Opinion
No. 99 Civ. 693 (TPG)
August 30, 2002
OPINION
Defendant Casual Corner Group, Inc. moves pursuant to Fed.R.Civ.P. 41(b) for the dismissal of plaintiff Jacquelyne Bielinski's action on the basis that plaintiff has failed to prosecute the action for over three years. The motion is unopposed. The motion is granted.
Facts
On January 1, 1999 plaintiff filed the instant action alleging that defendant's apparel line incorporated plaintiffs crochet designs without permission. The complaint alleges unfair competition and asserts claims under other state law theories.
On February 19, 1999 defendant waived service of process and then filed an answer on April 19, 1999. In the answer, defendant denied the substantive allegations of the complaint and asserted affirmative defenses.
More than three years have passed since the pleadings were closed and nothing further has occurred in the action. Defendant asserts that plaintiff failed to make initial disclosures as required by Fed.R.Civ.P. 26(a)(1), and that plaintiff failed to make herself available for a discovery conference as required by Fed.R.Civ.P. 26(f). Defendant therefore contends that plaintiff has abandoned the case.
On February 14, 2002 defendant filed the instant motion to dismiss the action for failure to prosecute. Defendant affirms that plaintiff was served with the motion on February 13, 2002. Plaintiff has not submitted any opposition to the motion.
Discussion
The present motion is brought under Fed.R.Civ.P. 41(b) which provides:
(b) Involuntary Dismissal: Effect Thereof.
For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
The Second Circuit has suggested that a district court should examine five primary factors when considering a motion to dismiss for failure to prosecute. These factors are: (1) the duration of the plaintiffs failure to prosecute; (2) whether the plaintiff received notice that further delays would result in a dismissal; (3) whether the defendant is likely to be prejudiced by further delay; (4) a balancing of the court's calendar congestion and the plaintiffs due process rights; and (5) whether the court has addressed the appropriateness of lesser sanctions. Shannon v. General Electric Co., 186 F.3d 186, 193-94 (2d Cir. 1999).
Review of the record in light of these factors indicates that the action should be dismissed. Over three years have passed since the close of pleadings and plaintiff has taken no action to further the case. Plaintiff was warned by defendant in the present motion that failure to prosecute would result in dismissal and has made no response. The court may presume that defendant would suffer prejudice if forced to defend this case now. This is because delay by one party increases the likelihood that evidence in support of the other party's position will be lost and that discovery and trial will be made more difficult. Shannon, 186 F.3d at 195. Plaintiff does not oppose the present motion and therefore plaintiffs due process rights are not at issue. There are also no appropriate lesser sanctions.
Conclusion
For the reasons stated above, defendant's motion to dismiss the action for failure to prosecute is granted and the action is dismissed with prejudice.
SO ORDERED.