Guardado v. El Mango Deli Grocery Corp., et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------------X
ABIMAEL MURCIA GUARDADO,
individually and on behalf of all others
similarly situated
Plaintiff,
ORDER
v. 	23-CV-3643-SJB-AYS
EL MANGO DELI GROCERY CORP. and
DELMI AVELAR,
Defendants.
-----------------------------------------------------------------X
BULSARA, United States District Judge:
Plaintiff Abimael Murcia Guardado (“Guardado”) filed this action against
Defendants El Mango Deli Grocery Corp. and Delmi Avelar (collectively, “Defendants”)
for alleged violations of wage and hour laws under the Fair Labor Standards Act and
state labor laws. (See Compl. filed May 16, 2023, Dkt. No. 1). Plaintiff Sandra Chacon
(“Chacon”) then joined the suit. (Consent to Join Collective Action filed Aug. 22, 2023,
Dkt. No. 13). In March, the Court scheduled this case for trial to commence on June 23,
2025. (Jury Selection & Trial Order dated Mar. 4, 2025).
But shortly before trial, counsel for Guardado and Chacon sought to withdraw,
citing a breakdown in the attorney-client relationship and an inability to communicate
with their clients. (Aff. in Supp. of Mot. to Withdraw filed May 28, 2025, Dkt. No. 34-1
¶¶ 4–5). Counsel notified Guardado and Chacon of the withdrawal request and
provided them the relevant orders setting a hearing on the motion. (Aff. of Service filed
May 29, 2025, Dkt. No. 36; Aff. of Service filed June 11, 2025, Dkt. No. 38). The Court
Case 2:23-cv-03643-SJB-AYS Document 44 Filed 12/09/25 Page 1 of 3 PageID #:
<pageID>

2
granted the withdrawal request at a hearing at which Guardado and Chacon failed to
appear. (Order dated July 8, 2025). The Court stayed the matter for 30 days to allow
Plaintiffs to obtain new counsel or proceed pro se, and warned Guardado and Chacon
that they needed to inform the Court how they would proceed, else risk a
recommendation that the case be dismissed for failure to prosecute. (Id.). That Order
was served on Guardado and Chacon. (Aff. of Service filed July 8, 2025, Dkt. No. 39).
Plaintiffs’ counsel submitted a letter reporting that they attempted to call both
Guardado and Chacon, but their calls went straight to voicemail. (Letter filed July 14,
2025, Dkt. No. 41).
After more than three months without any communication from Guardado or
Chacon, Magistrate Judge Shields issued a sua sponte Report and Recommendation
(“R&R”) that the case be dismissed with prejudice for lack of prosecution. (R. & R. filed
Oct. 21, 2025, Dkt. No. 42 at 5). Defendants filed proof of service of the R&R on Chacon
and Guardado. (Aff. of Service filed Oct. 21, 2025, Dkt. No. 43). No party filed
objections.
A district court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). For
dispositive matters, if a party timely objects to the magistrate judge’s recommendation,
“[t]he district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject, or
modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see also Miller v.
Case 2:23-cv-03643-SJB-AYS Document 44 Filed 12/09/25 Page 2 of 3 PageID #:
<pageID>

3
Brightstar Asia, Ltd., 43 F.4th 112, 120 (2d Cir. 2022). If no objections have been made,
the district court “need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Fed R. Civ. P. 72(b) advisory
committee’s note to 1983 amendment; Colvin v. Berryhill, 734 F. App’x 756, 758 (2d Cir.
2018) (“Where . . . a party receives clear notice of the consequences of not objecting to a
report and recommendation, the party’s failure to object to any purported error or
omission in a magistrate judge’s report results in the district court’s review only for
clear error[.]”). The clear error standard also applies when a “party makes only
conclusory or general objections,” or “when the objections are nonspecific or merely
perfunctory responses.” Miller, 43 F.4th at 120.
Judge Shields recommended that this case be dismissed with prejudice for failure
to prosecute under Federal Rule of Civil Procedure 41(b). No party objected, so the
Court reviews only for clear error. Since the withdrawal of Plaintiffs’ counsel in July, a
period of more than four months, the Court has not received any indication from
Guardado or Chacon of any intent to proceed with this case. Accordingly, having
reviewed Judge Shields’s opinion and finding no error, let alone any clear error, the
R&R is adopted in its entirety and the case is dismissed with prejudice for failure to
prosecute. The Clerk of Court is respectfully directed to close this case.
SO ORDERED.
/s/ Sanket J. Bulsara
SANKET J. BULSARA
United States District Judge
Date: 	December 9, 2025
Central Islip, New York
Case 2:23-cv-03643-SJB-AYS Document 44 Filed 12/09/25 Page 3 of 3 PageID #:
<pageID>