Russell v. Warren County Jail et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Corey M. Russell,
Plaintiff,
v. 9:24-CV-1109
(BKS/MJK)
Bailey,
Defendant.
_____________________________________________________________________
Corey M. Russell, Plaintiff, pro se
John D. Aspland, Jr., Esq., for Defendant
Mitchell J. Katz, United States Magistrate Judge
To the Honorable Brenda K. Sannes, Chief U.S. District Court Judge:
REPORT-RECOMMENDATION
Chief U.S. District Judge Brenda K. Sannes referred this matter
to the Court for a report and recommendation.1 Before the Court is
Bailey’s Fed. R. Civ. P. 41(b) motion to dismiss for failure to prosecute,
and Fed. R. Civ. P. 37(b)(2)(A) motion to dismiss for failure to obey a
discovery order (Dkt. 20). Russell did not oppose the motion, so Bailey
did not reply. For the reasons below, the Court recommends granting
Bailey’s motion.
1 The District Court has the authority to refer dispositive motions to this Court
under 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).
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I. BACKGROUND
On September 13, 2024, Russell began this lawsuit by filing a
Complaint and moving for leave to proceed in forma pauperis (“IFP”).
(Complaint, Dkt. 1; IFP application, Dkt. 2). Chief Judge Sannes denied
Russell’s IFP application and administratively closed the matter. (Dkt.
4). Russell again moved to proceed IFP. (Dkt. 5). Chief Judge Sannes
granted that IFP request, reviewed the Complaint under 28 U.S.C.
§1915, and dismissed all of Russell’s claims except his Fourteenth
Amendment excessive-force claim against Bailey. (October 23, 2024,
Decision and Order, Dkt. 7). In that decision, Chief Judge Sannes
notified Russell that he is “required to promptly notify, in writing, the
Clerk’s Office and all parties or their counsel of any change in [his]
address[, and] his failure to do so may result in the dismissal of [his]
action.” (Id. at pg. 14).
On December 9, 2024, Russell noticed a change of address from
Warren County Correctional Facility to Saratoga County Jail. (Notice of
Change of Address, Dkt. 11). Nearly a month later, Bailey answered the
Complaint. (Answer, Dkt. 16).
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On January 6, 2025, this Court issued a mandatory pretrial
discovery and scheduling order which, among other things, notified
Russell that: (1) any Amended Pleadings are due by May 6, 2025; (2)
Joinder of Parties is due by May 6, 2025; (3) Discovery is due by June 7,
2025; (4) Dispositive motions must be filed by September 8, 2025.
(January 6, 2025 Discovery and Scheduling Order, Dkt. 18, at pgs. 5-6).
This Court also warned Russell that his failure “to attend, be sworn,
and answer appropriate questions” at his deposition “may result in
sanctions, including dismissal of the action pursuant to Fed. R. Civ. P.
37.” (Id. at pg. 6). A copy of the Discovery and Scheduling Order was
mailed to Russell on the same day.
On January 27, 2025, this Court’s January 6, 2025 Discovery and
Scheduling Order was returned as undeliverable. (Dkt. 19).
On February 18, 2025, Bailey’s “Answer and accompanying cover
letters were returned to counsel’s office from the Saratoga County [Jail]
and the Warren County Correctional Facility.” (Aspland Decl., Dkt. 20-
2, pg. 2, at ¶11). The letters were stamped “Return to Sender.” (Id., pg.
3, at ¶11).
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On February 26, 2025, counsel served his response to the January
6, 2025 Discovery and Scheduling Order on Russell based on “his
address on file with the Court.” (Aspland Decl., Dkt. 20-2, at pg. 3). But
on March 12, 2025, the response was returned to counsel’s office “with
the envelope . . . bearing a stamp reading ‘Return to Sender,’ a written
annotation reading ‘RTS Not Here,’ and a USPS label stating, ‘Return
to Sender,’ ‘Not Deliverable as Addressed,’ and Unable to Forward.’”
(Id., pg. 4, at ¶17); see (Aspland Decl. Exh. C., Dkt. 20-5).
Finally, on April 30, 2025, Bailey moved for dismissal for failure to
prosecute. (Dkt. 20).
