United States District Court, D. Massachusetts
DIANNE BUCCERI, JANET CHARAK, and LISA SANDERS, on behalf of themselves and all other similarly situated, Plaintiffs,
CUMBERLAND FARMS, INC., Defendant.
MEMORANDUM AND ORDER
Talwani United States District Judge
before this court are Defendant Cumberland Farms, Inc.'s
Motion to Dismiss Opt-In Plaintiff Jennie Senac with
Prejudice (“Motion to Dismiss”) [#161], and
Plaintiffs' Counsel's Assented-to Motion to
Withdraw as Counsel to Opt-in Plaintiff Jennie Senac
(“Motion to Withdraw”) [#166]. Senac has not
opposed either motion. For the reasons that follow, both
motions are ALLOWED.
November 25, 2015, Plaintiffs Dianne Bucceri, Janet Charak,
and Lisa Sanders (the “Named Plaintiffs”) brought
an action in this court alleging that Defendant Cumberland
Farms, Inc. (“Cumberland Farms”) had failed to
pay owed overtime wages to both the Named Plaintiffs and to
others similarly situated, in violation of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201
et seq. and Massachusetts wage laws. Compl.
¶¶ 1-2 [#1]. On June 10, 2016, Plaintiffs filed the
operative, Second Amended Collective and Class Action
Complaint and Jury Demand [#42]. On August 31, 2016,
Senac opted-in as a party plaintiff. Pls.' Notice of
Filing Consent to Join Form(s) Under Fair Labor Standards
Act, 29 U.S.C. § 216(b) [#71-1].
February 15, 2017, the court issued an Amended Scheduling
Order [#115] bifurcating discovery. On February 21,
2017, Cumberland Farms selected Senac as one of the
plaintiffs for Phase I discovery, and served Senac with its
First Set of Requests for Production of Documents and First
Set of Interrogatories. Decl. of Molly C. Mooney, Esq.
(“Mooney Decl.”), Ex. A [#162-2]. On an unopposed
motion, the court extended the time for Senac to oppose
Cumberland Farms' discovery requests to March 30, 2017.
Elec. Order [#122]. Plaintiffs' counsel served timely
objections to Cumberland Farms' written discovery
requests on Senac's behalf, see Mooney Decl.,
Ex. B [#162-3], but Senac did not answer any of the
March 24, 2017, Cumberland Farms noticed Senac's
deposition for April 19, 2017, at the Boston office of its
counsel, Seyfarth Shaw LLP. Mooney Decl., Ex. C. [#162-4]. On
April 13, 2017, Plaintiffs' counsel notified Cumberland
Farms that Senac “has not responded to our attempts to
communicate with her, ” and that they were
“unable to confirm her appearance at the
deposition.” Mooney Decl., Ex. D at 8-9 [#162-5].
Plaintiffs' counsel reiterated between April 14, 2017,
and April 18, 2017, that Senac had not responded to their
communications, id. at 2-8, and later stated that
their last communication with Senac occurred in early March
2017, Mooney Decl., Ex. E at 4 [#162-6]. Senac did not appear
for her deposition on April 19, 2017. Id. at 3-4.
status conference on May 4, 2017, the court asked
Plaintiffs' counsel to certify that they mailed a
communication to Senac regarding the case. Status Conference
Hr'g Tr. 7:24-8:7 [#139]. Plaintiffs' counsel
certified on August 4, 2017, that they “sent a letter
today to Jennie Senac regarding the Court's order issued
during the May 4, 2017 conference.” Mooney Decl., Ex. F
[#162-7]. On August 22, 2017, Plaintiffs' counsel told
Cumberland Farms that they “have been unable to
communicate with Ms. Senac and will be filing a request to
withdraw as her counsel.” Mooney Decl., Ex. G [#162-8].
Farms filed its Motion to Dismiss [#161] on August
28, 2017, and on September 1, 2017, Plaintiffs' counsel
filed its Motion to Withdraw [#166]. On September
13, 2017, the court issued an Order to Show Cause
[#172], directing Senac that if she sought to oppose
Plaintiffs' counsel's Motion to Withdraw
[#166], she was to file her opposition no later than
September 27, 2017. Alternatively, if Senac did not oppose
Plaintiffs' counsel's Motion to Withdraw
[#166] but did seek to oppose Cumberland Farms'
Motion to Dismiss [#161], she was to file a
statement of non-opposition to the motion to withdraw and her
opposition to Cumberland Farms' motion no later than
September 27, 2017. Id. The court also warned that
if Senac did not respond to this order, or responded but did
not oppose either motion, it anticipated allowing both
motions. Id. As directed by the court,
Plaintiffs' counsel filed a certificate of service on
September 13, 2017, stating that they had served on Senac a
copy of the court's order. Certificate of Service [#173].
Senac has filed no response to the court's Order to
Show Cause [#172], the Motion to Dismiss
[#161], or the Motion to Withdraw [#166].
Defendant's Motion to Dismiss
Federal Rule of Civil Procedure 41(b), “[i]f the
plaintiff fails to prosecute or to comply with these rules or
a court order, a defendant may move to dismiss the action or
any claim against it.” Despite opting into the
conditionally certified collective action on August 31, 2016,
Senac has failed to respond to discovery requests with other
than generic objections, to appear for her deposition, or to
otherwise prosecute her claims. Further, this court notified
Senac three weeks ago that it anticipated allowing Cumberland
Farms' Motion to Dismiss [#161] if she did not
respond, or responded but did not oppose. Senac did not
respond. The court finds that Senac has failed to prosecute
her case, and the court now GRANTS Cumberland Farms'
Motion to Dismiss [#161].
Plaintiffs' Counsel's Motion to Withdraw
counsel seeks to withdraw as counsel for Senac based on
“a breakdown in the attorney-client
relationship.” Mot. to Withdraw 1 [#166]. Senac has not
opposed the motion. The evidence provided to this court
suggests that Senac has failed to communicate with her
counsel for over six months. See, e.g., Mooney
Decl., Ex. E at 4 [#162-6]. As a result, Plaintiffs'
counsel is unable to represent Senac's interests, and
their Motion to Withdraw [#166] is ALLOWED.
foregoing reasons, Cumberland Farms' Motion to
Dismiss Opt-In Plaintiff Jennie Senac with Prejudice
[#161], and Plaintiffs' Counsel's Assented-to
Motion to Withdraw as ...