Ruffner et al v. Grid One Solutions, LLC

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Case 3:24-cv-01097-ECC-ML Document50 Filed 11/26/25 Pagelof7

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

SCOTT RUFFNER, LARRY BALCOLM, and
JEREMY NIMMO, individually and on behalf
of all other persons similarly situated who were
employed by GRID ONE SOLUTIONS,

Plaintiffs,

v. 3:24-cv-1097
(ECC/ML)

GRID ONE SOLUTIONS, LLC and any related
entities,
Defendant.

Frank Gattuso, Esq., for Plaintiffs
William J. Anthony, Esq., for Defendant

Hon. Elizabeth C. Coombe, United States District Judge:
MEMORANDUM-DECISION AND ORDER

On September 10, 2024, Named Plaintiffs Scott Ruffner, Jeremy Nimmo and Larry
Balcolm filed a putative Rule 23 Class and FLSA Complaint against Grid One under the Fair Labor
Standards Act, 29 U.S.C. § 201 and New York Labor Law alleging Defendant failed to pay certain
wages and overtime premiums, and failed to provide statutory wage and hour notices to Named
Plaintiffs and the Class and seeking unpaid wages, liquidated damages, penalties, attorneys’ fees
and costs. Presently before the Court is Defendant’s motion to dismiss the claims of Mr. Balcolm
with prejudice pursuant to Fed. R. Civ. P. 41(b) because of his failure to prosecute and his written
statement that he does not wish to participate in this matter or pursue claims against Defendant.

