Opinion
21-CV-1414 (PGG) (JW)
03-14-2022
JOSE QUEZADA, on behalf of himself and all others similarly situated, Plaintiffs, v. ACCRETIVE CAPITAL LLC, Defendant.
REPORT AND RECOMMENDATION TO THE HONORABLE PAUL G. GARDEPHE
JENNIFER E. WILLIS UNITED STATES MAGISTRATE JUDGE
Plaintiff, on behalf of himself and all others similarly situated, filed this action, through counsel, on February 17, 2021, against Accretive Capital LLC, seeking a permanent injunction for defendant's alleged violation of the Americans with Disabilities Act (ADA). However, there has been no activity in this action since March 4, 2021 when an electronic summons was issued as to defendant. On February 17, 2022, I ordered plaintiff to show cause, no later than February 24, 2022, why this action should not be dismissed for failure to prosecute. Since plaintiff failed to respond by that deadline (or at all), I now recommend, respectfully, that this action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b).
Background
Plaintiff filed this action on behalf of himself and all others similarly situated on February 17, 2021. (Dkt. No. 1.) On February 22, 2021, this action was referred to Magistrate Judge Fox for General Pretrial. (Dkt. No. 4.) On March 4, 2021, an electronic summons was issued as to defendant. (Dkt. No. 6.) Plaintiff did not provide any proof of service thereafter. On February 1, 2022, this action was reassigned to me.
Attorney Khaimov is the only attorney of record for plaintiff, remains a member of the bar of this Court, and has an ECF account. However, there has been no activity in this action since March 4, 2021. On February 17, 2022, I ordered plaintiff to show cause by February 24, 2022, why this action should not be dismissed for failure to prosecute. (Dkt. No. 7.) There was no response.
Discussion
A district court may, on motion or sua sponte, dismiss an action for lack of prosecution pursuant to Fed.R.Civ.P. 41(b). Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41-42 (2d Cir. 1982). “To determine whether to dismiss a case for failure to prosecute, district courts employ a balancing test that considers the following five factors: (1) the duration of the plaintiff's failures; (2) whether plaintiff had received notice that further delays would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay; (4) whether the district judge has taken care to strike the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard; and (5) whether the district judge had adequately assessed the efficacy of lesser sanctions.” Balderramo v. Go New York Tours Inc., 2019 WL 5682848 at *3 (S.D.N.Y. Nov. 1, 2019) quoting U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). Here, the balancing test favors dismissal.
First, plaintiff has failed to take any action to advance this case since March 3, 2021 when he requested an issuance of summons as to defendant. Although the fault appears to lie with his counsel for failure to obtain proof of service of the Complaint, “the attorney is the [litigant's] agent when acting, or failing to act, in furtherance of litigation, and the [litigant] must bear the risk of attorney error.” Reeves v. City of Yonkers, 2017 WL 2275025, at *4 (S.D.N.Y. May 24, 2017) (internal quotation marks omitted) (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). Second, the Court has plainly warned plaintiff, through his counsel of record, that his failure to respond to the Order to Show Cause by February 24, 2022 could result in the dismissal of this action. The third factor does not favor dismissal because defendant is not prejudiced by further delay. Without proof of service or an attorney of record for defendant, defendant likely does not even know that a lawsuit has been brought against it. The fourth factor favors dismissal, as it has been over a year since plaintiff filed the Complaint and the Court has given plaintiff the opportunity to advance this case, to no avail. Moreover, the Court has no contact information for the plaintiff and thus no way to reach him other than through his counsel of record, attorney Khaimov. Fifth, the Court has considered sanctions less harsh than dismissal, but concludes that any less severe sanction would be ineffective given Plaintiff's non-compliance with the Court's February 17, 2022 order. In totality, the balancing test favors dismissal.
Conclusion
For the reasons stated above, I respectfully recommend that this action be DISMISSED, pursuant to Fed.R.Civ.P. 41(b), without prejudice. The Clerk of the Court is respectfully directed to mail a copy of this Order to Mars Khaimov, 10826 64th Avenue, 2nd Floor, Forest Hills, NY 11375.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from this date to file written objections to my Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the chambers of the Honorable Jennifer Willis at the same address. Any request for an extension of time to file objections must be directed to Judge Gardephe. Failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).