Opinion
02 Civ. 1998 (JSM)(FM)
June 25, 2002
REPORT AND RECOMMENDATION
I. Recommendation to Dismiss
On March 12, 2002, Kingvision Pay Per View, Ltd. ("Kingvision") commenced this action in which it alleges that the Defendants intercepted and unscrambled Kingvision's transmission of the March 13, 1999 Holyfield/Lewis boxing match, an event which Plaintiffs were broadcasting, and permitted other persons to view it. (Compl. ¶¶ 14-17). The Defendants apparently were not authorized to intercept that signal. (See Compl. ¶ 18). The summons and complaint were served on the Defendants on March 14, 2002. (See Docket No. 3). Pursuant to Fed.R.Civ.P. 12(a)(1)(A), the Defendants' answer was due on April 3, 2002, but has never been served or filed.
Following the referral of this matter by order dated May 14, 2002, the Court made several attempts to contact Plaintiff's counsel, Joseph J. Capetola, Esq., of Capetola Doddato, to discuss the date by which he would move for a default judgment. When we were unable to reach Mr. Capetola after several attempts, I issued an Order directing that he appear for a conference on June 25, 2002. Although a copy of this Order was faxed to Capetola Doddato at the fax number set forth on Kingvision's complaint, Mr. Capetola failed to appear. Mr. Capetola also did not seek any adjournment prior to the conference.
Pursuant to Fed.R.Civ.P. 41(b), a defendant may move for dismissal of an action if the plaintiff fails to prosecute the action. A district judge also may dismiss an action sua sponte for want of prosecution. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001). Given the Plaintiff's apparent unwillingness to proceed with this action, despite repeated efforts to secure the cooperation of its counsel, I recommend that the action be dismissed for want of prosecution.