Dkt. Nos. 43, 43-1.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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I. 	Procedural Background
On February 19, 2025, Magistrate Judge Miroslav Lovric entered a Uniform Pretrial
Scheduling Order (“February 19, 2025 Order”) setting forth various litigation deadlines and
warning that “[t]he failure to comply with the deadlines set forth in Subparagraph (A) above may
result in the imposition of sanctions, including the preclusion of testimony, pursuant to Fed. R.
Civ. P. 16(f).” Dkt. 20. In anticipation of mediation scheduled for May 1, 2025, the parties agreed
to conduct limited discovery including depositions of the three Named Plaintiffs. Mr. Balcolm’s
deposition was scheduled for April 9, 2025, and he failed to appear; he also failed to respond to
efforts by his attorneys to communicate with him. 	Dkt. No. 28; Declaration of Erin M. Train
(Train Decl.) ¶¶ 17, 20-21, Dkt. 43-2.
During the mediation, the parties reached a settlement in principle, and Mr. Balcolm
refused to communicate with his attorneys. 	Dkt No. 24; Train Decl. ¶¶ 18, 20. 	Mr. Balcom’s
counsel filed a motion to withdraw their representation of Mr. Balcolm, and Mr. Balcolm was
personally served with notice of the June 30, 2025 hearing on that motion. Dkt. Nos. 28, 29, 31.
The notice specifically warned Mr. Balcolm that failure to comply with court orders could result
in sanctions including dismissal of the case. 	Id. 	Mr. Balcolm failed to appear for the hearing.
During the hearing, Mr. Balcolm’s counsel stated that Mr. Balcolm did not want to continue in this
matter, and Judge Lovric scheduled another hearing for July 31, 2025. 	June 30, 2025 Minute
Entry. The text order scheduling the July hearing ordered Mr. Balcolm to “inform his counsel in
detail and in writing as to what his intentions are in this litigation and going forward in this
litigation” and warned Mr. Balcolm that failure to comply with court orders could result in
sanctions including dismissal of the case. Dkt. No. 32. Mr. Balcolm was personally served with
notice of the July hearing. Dkt. 34.
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On July 2, 2025, Mr. Balcolm sent an email to his counsel stating:
I, Larry Balcolm, wish to be removed as a named plaintiff from the pending class
action case against Grid One Solutions, LLC, and that the Court dismiss the
claims in this case as they pertain to me individually. I do not want to be part of
this class or case anymore, and I do not intend to pursue any individual claims of
my own against Grid One going forward.
Dkt. No. 39. Mr. Balcolm filed to appear for the July hearing. July 31, 2025 Minute Entry. 	In
response, Judge Lovric issued an Order to Show Cause, requiring Mr. Balcolm to explain in
writing, by August 14, 2025, why this matter should not be dismissed as to him. Dkt. No. 42. The
Order to Show Cause included the following warning:
PLAINTIFF 	LARRY 	BALCOLM 	IS 	ADVISED 	THAT 	FAILURE 	TO
COMPLY WITH COURT ORDERS, OR FAILURE TO APPEAR AT
COURT PROCEEDINGS, OR FAILURE TO APPEAR FOR DEPOSITION,
OR 	FAILURE 	TO 	ENGAGE 	IN 	THE 	DISCOVERY 	PROCESS, 	OR
FAILURE TO UPDATE THE COURT AND ALL PARTIES IN WRITING
ANY 	CHANGE 	IN 	MAILING 	ADDRESS 	AND 	CONTACT
INFORMATION, 	MAY 	RESULT 	IN 	SANCTIONS 	BEING 	IMPOSED
PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF
THE CASE.
Dkt. No. 42. Mr. Balcolm has not responded.
II. Legal Analysis
Defendant argues that Mr. Balcolm’s claims should be dismissed with prejudice under Fed.
R. Civ. P. 41(b) because he has “made it clear that he does not want to be a party to this action or
any other action against Grid One,” “he has asked to be dismissed from this case,” and he has
failed to appear at several hearings.
Rule 41(b) allows motions to dismiss “[i]f the plaintiff fails to prosecute or to comply
with these rules or a court order[].” Fed. R. Civ. P. 41(b). In other words, it “authorizes a district
court to dismiss a complaint for failure to comply with a court order, treating the noncompliance
as a failure to prosecute.” Done v. HSBC Bank USA, 09-cv-4878, 2011 U.S. Dist. LEXIS 1571, at
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*2 (E.D.N.Y. Jan. 5, 2011) (internal quotation omitted). The decision about whether to dismiss
“for want of prosecution is a matter committed to the discretion of the trial judge. . . , [and] the
judge’s undoubtedly wide latitude is conditioned by certain minimal prerequisites.” Peart v. City
of New York, 992 F.2d 458, 461 (2d Cir. 1993) (internal quotation omitted). Five factors must be
considered when deciding whether dismissal under Rule 41(b) is an appropriate sanction:
(1) the duration of the plaintiff’s failure to comply with the court order, (2) whether
plaintiff was on notice that failure to comply would result in dismissal, (3) whether
the defendants are likely to be prejudiced by further delay in the proceedings, (4) a
balancing of the court’s interest in managing its docket with the plaintiff’s interest
in receiving a fair chance to be heard, and (5) whether the judge has adequately
considered a sanction less drastic than dismissal.
Park v. Kim, 91 F.4th 610, 612-13 (2d Cir. 2024) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d
Cir. 1996)).
