| Date: | 01/20/2025 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | LB-22-0584 – 586 |
These are appeals from civil citations issued to the petitioners by the Office of the Attorney General, Fair Labor Division (division). The division moves to dismiss. The petitioners have not filed opposition papers and have not requested additional time to do so. See standard rule 4(e).[1]
The background to the motion is roughly as follows. An October 2024 scheduling order adopted discovery deadlines proposed by the parties. In November 2024, the division moved to compel, reporting that the petitioners had failed to cooperate with assorted discovery requests. The petitioners did not respond to the motion to compel. An order compelling the discovery in question was issued on December 2, 2024. The current motion follows from the petitioners’ failure to comply with the order compelling discovery.
Dismissal as a sanction for failure to produce discovery is reserved for unusual circumstances. See standard rule 8(i); Short v. Marinas USA Ltd. P’ship, 78 Mass. App. Ct. 848, 852-53 (2011); Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 805-06 (2002). But here the petitioners’ conduct “indicates an intention not to continue with the prosecution of a claim.” Standard rule 7(g)(2). In general, it is anomalous for parties who remain interested in their claims to express no views on dispositive motions. Compare Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 527 F. Supp. 2d 1355, 1371 (M.D. Fla. 2007), with Jones v. Providence Pub. Sch., No. 23-1407, 2024 WL 1128034 (1st Cir. Mar. 11, 2024) (unpublished judgment). In this matter, the petitioners’ failure to oppose the motion dismiss followed their serial failures to comply with the scheduling order and with the order compelling discovery. In order to dispel any lingering doubts, an order dated December 30, 2024 advised the petitioners that their continued failure to oppose the motion to dismiss would result in dismissal for failure to prosecute. The petitioners have filed nothing further. It is clear that they have abandoned their plan to litigate this dispute.
In view of the foregoing, it is hereby ORDERED that the motion to dismiss is ALLOWED and the appeals are DISMISSED. Any appeal from this order must be brought in the Superior Court within 30 days. A motion for reconsideration may be presented to this tribunal within the same period.
Division of Administrative Law Appeals
/s/ Yakov Malkiel
Yakov Malkiel
Administrative Magistrate
