Opinion
Civil Action 23 Civ. 5785 (ALC) (SLC)
09-21-2023
LUIS TORO, on behalf of himself and all others similarly situated, Plaintiff, v. GATOR WADERS, LLC, Defendant.
HONORABLE ANDREW L. CARTER, JR., United States District Judge
REPORT & RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE
On July 6, 2023, Plaintiff filed the Complaint. (ECF No. 1). On August 22, 2023, Defendant filed an Answer to the Complaint. (ECF No. 8). On August 30, 2023, the Court issued an Order scheduling an initial case management conference for September 26, 2023. (ECF No. 10 (the “First Order”) at 1). Per the First Order, the parties were required, by September 19, 2023, to file a joint Report of Rule 26(f) Meeting and Proposed Case Management Plan (“PCMP”). (ECF No. 10 at 1-2). The parties did not file the PCMP by September 19, 2023, and therefore failed to comply with the First Order. On September 20, 2023, the PCMP deadline having passed, the Court issued another Order noting that the parties had failed to comply with the First Order. (ECF No. 11 (the “Second Order”)). The Second Order sua sponte extended the September 19, 2023 PCMP deadline to September 20, 2023, nunc pro tunc, and warned that “failure to comply with this Order . . . may result in sanctions, including but not limited to a recommendation to the Honorable Andrew L. Carter, Jr. to dismiss the action for failure to prosecute.” (Id.) The parties did not file the PCMP by September 20, 2023, and therefore failed to comply with the Second Order.
Federal Rule of Civil Procedure 41(b) provides that, “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” A district court may also dismiss an action sua sponte for failure to prosecute under Rule 41(b). See Murray v. Smythe, No. 18 Civ. 4705 (KMK), 2020 WL 4482644, at *2 (S.D.N.Y. Aug. 3, 2020) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). In determining whether to do so, the Court considers (i) the duration of the plaintiff's failure to comply with court orders, (ii) whether he received notice that further delay would result in dismissal, (iii) defendants' prejudice from further delay, (iv) the efficacy of lesser sanctions, and (v) the balance between “alleviat[ing] court calendar congestion” and protecting the plaintiff's right to due process. Caussade v. United States, 293 F.R.D. 625, 629 (S.D.N.Y. 2013) (quoting Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009)).
Here, considering the factors noted above, the Court concludes that Plaintiff has failed to prosecute the action. Plaintiff, as the affirmative litigant, bears the burden of prosecuting his case, and yet has ignored and failed to comply with two Court Orders. The Court warned the parties that failure to comply with its Orders would result in a recommendation of dismissal to Judge Carter for failure to prosecute (ECF No. 11), and yet Plaintiff still ignored and failed to comply with the Second Order. This is sufficient to warrant dismissal for failure to prosecute. See Photon Infotech Inc. v. Galaxy I Techs., Inc., No. 21 Civ. 7573 (VSB), 2021 U.S. Dist. LEXIS 224930, at *1 (S.D.N.Y. Nov. 22, 2021) (dismissing case for failure to prosecute under Rule 41(b) where the parties failed to comply with two Court orders requiring the submission of a PCMP before the initial conference); Chidume v. Greenburgh-North Castle Union Free Sch. Dist., No. 18 Civ. 1790 (PMH), 2021 WL 195948, at *2-3 (S.D.N.Y. Jan. 20, 2021) (dismissing case for failure to prosecute under Rule 41(b) where plaintiff failed to comply with two Court orders and was previously warned that failure to comply would result in dismissal); accord Hernandez v. Stallex Skin Care, Inc., No. 23 Civ. 3085 (RA), 2023 WL 5580679, at *2 (S.D.N.Y. Aug. 28, 2023).
Given the early stage of this case, the “less drastic” sanction of dismissal without prejudice is warranted. See, e.g., Hernandez, 2023 WL 5580679, at *2; Gluck v. Equifax, No. 19 Civ. 9030 (RA), 2021 WL 308556, at *2 (S.D.N.Y. Jan. 29, 2021).
Accordingly, I respectfully recommend that this action be dismissed without prejudice pursuant to Rule 41(b).
The Court notes that Mars Khaimov, Esq., counsel for Plaintiff, is a frequent litigator in this Court who has appeared in over 1,000 cases since 2020. A survey of decisions and orders from this Court reveals that at least 39 of Mr. Khaimov's cases have been dismissed by District Judges for failure to prosecute. (See Civil Action Nos. 20 Civ. 3789 (AT), 20 Civ. 5216 (ER), 20 Civ. 6667 (JPC), 20 Civ. 6669 (JMF), 20 Civ. 6672 (PGG), 20 Civ. 7153 (VSB), 20 Civ. 9535 (JMF), 21 Civ. 1414 (JGLC), 21 Civ. 2152 (ER), 21 Civ. 3016 (VSB), 21 Civ. 4062 (VSB), 21 Civ. 4677 (PAE), 21 Civ. 733 (SHS), 21 Civ. 734 (PAE), 22 Civ. 3936 (GHW), 22 Civ. 3941 (VSB), 22 Civ. 5344 (JPC), 22 Civ. 6099 (ALC), 22 Civ. 6540 (GHW), 22 Civ. 6767 (JPC), 22 Civ. 7076 (MKV), 22 Civ. 7084 (JPC), 22 Civ. 7213 (RA), 22 Civ. 7253 (MKV), 22 Civ. 7362 (JHR), 22 Civ. 7366 (JPC), 22 Civ. 7654 (MKV), 22 Civ. 8357 (JPO), 22 Civ. 8505 (JPC), 22 Civ. 8995 (JPC), 22 Civ. 9199 (AT), 22 Civ. 9791 (JHR), 22 Civ. 9795 (JPO), 23 Civ. 1476 (JPO), 23 Civ. 2270 (ALC), 23 Civ. 3654 (PAE), 23 Civ. 4338 (ALC), 23 Civ. 709 (ER), 23 Civ. 810 (MKV)).
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Carter.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).