II. DISCUSSION
The District Court should dismiss Russell’s Complaint
because there is no evidence he seeks to continue the
prosecution of his case.
The Court recommends that the District Court dismiss Russell’s
Complaint for failure to prosecute. Since Russell filed his last address
update with the Court—nearly one year ago—he has not communicated
with Bailey or filed anything on the docket. In other words, Russell has
not shown any interest in litigating this case. And because that’s so, the
District Court should dismiss Russell’s Complaint.
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“If 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.” Fed. R. Civ. P. 41(b). Courts may dismiss a case for the
plaintiff’s failure to prosecute where:
(1) the plaintiff's failure to prosecute caused a delay of
significant duration; (2) plaintiff was given notice that further
delay would result in dismissal; (3) defendant was likely to be
prejudiced by further delay; (4) the need to alleviate court
calendar congestion was carefully balanced against plaintiff's
right to an opportunity for a day in court; and (5) the trial
court adequately assessed the efficacy of lesser sanctions.
U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004).
“None of these factors [are] dispositive.” Parson v. Barboza, No. 14-CV-
1267 (BKS/CFH), 2016 WL 7264953, at *3 (N.D.N.Y. Dec. 15, 2016).
A. Duration.
The duration factor weighs in favor of dismissal. When examining
the duration factor, courts ask two questions: “(1) whether the failures
to prosecute were those of the plaintiff, and (2) whether these failures
were of significant duration.” U.S. ex rel. Drake, 375 F.3d at 255.
Reviewing the docket, Russell notified the Court that he moved from
Warren County Correction Facility to Saratoga County Jail, in
December 2024. (Notice of Change of Address, Dkt. 11). Since then,
Russell has been radio silent. On January 27, 2025, this Court sent
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Russell a mandatory pretrial discovery and scheduling order, and 21
days later, the mail was returned as undeliverable. (Dkts. 18, 19). And
Russell has never updated his address. That alone is enough for this
factor to warrant dismissal. See Melendez v. City of New York, No. 12-
CV-9241, 2014 WL 6865697, at *2, (S.D.N.Y. Dec. 4, 2014) (Nathan, J.)
(finding that the first Drake factor favors dismissal under Rule 41(b)
where the plaintiff did not comply with court orders directing the
plaintiff to serve defendants and to provide the court with an updated
address). But since the Court’s order bounced back, the joinder of
parties, amending of pleadings, discovery, and dipositive motion
deadlines have come and gone. See (January 6, 2025 Discovery and
Scheduling Order, Dkt. 18, at pg. 5). Yet Russell has not filed anything.
Russell’s failure to communicate with Bailey or this Court for a year,
and the case’s trial ready posture leads this Court to find that this
factor weighs in Bailey’s favor. See Woods v. Cnty. of Onondaga, No. 19-
CV-760 (BKS/TWD), 2021 WL 5918896, at *2 (N.D.N.Y. Dec. 15, 2021)
(dismissing the plaintiff’s Complaint where the [p]laintiff has not
communicated with the Court in almost a year, despite Court orders,
resulting in delay of this action”); see also Parson v. Barboza, No. 14-
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CV-1267 (BKS/CFH), 2016 WL 7264953, at *3 (N.D.N.Y. Dec. 15, 2016)
(dismissing plaintiff’s Complaint where the “[p]laintiff's failure to
prosecute has delayed this action significantly . . . and it is trial ready”).
B. Notice.
The notice factor weighs in favor of dismissal. When examining
the notice factors, courts ask whether the non-moving party “received
notice that further delays would result in dismissal.” U.S. ex rel. Drake,
375 F.3d at 255. Here, Chief Judge Sannes told Russell that he “is also
required to promptly notify, in writing the Clerk’s Office and all parties
or their counsel of any change in plaintiff’s address; his failure to do so
may result in the dismissal of this action.” (October 23, 2024, Decision
and Order, Dkt. 7, at pg. 14). Similarly, this Court warned Russell that
his failure “to attend, be sworn, and answer appropriate questions” at
his deposition “may result in sanctions, including dismissal of the action
pursuant to Fed. R. Civ. P. 37.” (Dkt. 18, at pg. 5). See King v. Demars,
No. 21-CV-1202 (BKS/ML), 2023 WL 4446654, at *1 (N.D.N.Y. July 11,
2023). Finally, Bailey’s motion to dismiss for failure to prosecute also
served as notice. Id. (citing Hernandez v. Tuck, No. 22-CV-05242, 2023
WL 1109663, at *2 (S.D.N.Y. Jan. 30, 2023)) (explaining that “a
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defendant's motion to dismiss for failure to prosecute has been held to
put the plaintiff on notice that his continued failure to prosecute the
action could result in dismissal). That said, this Court finds that the
Notice factor weighs in favor of dismissal.