Here, all five factors weigh in favor of dismissal. Regarding the first factor, the duration
of Mr. Balcolm’s failure to comply with court orders in this case weighs in favor of dismissal.
Mr. Balcolm failed to comply with three orders over two months after failing to appear for his
scheduled deposition. Dkt. Nos. 28, 32, 42. This is sufficient to meet the first factor. See Daniels
v. City of New York, No. 18 Civ. 3717, 2022 WL 883764, at *1 (S.D.N.Y. Mar. 25, 2022) (internal
quotations omitted), adopted by 2022 WL 1204577 (S.D.N.Y. Apr. 22, 2022) (finding plaintiff’s
failure to comply with three separate court orders weighed in favor of dismissal).
Regarding the second factor, Judge Lovric repeatedly warned that if Mr. Balcom did not
comply with court orders, then his claims could be dismissed. 	See Dkt. No. 20 (warning that
failing to comply with deadlines could result in sanctions); Dkt. No. 29, 32, 42 (warning that failure
to comply with court orders, appear for proceedings, or engage in discovery could result in
sanctions under Rules 37 and 41, including dismissal). These warnings weigh in favor of dismissal
even considering that Mr. Balcom is now representing himself. 	See Valentine v. Museum of
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Modern Art, 29 F.3d 47, 49 (2d Cir. 1994) (affirming dismissal with prejudice where plaintiff
ignored repeated warnings that failing to appear for his deposition would result in dismissal of the
action); George v. City of New York, No. 12 CIV. 6365, 2013 WL 5943206, at *4 (S.D.N.Y. Nov.
6, 2013) (finding pro se “plaintiffs received meaningful, non-technical notice that failure [to
comply with the court’s directive] would likely result in dismissal of their claims”).
Regarding the third factor, a defendant is presumed to have suffered prejudice where
“plaintiff’s refusal to comply with court orders causes unreasonable delays.” Santos v. New York
City Hous. Auth., No. 01-cv-1646, 2023 WL 1213335, at *4 (S.D.N.Y. Mar. 17, 2003). 	Here,
Defendant takes the position that Mr. Balcolm’s “failure to appear for his deposition deprived
Defendant of the opportunity to obtain critical testimony prior to mediation, and also forced
unnecessary litigation costs to Defendant to prepare for a deposition that was confirmed for a
mutually convenient date.” Defendant Memorandum of Law at 10, Dkt. No. 43-1. In addition,
counsel for Defendant filed a declaration stating that Mr. Balcolm’s “refusal to communicate with
counsel has (and continues to) delay the finalization of class and collective settlement agreement
reached in principle by the parties on May 1, 2025 requiring attendance at two hearings and
preparing the motion to dismiss.” Id. This factor weighs in favor of dismissal.
Regarding the fourth factor, although “[e]ach plaintiff has a right to his day in court,” this
right “is qualified by the obligation to comply with lawful Court orders.” George, 2013 WL
5943206, at *4. 	Mr. Balcolm was personally served with two of Judge Lovric’s orders and the
last was sent to his mailing address. He is therefore aware of his duty to comply with lawful court
orders. In addition, Mr. Balcolm repeatedly received opportunities to indicate that he wanted to
continue to participate in this action, and he has not done so. Instead, Mr. Balcolm explicitly stated
that he wanted “to be removed as a named plaintiff” and asked that “the Court dismiss the claims
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in this case as they pertain to me individually.” Dkt. No. 39. See Watkins v. Marchese, No. 13
CIV. 3267, 2015 WL 4605660, at *3 (S.D.N.Y. July 31, 2015) (concluding that this factor weighed
in favor of dismissal where the plaintiff received multiple opportunities to comply with court
orders and expressly declined those opportunities). This factor weighs in favor of dismissal given
the Court’s interest in controlling and managing its docket.
Regarding the fifth factor, Judge Lovric considered and used less drastic measures than
dismissal including two hearings where Mr. Balcom was personally served with notice of the
hearings and an Order to Show Cause. As a result, there is no reason to believe that a less drastic
sanction than dismissal would be effective. See Ruzsa v. Rubenstein & Sendy Attys at Law, 520
F.3d 176, 178 (2d Cir. 2010) (“[I]n light of Ruzsa’s failure to respond to the notice threatening
dismissal, it is equally unclear that a ‘lesser sanction’ would have proved effective in this case.”).
In addition, Mr. Balcolm wrote that he does not wish to pursue his claims against Defendant. This
factor weighs in favor of dismissal.
Given the totality of the record and the fact that all five factors weigh in favor of dismissal,
the motion to dismiss is granted.
IV. 	CONCLUSION
For the reasons stated above, it is
ORDERED that the Defendant’s motion to dismiss Named Plaintiff Larry Balcolm’s
claims pursuant to Rule 41(b), Dkt. No. 43, is GRANTED, and Named Plaintiff Larry Balcolm’s
claims are DISMISSED with prejudice; and it is further
ORDERED that the Clerk of Court is respectfully directed to terminate Named Plaintiff
Larry Balcolm from the docket.
IT IS SO ORDERED.
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Dated: November 26, 2025 ia

Elizabeth C. Coombe
U.S. District Judge