Opinion
Civil Action 23 Civ. 6141 (PAE) (SLC)
09-15-2023
DAMON JONES, on behalf of himself and all others similarly situated, Plaintiff, v. CRWW, INC., Defendant.
TO THE HONORABLE PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
On July 17, 2023, Plaintiff filed the Complaint. (ECF No. 1). On August 1, 2023, Plaintiff served the Complaint on Defendant. (ECF No. 6). Per Federal Rule of Civil Procedure 12(a)(1)(A)(i), Defendant's deadline to respond to the Complaint was August 22, 2023. On August 23, 2023, after Defendant's deadline to respond to the Complaint had passed, the Court ordered Plaintiff to initiate default proceedings against Defendant. (ECF No. 7 (the “First Order”)). The First Order required Plaintiff to request a certificate of default from the Clerk of Court by August 30, 2023, and to file a motion for default judgment by September 13, 2023. (Id.) On August 31, 2023, after Plaintiff's Court-ordered deadline to request a certificate of default from the Clerk of Court had passed, the Court issued another Order noting that Plaintiff had failed to comply with the First Order. (ECF No. 8 (the “Second Order”)). Specifically, the Court ordered Plaintiff to show cause why this case should not be dismissed under Federal Rule of Civil Procedure 41(b) for failure to prosecute. (Id.) The Second Order expressly warned Plaintiff that “failure to comply with this Order may result in sanctions, including but not limited to a recommendation of dismissal of this action to the Honorable Paul A. Engelmayer.” (Id.) Plaintiff's response to the Second Order was due on September 14, 2023 (id.), and, to date, no response has been submitted to the Court.
Federal Rule of Civil Procedure 41(b) provides that, “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” A district court may also dismiss an action sua sponte for failure to prosecute under Rule 41(b). See Murray v. Smythe, No. 18 Civ. 4705 (KMK), 2020 WL 4482644, at *2 (S.D.N.Y. Aug. 3, 2020) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). In determining whether to do so, the Court considers (i) the duration of the plaintiff's failure to comply with court orders, (ii) whether he received notice that further delay would result in dismissal, (iii) defendants' prejudice from further delay, (iv) the efficacy of lesser sanctions, and (v) the balance between “alleviat[ing] court calendar congestion” and protecting the plaintiff's right to due process. Caussade v. United States, 293 F.R.D. 625, 629 (S.D.N.Y. 2013) (quoting Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009)).
Here, considering the factors noted above, the Court concludes that Plaintiff has failed to prosecute the action. Plaintiff has ignored and failed to comply with two Court Orders, and has done nothing to progress this case to judgment against Defendant. The Court warned Plaintiff that failure to comply with its Orders would result in a recommendation of dismissal to Judge Engelmayer for failure to prosecute (ECF No. 8), and Plaintiff still ignored and failed to comply with the Second Order. This is sufficient to warrant dismissal for failure to prosecute. See Chidume v. Greenburgh-North Castle Union Free Sch. Dist., No. 18 Civ. 1790 (PMH), 2021 WL 195948, at *2-3 (S.D.N.Y. Jan. 20, 2021) (dismissing case for failure to prosecute under Rule 41(b) where plaintiff failed to comply with two Court orders and was previously warned that failure to comply would result in dismissal); accord Mena v. City of New York, No. 15 Civ. 3707 (ALC) (HBP), 2017 WL 6398728, at *2 (S.D.N.Y. Dec. 14, 2021) (same); see also Saint Tropez Inc. v. Retro Fox N.Y. LLC, No. 13 Civ. 5230 (NRB), 2016 WL 2865190, at *2 (S.D.N.Y. May 12, 2016) (same, noting that “the relatively straightforward nature of preparing a motion for default judgment and the failure to respond to two Court orders permitting [plaintiff] to ask for extensions strongly suggests a lack of desire to proceed further”).
Given the early stage of this case and the fact that Defendant has not appeared in this matter, the “less drastic” sanction of dismissal without prejudice is warranted. See, e.g., Boone v. Dep't of Corr., No. 20 Civ. 9409 (RA), 2021 WL 5761904, at *3 (S.D.N.Y. Dec. 3, 2021); Gluck v. Equifax, No. 19 Civ. 9030 (RA), 2021 WL 308556, at *2 (S.D.N.Y. Jan. 29, 2021).
Accordingly, I respectfully recommend that this action be dismissed without prejudice pursuant to Rule 41(b).
The Court notes that Mars Khaimov, Esq., counsel for Plaintiff, is a frequent litigator in this Court who has appeared in over 1,000 cases since 2020. A survey of decisions and orders from this Court reveals that at least 39 of Mr. Khaimov's cases have been dismissed by District Judges for failure to prosecute. (See Civil Action Nos. 20 Civ. 3789 (AT), 20 Civ. 5216 (ER), 20 Civ. 6667 (JPC), 20 Civ. 6669 (JMF), 20 Civ. 6672 (PGG), 20 Civ. 7153 (VSB), 20 Civ. 9535 (JMF), 21 Civ. 1414 (JGLC), 21 Civ. 2152 (ER), 21 Civ. 3016 (VSB), 21 Civ. 4062 (VSB), 21 Civ. 4677 (PAE), 21 Civ. 733 (SHS), 21 Civ. 734 (PAE), 22 Civ. 3936 (GHW), 22 Civ. 3941 (VSB), 22 Civ. 5344 (JPC), 22 Civ. 6099 (ALC), 22 Civ. 6540 (GHW), 22 Civ. 6767 (JPC), 22 Civ. 7076 (MKV), 22 Civ. 7084 (JPC), 22 Civ. 7213 (RA), 22 Civ. 7253 (MKV), 22 Civ. 7362 (JHR), 22 Civ. 7366 (JPC), 22 Civ. 7654 (MKV), 22 Civ. 8357 (JPO), 22 Civ. 8505 (JPC), 22 Civ. 8995 (JPC), 22 Civ. 9199 (AT), 22 Civ. 9791 (JHR), 22 Civ. 9795 (JPO), 23 Civ. 1476 (JPO), 23 Civ. 2270 (ALC), 23 Civ. 3654 (PAE), 23 Civ. 4338 (ALC), 23 Civ. 709 (ER), 23 Civ. 810 (MKV)).
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NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).