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holding that "prejudice must be presumed to the defendants" where the delay was "lengthy," and plaintiff "failed to give an excuse sufficient to justify" it
Summary of this case from Mahone v. City of N.Y.Opinion
No. 07-1123-pr.
October 29, 2008.
Appeal from the United States District Court for the Southern District of New York (Stein, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the orders of said District Court be and they hereby are AFFIRMED.
Appearing for Appellant: Robert Murray, pro se, Attica, NY.
Appearing for Appellees: Norman Corenthal, Assistant Corporation Counsel for the City of New York, New York, NY
Present: WILFRED FEINBERG, RALPH K. WINTER, ROSEMARY S. POOLER, Circuit Judges.
Robert Murray appeals from an October 23, 2006, order, dismissing his complaint for failure to prosecute, and a March 5, 2007, order denying reconsideration of the dismissal. We assume the parties' familiarity with the facts, proceedings below, and specification of issues on appeal.
The district court did not abuse its discretion by dismissing Murray's complaint for failure to prosecute because (1) Murray was warned in July 1999 that his failure to notify the court whether he intended to pursue the lawsuit by August 3, 1999, would result in dismissal of his lawsuit; (2) Murray took no action in response to this notice until he received the order of dismissal; (3) when he responded, he failed to give an excuse sufficient to justify the delay; and (4) prejudice must be presumed to the defendants from the lengthy delay.See United States of America, ex rel., Drake v. Norden Sys., Inc., 375 F.3d 248, 254-58 (2d Cir. 2004) (describing factors that must be considered prior to a dismissal for failure to prosecute). Further, the district court did not rest its denial of the motion for reconsideration on an erroneous view of the law or a clearly erroneous view of the facts and, therefore, did not abuse its discretion.See Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998).
We, therefore, affirm the orders of the district court.