

*
  Judge John G. Koeltl, United States District Court for the Southern District of New York,
sitting by designation.
17-2058-cv
Antonio Lopez v. Pichardo 2230 Restaurant Corp., Lazaro Pichardo, Ruben Pichardo

        Appeal from a judgment of the United States District Court for the Southern District of

New York (McMahon, C.J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-Appellant Antonio Lopez commenced this action in 2015 against Defendants-

Appellees, Pichardo 2230 Restaurant Corporation, DBA Caridad Restaurant, Lazaro Pichardo, and

Ruben Pichardo (collectively “Defendants”), under the Fair Labor Standards Act of 1938, 29

U.S.C. § 201 et seq. (“FLSA”) and New York Labor Law §§ 190 et seq. and 650 et seq. (“NYLL”).

The district court entered a Case Management Order on April 10, 2015 that required a pretrial

order to be filed by July 31, 2015. The pretrial order was never filed, and the docket sheet reflected

that there was no activity at all by the parties in the case for two years after the Case Management

Order was filed in April 2015, except for a notice of change of address by the plaintiff’s counsel.

When the district court requested an explanation for the current status of the case, the plaintiff’s

counsel responded with an unsatisfactory explanation for the delay. The district court responded

with an Order to Show Cause why the case should not be dismissed with prejudice for failure to

prosecute. When the plaintiff again failed to provide a satisfactory explanation for the delay, the

district court dismissed the case with prejudice on June 5, 2017.          On appeal, Lopez argues that

the district court erred in dismissing his case with prejudice for failure to prosecute under Federal

Rule of Civil Procedure Rule 41(b). We assume the parties’ familiarity with the underlying facts,

the procedural history, the district court’s rulings, and the arguments presented on appeal.

        Dismissal is appropriate “[i]f the plaintiff fails to prosecute or to comply with . . . a court

order.” Fed. R. Civ. P. 41(b). In light of the record as a whole, we review for abuse of discretion

a district court’s Rule 41(b) dismissal for failure to prosecute. Link v. Wabash Railroad Co., 370




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U.S. 626, 633 (1962); Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 177 (2d Cir. 2008)

(per curiam); United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004).

The scope of review for an order of dismissal is narrow, “confined solely to whether the trial court

has exercised its inherent power to manage its affairs within the permissible range of its

discretion.” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982) (citing Link, 370

U.S. at 633) (noting that “the primary rationale” for a Rule 41(b) dismissal is the plaintiff’s failure

to prosecute his case diligently). A district court abuses its discretion when its decision “rests on

an error of law . . . or a clearly erroneous factual finding,” or when its ruling “cannot be located

within the range of permissible decisions.” Zervos v. Verizon New York, Inc., 252 F.3d 163, 168–

69 (2d Cir. 2001).

       Recognizing that dismissal for lack of prosecution is a “harsh remedy to be utilized only in

extreme situations,” Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993), this Court has

established “guiding rules that limit a trial court’s discretion” when determining whether dismissal

for failure to prosecute is appropriate. Drake, 375 F.3d at 254; Ruzsa, 520 F.3d at 177 (listing the

following five Drake factors for courts to consider: (1) whether the plaintiff’s failure to prosecute

caused a delay of significant duration; (2) whether the plaintiff was given notice that further delay

would result in dismissal; (3) whether the defendant was likely to be prejudiced by further delay;

(4) the balance between alleviating court calendar congestion and the plaintiff’s right to an

opportunity to be heard; and (5) the efficacy of lesser sanctions).

       The district court noted and applied the Drake factors, none of which alone is dispositive

of the analysis: (1) Lopez’s inaction for two years qualifies as a delay of significant duration; (2)

the district court’s May 23, 2017 Order to Show Cause satisfies notice to Lopez; (3) in addition to

the prejudice Defendants’ assert in their brief, prejudice to Defendants “resulting from




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unreasonable delay may be presumed,” Shannon v. Gen. Elec. Co., 186 F.3d 186, 195 (2d Cir.

1999) (quoting Lyell Theatre, 682 F.2d at 43); (4) Lopez did not establish good cause to excuse

his delay when the court was balancing its need to alleviate court calendar congestion against

Lopez’s right to be heard; and (5) “no sanction short of dismissal” would alleviate court

congestion, a determination that indicates the district court considered lesser sanctions and found

them to be inadequate. Having reviewed the district court’s analysis, we conclude that its dismissal

of Lopez’s complaint with prejudice did not exceed the bounds of its discretion.

       We have considered Lopez’s remaining arguments and find them to be without merit. The

judgment of the district court is AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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