Macua v. NH, State of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Agnes Macua
v. Civil No. 22-cv-186-LM
Empire Beauty School;
Piconics, Inc.; and
Linbar Property Management
REPORT AND RECOMMENDATION
Motions to dismiss filed by Piconics, Inc. (“Piconics”)
(Doc. No. 46) and Linbar Property Management (“Linbar”) (Doc.
No. 45) are before the court for a recommendation as to
disposition. Piconics and Linbar seek dismissal of pro se
plaintiff Agnes Macua’s remaining claims without prejudice under
Federal Rule of Civil Procedure 41(b)1 for failure to prosecute
based on her continued noncompliance with this court’s orders
and her failure to meet discovery obligations. Ms. Macua filed
no objection. As explained below, the court recommends that the
district judge grant both motions and dismiss Ms. Macua’s
remaining claims without prejudice.
1 Linbar also argues that dismissal is an appropriate
sanction under Federal Rule of Civil Procedure 37. Because the
court finds the defendants’ Rule 41(b) argument is meritorious
and dispositive, the court declines to reach the Rule 37
argument.
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Background
On February 13, 2023, Ms. Macua filed an amended complaint
(Doc. No. 28) against defendants Empire Beauty School
(“Empire”), Piconics, and Linbar. Linbar and Empire filed
motions to dismiss (Doc. Nos. 26, 34). Following the resolution
of those motions, Ms. Macua’s remaining claims in this action
are her state law claims against Linbar and her Title VII and
wrongful discharge claims against Piconics.
On March 27, 2024, Linbar and Piconics requested a status
conference with the court, citing Ms. Macua’s failure to serve
her initial disclosures or respond to discovery requests. See
Status Report (Doc. No. 42). Accordingly, the court held a case
management conference on April 3, 2024. During the conference
all parties were present and agreed that: (1) Ms. Macua would
provide her initial disclosures to defendants on or before April
10, 2024; (2) Ms. Macua would respond to defendants’ discovery
requests and serve her own written discovery requests on or
before May 3, 2024; (3) all deadlines in the case would be
stayed; and (4) the court would hold a case management
conference on May 6, 2024 to address the status of discovery and
reset case deadlines. See Order (Doc. No. 43).
All parties appeared at the May 6, 2024 discovery status
conference. During the conference, Linbar and Piconics
represented that Ms. Macua provided part of her initial
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disclosures but did not include a computation of each category
of damages claimed as required by Federal Rule of Civil
Procedure 26(a)(1)(A). Further, while Ms. Macua provided
responses to defendants’ requests for production of documents,
she provided no answers to defendants’ interrogatories. At the
status conference, Ms. Macua acknowledged her partial compliance
with the court’s order and represented that she did not wish to
move forward with her case. The court offered to provide Ms.
Macua with additional time to comply with the court’s April 3,
2024 order and her discovery obligations under the Federal Rules
of Civil Procedure, but she rejected this offer.
Nevertheless, the court granted Ms. Macua an extension of
time to comply with the court’s order given her pro se status
and her previous efforts to prosecute the case. In its May 7,
2024 order, the court directed Ms. Macua to do the following on
or before May 20, 2024: (1) supplement her initial disclosures
to include a computation of each category of damages claimed and
documents or other evidentiary material on which each
computation is based; and (2) provide answers to defendants’
interrogatories. See Order (Doc. No. 44). The court also
informed Ms. Macua that she could seek a temporary stay of this
matter if there were extenuating circumstances preventing her
from prosecuting her case. Id. Further, the court warned Ms.
Macua that her failure to comply with the May 7, 2024 order
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could result in sanctions, including a recommendation that the
district judge dismiss the case without prejudice for failure to
prosecute. Id.
On May 24, 2024, Linbar filed a motion to dismiss (Doc. No.
