Fabery v. National Association of Government Employees

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CARMEN FABERY,
Plaintiff,
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Civil Action No. 1:24-cv-12781-IT
v. 	*
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NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
Defendant.
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MEMORANDUM & ORDER
October 14, 2026
TALWANI, D.J.
Pending before the court is Defendant National Association of Government Employees’
Motion for Summary Judgment [Doc. No. 48] and Plaintiff Carmen Fabery’s Motion for Voluntary
Dismissal Without Prejudice [Doc. No. 67] (“Motion”). For the reasons set forth below, Plaintiff’s
Motion [Doc. No. 67] is DENIED. Defendant’s Motion for Summary Judgment [Doc. No. 48] is
GRANTED as unopposed.
I. 	Background
Plaintiff, who is proceeding pro se, initiated this action on November 4, 2024. Compl. 5
[Doc. No. 1]. After fact discovery closed, Defendant filed the pending Motion for Summary
Judgment [Doc. No. 48]. Plaintiff’s response was due on May 15, 2026.
At Plaintiff’s request, the court extended the time for Plaintiff to file the response to June 5,
to June 15, and finally to June 22, 2026. See Elec. Order [Doc. No. 57]; Elec. Order [Doc. No. 60];
Elec. Order [Doc. No. 63]. With the final extension, the court noted that it “d[id] not anticipate
granting further extensions of this deadline.” Elec. Order [Doc. No. 63].
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At 5:30 p.m. on June 22, rather than respond to Defendant’s summary judgment motion,
Plaintiff filed an Informative Motion [Doc. No. 64]. In the Informative Motion [Doc. No. 64],
Plaintiff stated that, “although [she was] very close to completion of the response package[,]” she
“was unable to meet the current deadline . . . due to her current health status, mounting obligations
with her current place of employment and an unexpected family situation[.]” Id. ¶ 4. Plaintiff stated
in the Informative Motion [Doc. No. 64] that she would “confer” with Defendant “to submit a joint
stipulation for dismissal or in the alternative move . . . for dismissal of this action.” Id. ¶ 5.
Plaintiff did not file anything for roughly 30 days. On July 22, the court instructed Plaintiff
that “[a]ny stipulation or motion seeking dismissal” must be filed by July 31. Elec. Order [Doc. No.
65]. With the assistance of an attorney under a limited representation agreement, Plaintiff filed her
pending Motion [Doc. No. 67] and accompanying memorandum on July 31. Defendant opposes the
motion. Opp’n [Doc. No. 69].
II. 	Dismissal Pursuant to Federal Rule of Civil Procedure 41(a)(2)
Pursuant to Rule 41(a)(1), a plaintiff may voluntarily dismiss an action “without a court
order” by filing either “a notice of dismissal before the opposing party serves either an answer or a
motion for summary judgment” or “a stipulation of dismissal signed by all parties who have
appeared.” When Rule 41(a)(1) does not apply, “an action may be dismissed at the plaintiff’s request
only by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2).
When a plaintiff seeks dismissal under Rule 41(a)(2), “dismissal without prejudice is the
norm, ‘unless the court finds that the defendant will suffer legal prejudice.’” Colón-Cabrera v. Esso
Standard Oil Co. (P.R.), Inc., 723 F.3d 82, 87 (1st Cir. 2013) (quoting P.R. Mar. Shipping Auth. v.
Leith, 668 F.2d 46, 50 (1st Cir. 1981)). To determine whether dismissal without prejudice will
legally prejudice the defendant, courts in the First Circuit consider four factors: (1) the defendant’s
effort and expense of preparation for trial; (2) excessive delay and lack of diligence on the part of the
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plaintiff in prosecuting the action; (3) insufficient explanation for the need to take a dismissal; and
(4) the fact that a motion for summary judgment has been filed by the defendant. Doe v. Urohealth
Sys., Inc., 216 F.3d 157, 160 (1st Cir. 2000) (citing Pace v. S. Express Co., 409 F.2d 331, 334 (7th
Cir. 1969)). Courts “need not analyze each factor or limit their consideration to these factors.” Doe,
216 F.3d at 160; see Tyco Lab’ys., Inc. v. Koppers Co., 627 F.2d 54, 56 (7th Cir. 1980) (holding that
the four factors identified in Pace serve only as a guide for trial judges).
In the nearly two years since the action was filed, Defendant has produced discovery to
Plaintiff, deposed Plaintiff, defended three of its own designees during depositions taken by
Plaintiff, prepared for a mediation session that ultimately did not proceed, and filed the pending
Motion for Summary Judgment [Doc. No. 48]. At this late stage in the case, both the first factor, that
Defendant has invested considerable “effort and expense” in defending against Plaintiff’s claims,
and the fourth factor, that Defendant has filed a motion for summary judgment, counsel in favor of
finding that dismissal of Plaintiff’s Complaint [Doc. No. 1] without prejudice would be
inappropriate. See Doe, 216 F.3d at 160.
