Ioannis NAKOULAS, Plaintiff, v. Victor EBADI, et al., Defendants 20 CV 678 (ENV) (CLP) United States District Court, E.D. New York Signed March 08, 2021 Counsel Zachary Scott Kaplan, Patricia Rose Lynch, Sacco & Fillas, LLP, Astoria, NY, for Plaintiff. Anthony R. Portesy, Kevin Scott Johnson, Ibrahim Abohamra, Hamra Law Group, PC., Great Neck, NY, Deborah R. Kick, Rankin Savidge PLLC, Mineola, NY, for Defendant Victor Ebadi. Anthony R. Portesy, Kevin Scott Johnson, Ibrahim Abohamra, Hamra Law Group, PC., Great Neck, NY, for Defendant The Sizzling Wok, Inc. Pollak, Cheryl L., United States Magistrate Judge MEMORANDUM AND ORDER *1 On February 6, 2020, plaintiff Ioannis Nakoulas filed this action against defendants Victor Ebadi, The Sizzling Work, Inc. (the “Sizzling Wok”), Pokebowl Station, Inc., Pokeworks NY2 LLC & Pokeworks NY3 LLC, Kureiji, Inc., and XYZ Corp., alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. and New York Labor Law §§ 650, et seq. (Compl.). To date, only defendants Ebadi and the Sizzling Wok have appeared and filed an Answer in the case. In the Complaint, plaintiff alleges that defendant Ebadi was not only the owner and principal of the Sizzling Wok, but that Ebadi was also an owner and principal of all four additional corporate defendants. (Compl. ¶ 26). At both the initial conference held on May 20, 2020, and a subsequent status conference held on August 26, 2020, defendants argued that they had no employment relationship with the other entities named in the Complaint. Defendants Ebadi and the Sizzling Wok have continued to contest their relationship with these other defendants, claiming that they have no ownership interest or control over the other restaurant-corporate defendants that plaintiff has included in this case. (See Minute Entry, dated 8/26/2020; see also Defs.’ Mot.[1] at 1). At the initial conference held on May 20, 2020, the Court ordered the parties to exchange initial disclosures by June 12, 2020; document requests and interrogatories were to be exchanged by June 26, 2020, with responses due by July 27, 2020. (See Minute Entry, dated 5/21/2020). On June 26, 2020, defendants sent discovery requests via email to plaintiff's counsel. (Defs.’ Ltr. at 1). At a status conference held on October 28, 2020, defendants notified the Court that plaintiff had not served any discovery requests by the date set by the Court. Accordingly, the Court again ordered plaintiff to serve discovery demands. (Id. at 2; see Minute Entry, dated 10/28/2020). On December 15, 2020, defendant filed a letter motion asking the Court to issue an order compelling plaintiff to respond to defendants’ June 26, 2020 discovery requests and compelling plaintiff to pay the attorneys’ fee associated with the motion. (Defs.’ Ltr.[2] at 1). The Court then Ordered plaintiff to respond to the defendants’ motion to compel by January 8, 2021. Plaintiff failed to respond. Thereafter, on January 19, 2021, defendants filed a motion to dismiss for lack of prosecution. (Defs.’ Mot. at 1). In that motion, defendants request that the Court grant the motion to compel as unopposed and sanction plaintiff by dismissing the case for failure to prosecute. (Id.) On that same date, January 19, 2021, plaintiff filed a notice of voluntary dismissal as to the defendants who had not answered, including Pokebowl Station, Inc., Pokeworks NY2 LLC & Pokeworks NY3 LLC, Kureiji, Inc., and XYZ Corp. (See ECF No. 16). *2 On February 3, 2021, plaintiff also filed a response, opposing the defendants’ motion to compel and to dismiss the case for failure to prosecute. (Pls.’ Resp.[3] at 1). Plaintiff argues that dismissal of the action and an award of fees are not warranted here. (Id.) DISCUSSION Turning first to defendants’ motion to dismiss the remaining claims against Ebadi and the Sizzling Wok for failure to prosecute, the Court declines to recommend dismissal at this time. In considering a motion to dismiss for failure to prosecute, courts in this Circuit consider five factors: (1) the duration of the plaintiff's failures; (2) whether plaintiff had received notice that further delays would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay; (4) the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard; (5) the efficacy of lesser sanctions. Shannon v. Gen. Elec. Co., 186 F.3d 186, 193–94 (2d Cir. 1999). Here, plaintiff was not given prior notice that the Court was considering possible dismissal; although the Court ordered plaintiff to respond to the defendants’ motion to compel, and plaintiff failed to do so, plaintiff was not placed on notice that his failure to respond to that discovery motion would result in the dismissal of the case. Moreover, plaintiff did appear at the last status conference on January 20, 2021 and filed a timely response to the motion to dismiss. Since a dismissal for failure to prosecute is a “harsh remedy to be utilized only in extreme situations,” Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993), and plaintiff has been participating in the action, the Court declines to dismiss the case for lack of prosecution. With respect to defendants’ motion to compel, plaintiff does not appear to oppose it. However, in plaintiff's response to defendants’ motion to dismiss, plaintiff has attached supplemental responses to defendants’ June 26, 2020 request for documents and interrogatories. (See ECF No. 17-1). In addition to general objections, plaintiff relies heavily on his position that the majority of discovery remains in defendants’ control in this case. For example, in response to Request No. 29, in which defendants request all communications between plaintiff and defendant, in addition to boilerplate objections, plaintiff alleges that “all documents responsive to this demand are solely within the possession of [d]efendants.” (ECF No. 17-1 at 9, Request No. 29). That, however, is clearly not the case, as plaintiff has submitted text messages between himself and the individual defendant as Exhibit B. As such, the Court grants defendants’ motion to compel, but denies defendants’ motion for fees. Plaintiff is Ordered to supplement his responses and either produce responsive documents and information or indicate that the plaintiff does not possess such information. If plaintiff fails to supplement his responses, the Court will consider recommending the imposition of sanctions pursuant to Fed. R. Civ. P. 37 for failing to comply with his discovery obligations, including but not limited to possible dismissal for failure to prosecute, and/or an award of attorney's fees and costs. CONCLUSION *3 Having considered the parties’ arguments,[4] the Court grants defendants’ motion to compel and ORDERS plaintiff to respond to defendants’ document requests and interrogatories with specificity on or before March 31, 2021. However, the Court denies the defendants’ motion for fees at this time, without prejudice to renew if plaintiff continues to respond with boilerplate objections or fails to further respond. Additionally, defendants’ motion to dismiss for lack of prosecution is denied. SO ORDERED. Footnotes [1] Citations to “Defs.’ Mot.” refer to Defendants’ Motion to Dismiss for Lack of Prosecution, filed on January 19, 2021, ECF No. 15. [2] Citations to “Defs.’ Ltr.” refer to the letter motion to compel filed on December 15, 2020, ECF No. 14. [3] Citations to “Pls.’ Resp.” refer to the Response in Opposition of Defendants’ Motion to Dismiss for Lack of Prosecution, filed on February 3, 2021, ECF No. 17. [4] With respect to plaintiff's voluntary dismissal of certain defendants from this case, because the Complaint alleges violations of the Fair Labor Standards Act (“FLSA”), plaintiff must submit a letter explaining the reasons for the dismissal of certain defendants and establishing that such dismissal is fair pursuant to Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015) before the Court may grant that motion.