Opinion
18-CV-7424 (VEC) (RWL)
06-30-2021
ELIHU ROMERO, et al., Plaintiffs, v. RSK CONSTRUCTION, INC., et al., Defendants.
REPORT AND RECOMMENDATION: DISMISSAL FOR FAILURE TO PROSECUTE
ROBERT W. LEHRBURGER, United States Magistrate Judge.
This action was commenced on August 16, 2018. (Dkt. 1.) On March 4, 2021, this case settled against all defendants except Carlos Morales, Andy Garcia, and Real Innovative Construction (“RIC”). (Dkt. 88.) On April 4, 2021, this Court granted a motion to withdraw made by counsel for the remaining Defendants and gave the remaining Defendants an opportunity to find new counsel. (Dkt. 89.) No counsel appeared for any of the three Defendants.
On June 1, 2021, this Court deemed Defendants Carlos Morales and Andy Garcia pro se and instructed Plaintiffs to file for default against Defendant RIC and/or otherwise update the Court on the status of this case by June 4, 2021. (Dkt. 92.) Plaintiffs did not file for default or update the Court on the status of the case.
On June 15, 2021, the Court then ordered Plaintiffs to show cause in writing why the case should not be dismissed for failure to prosecute by June 22, 2021. (Dkt. 93.) Plaintiffs failed to do so, and they did not request any extension of time or otherwise respond.
This case has been referred to the undersigned for reports and recommendations on dispositive motions. (Dkt. 64) Based on the foregoing, this Court recommends that the case be dismissed for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b). Under Rule 41(b), together with a court's inherent power to dismiss for failure to prosecute, a district judge “may sua sponte, and without notice to the parties, dismiss a complaint for want of prosecution, and such dismissal is largely a matter of the judge's discretion.” Taub v. Hale, 355 F.2d 201, 202 (2d Cir. 1966).
In determining whether to dismiss an action for failure to prosecute under Rule 41(b), a Court should consider five factors:
(1) the duration of the plaintiff's failure to comply with the court order, (2) whether the 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.Jefferson v. Webber, 777 Fed.Appx. 11, 14 (2d Cir. 2019) (internal quotation marks and brackets omitted). No single factor is dispositive and, ultimately, the record must be viewed “as a whole” in order to determine whether dismissal is warranted. Nita v. Connecticut Department of Environmental Protection, 16 F.3d 482, 485 (2d Cir. 1994); United States ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 254 (2d Cir. 2004).
Here, Plaintiffs have failed to comply with two court orders over several months, which warrants dismissal. Chidume v. Greenburgh-North Castle Union Free School District, No. 18-CV-01790, 2021 WL 195948, at *2 (S.D.N.Y. Jan. 20, 2021) (failure to comply with two orders over two-month period warranted dismissal); see also Balderramo v. Go New York Tour Inc., No. 15-CV-2326, 2019 WL 5682848, at *3 (S.D.N.Y. Nov. 1, 2019) (“In this Circuit, a delay of merely a matter of months may be sufficient to warrant dismissal under Rule 41”).
As to the second factor, Plaintiffs were on notice that failure to comply would result in dismissal. (Dkt. 93 (“Plaintiffs shall show cause in writing why the case should not be dismissed for failure to prosecute”).) See Chidume, 2021 WL 195948 at *2 (dismissing case where plaintiff failed to comply with order to show cause why case should not be dismissed for failure to prosecute); Tutora v. Correct Care Solutions, LLC, No. 17-CV-9169, 2020 WL 1164793, at *2 (S.D.N.Y. Mar. 11, 2020) (same); Mena v. City of New York, No. 15-CV-3707, 2017 WL 6398728, at *1 (S.D.N.Y. Dec. 14, 2017) (same).
Third, when a plaintiff's delay is “lengthy and inexcusable, ” prejudice can be presumed. United States ex rel. Drake, 375 F.3d at 256. The delay here is not particularly lengthy, but it is inexcusable. Plaintiffs have failed to move this case forward or update the Court on its status since settling with all but the remaining three Defendants on March 4, 2021, despite multiple orders from the Court, including the recent order to show cause.
Fourth, balancing the Court's interest in managing its docket with Plaintiffs' interest in receiving a fair chance to be heard, weighs in favor of dismissal. Plaintiffs' have already settled with all but the remaining three defendants and, since that time, the Court has issued two orders pressing Plaintiff to participate in this action, to no avail.
Fifth, lesser sanctions are not appropriate here. Where a plaintiff appears to have abandoned the litigation, dismissal is appropriate. Chidume, 2021 WL 195948 at *2; see also Mena, 2017 WL 6398728 at *2 (finding dismissal under Rule 41(b) proper because, inter alia, “the Court is sufficiently persuaded that Plaintiff has abandoned this matter”).
For all of the above reasons, this Court recommends dismissing this action for failure to prosecute.
Procedures For Filing Objections
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Valerie E. Caproni, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, at United States Courthouse, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review.
SO ORDERED.