The second and third Doe factors––excessive delay and lack of diligence on the part of the
plaintiff in prosecuting the action; and insufficient explanation for the need to take a dismissal––are
also met in this case. See id.
As grounds for her requested extensions, Plaintiff referenced challenges associated with
representing herself, see Mem. ISO Mot. to Extend 2 [Doc. No. 56]; the demands of her job, see id.
at 3; [Second] Decl. ¶ 4 [Doc. No. 62]; and her health, see [First] Decl. ¶¶ 2–6 [Doc. No. 59];
[Second] Decl. ¶ 2 [Doc. No. 62]. With each extension request, however, Plaintiff stated that she
was working diligently on her intended filings and would soon complete them. See, e.g., Mem. ISO
Mot. to Extend 2 [Doc. No. 56] (“The Plaintiff . . . believes she will be able to present an appropriate
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opposition to the Defendant’s motion for summary judgment as well as a cross-motion for summary
judgment if the Court grants this brief extension of time. . . .”); Mot. to Extend the Time to File 1
[Doc. No. 58] (seeking “a second brief extension . . . to file her response to the Defendant’s motion
for summary judgment, which she has diligently worked on but finds herself unable to file by the
June 5, 2026, deadline due to an untimely and unforeseen health situation”); [Second] Decl. ¶¶ 3–6
[Doc. No. 62] (asserting that, as of June 15, 2026, additional exhibits and Plaintiff’s “response to the
defendant’s undisputed facts” would be filed within two days, a cross-motion for summary judgment
was “prepared[,]” and a “draft version” of Plaintiff’s associated memorandum was “prepared” but
“require[d] [the] add[ition of] references to undisputed facts and the cases that have been selected”).
In moving for dismissal without prejudice, Plaintiff now argues, in relevant part, that she
seeks dismissal “because a related action involving Plaintiff’s former employer remains pending in
state court and involves overlapping factual issues.” Mem. ISO Mot. for Voluntary Dismissal 1
[Doc. No. 68]. Plaintiff specifically asserts that “[p]roceeding simultaneously in both forums would
likely require duplicative discovery, overlapping witness testimony, repeated expert analysis, and the
expenditure of unnecessary judicial and party resources.” Id. at 4.
Plaintiff received a “Final Determination” letter as to her former employer from the Equal
Employment Opportunity Commission on September 12, 2024 and filed her state court action
against that employer on November 8, 2024, four days after filing her Complaint [Doc. No. 1]
against Defendant in this court. See Compl. ECF 12–13 [Doc. No. 1]; Compl., Fabery v. Dep’t of
Children & Families, No. 2484CV02966 (Suffolk Cty. Super. Ct. Nov. 8, 2024). Throughout the
pendency of this case, Plaintiff has never previously raised a concern regarding duplicative litigation
across her state and federal cases, including in the memorandum and declarations submitted in
support of her three extension requests described supra. Where discovery in this case was closed as
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of February 3, 2026, see Elec. Clerk’s Notes [Doc. No. 34], the court is unpersuaded by Plaintiff’s
desire to avoid “duplicative discovery” and the unnecessary expenditure of resources associated
therewith.
Accordingly, under the Doe factors, the court concludes that dismissal of this case without
prejudice will legally prejudice Defendant and DENIES Plaintiff’s request for dismissal without
prejudice.
III. 	Summary Judgment Pursuant to Federal Rule of Civil Procedure 56
In its Motion for Summary Judgment [Doc. No. 48], Defendant seeks summary judgment on
all of Plaintiff’s claims. As a threshold issue, Defendant asserts that Plaintiff failed to file timely
charges with the EEOC or the appropriate state agency and has therefore failed to exhaust her
administrative remedies. Mem. ISO Mot. for Summ. J. 1 [Doc. No. 51]. As to the merits of
Plaintiff’s claims, Defendant argues that Plaintiff has failed to demonstrate that Defendant
acquiesced in any purported religious discrimination by Plaintiff’s employer, “sided” with the
employer’s alleged retaliation against Plaintiff, or independently engaged in discrimination against
Plaintiff on the basis of her religious beliefs. See id. at 2–30.
Where Plaintiff has failed to file an opposition to that motion, despite being granted multiple
extensions of time to do so, Defendant’s Motion for Summary Judgment [Doc. No. 48] is
GRANTED as unopposed.
IV. 	Conclusion
Plaintiff’s Motion for Voluntary Dismissal Without Prejudice [Doc. No. 67] is DENIED.
Defendant’s Motion for Summary Judgment [Doc. No. 48] is GRANTED as unopposed.
IT IS SO ORDERED.
October 14, 2026 	/s/ Indira Talwani
United States District Judge
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