45), seeking to dismiss Ms. Macua’s claims against it under Rule
41(b) based on her failure to prosecute. Linbar represented
that Ms. Macua had not complied with the court’s orders and that
despite efforts to contact her by email and mail on May 22, 2024
regarding her noncompliance, she provided no response. See
Decl. of Jonathan M. Shirley (“Shirley Decl.”) (Doc. No. 45-1)
¶¶ 13-16.
On June 7, 2024, Piconics also filed a motion to dismiss
(Doc. No. 46) under Rule 41(b) based on Ms. Macua’s failure to
prosecute. Piconics represented that it sent an email to Ms.
Macua on May 22, 2024 and also a letter via email and overnight
Federal Express on June 5, 2024 regarding her noncompliance with
the court’s orders but received no response. Aff. of Tavish M.
Brown (“Brown Aff.”) (Doc. No. 48) ¶¶ 8-11. Ms. Macua filed no
objection to either motion.
Discussion
I. Legal Standard
“‘A district court, as part of its inherent power to manage
its own docket, may dismiss a case for any of the reasons
prescribed in [Rule] 41(b).’” Vivaldi Servicios de Seguridad,
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Inc. v. Maiso Grp., Corp., 93 F.4th 27, 30 (1st Cir. 2024)
(citation omitted); see also Torres-Álamo v. Puerto Rico, 502
F.3d 20, 25 (1st Cir. 2007). Rule 41(b) provides that if “the
plaintiff fails to prosecute or to comply with [the Federal
Rules of Civil Procedure] or a court order, a defendant may move
to dismiss the action or any claim against it.” Fed. R. Civ. P.
41(b).
“However, dismissal under Rule 41(b) as a sanction is
warranted ‘only when a plaintiff’s misconduct has been extreme’
or contumacious. . . . [D]ismissal should not be viewed either
as a sanction of first resort or as an automatic penalty for
every failure to abide by a court order.” Vivaldi Servicios, 93
F.4th at 30 (citations omitted). In balancing the interests of
managing its docket with “‘the larger concerns of justice,
including the strong presumption in favor of deciding cases on
the merits,’” id. at 31 (citation omitted), the court should
consider “‘the severity of the violation, the legitimacy of the
party’s excuse, repetition of violations, the deliberateness vel
non of the misconduct, mitigating excuses, prejudice to the
other side and to the operations of the court, and the adequacy
of lesser sanctions.’” Malot v. Dorado Beach Cottages Assocs.,
478 F.3d 40, 44 (1st Cir. 2007) (quoting Benítez–García v.
González–Vega, 468 F.3d 1, 5 (1st Cir. 2006))
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II. Analysis
During the May 6, 2024 conference, Ms. Macua expressly
represented to the court that she no longer wished to prosecute
this case. Although Ms. Macua appeared at scheduled hearings,
she has not complied with the court’s April 3, 2024 and May 7,
2024 orders. Further, during the May 6, 2024 conference and in
its May 7, 2024 order, the court warned Ms. Macua that failure
to comply with the court’s orders or failure to seek an
alternative to dismissal, such as a stay, could result in
sanctions, including a recommendation that the district judge
dismiss the case without prejudice for failure to prosecute.
Given Ms. Macua’s noncompliance with this court’s orders after
notice and an opportunity to be heard, coupled with her express
representation that she no longer wished to proceed with her
case, the district judge should dismiss the case without
prejudice under Rule 41(b) for failure to prosecute.
Conclusion
For the foregoing reasons, the district judge should grant
Linbar’s motion to dismiss (Doc. No. 45) and Piconic’s motion to
dismiss (Doc. No. 46). Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day
period may be extended upon motion. Only those issues raised in
the objection(s) to this Report and Recommendation are subject
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to review in the district court. See Sch. Union No. 37 v.
United Nat'l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010). Any
issues not preserved by such objection(s) are precluded on
appeal. See id. Failure to file specific written objections to
the Report and Recommendation within the specified time waives
the right to appeal the district court’s order. See Santos-
Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
September 5, 2024
cc: Agnes Macua, pro se
Counsel of Record
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