C. Prejudice.
The prejudice factor weighs in Bailey’s favor. Under this factor,
courts “examine whether defendants are likely to be prejudiced by
further delay.” U.S. ex rel. Drake, 375 F.3d at 256. “Prejudice could be
presumed as a matter of law in certain cases, but the issue turns on the
degree to which the delay was lengthy and inexcusable.” Id. “ Fading
memories with the passage of time may result in unfair prejudice to
Defendants if the action is permitted to continue.” Lau v. NYSARC Tr.
Serv., Inc., No. 20-CV-801 (BKS/CFH), 2024 WL 1723587, at *3
(N.D.N.Y. Apr. 18, 2024) (cleaned up). Here, Russell’s “failure to
prosecute this action and comply with Court orders, delaying discovery
and trial indefinitely” would prejudice Bailey. Woods, 2021 WL
5918896, at *2. As a result, the prejudice factor weighs in Bailey’s favor.
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D. Balance between calendar congestion and
opportunity to be heard.
This factor weighs in Bailey’s favor. “There must be compelling
evidence of an extreme effect on court congestion before a litigant’s
right to be heard is subrogated to the convenience of the court.” Lucas v.
Miles, 84 F.3d 532, 535–36 (2d Cir. 1996). But at the same time, courts
“must also consider fairness to other litigants, whether in the same case
or merely in the same court as competitors for scarce judicial resources.”
Lau, 2024 WL 1723587, at *3 (cleaned up). Here Russell failed to
“apprise the Court of his current address,” which this District Court had
found “weighs slightly in favor of dismissal.” Id. Russell’s failure to
apprise the Court or Bailey of his address has prohibited Bailey from
beginning, let alone completing, discovery, which weighs in favor of
dismissal. See King, 2023 WL 4446654 at *1 (The Court further notes
that Defendant is likely to be prejudiced” in part because “Defendant
has been unable to depose Plaintiff or otherwise complete discovery”).
Adding to that, Russell has also failed to respond to this motion to
dismiss, which also weighs in favor of dismissal. See, e.g., Mack v. Wood,
No. 17-CV-1146 (BKS/ATB), 2022 WL 124297, at *3 (N.D.N.Y. Jan. 13,
2022) (dismissing the Complaint, in part, because the plaintiff “failed to
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file a response to the Court’s Order to Show Cause”). All told, this factor
weighs in Bailey’s favor.
E. Consideration of lesser sanctions.
This factor also weighs in favor of dismissal. In the rule 41(b)
analysis, courts also “consider whether lesser sanctions would have
been sufficient to remedy any prejudice resulting from [the] plaintiff's
delay.” U.S. ex rel. Drake, 375 F.3d at 257. Here, lesser sanctions are
inappropriate because Russell “has made no indication that []he intends
to pursue this action, and has repeatedly failed to comply with Court
orders.” Wood, 2021 WL 5918896 at *2. In fact, “where, as here,
[Russell] remains unreachable and has repeatedly failed to comply with
Court orders, the Court concludes that a sanction less than dismissal
would be ineffective.” Mack, 2022 WL 124297 at *3. To drive the point
home, Russell has not done anything to show that he is interested in
litigating this action. See Russell v. Terraferma, No. 16-CV-00468
(BKS/DJS), 2018 WL 2364285, at *3 (N.D.N.Y. May 24, 2018)
(dismissing the Complaint because Plaintiff . . . made no indication that
he intends to pursue this action,” so “the Court conclude[d] that a
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sanction less than dismissal would be ineffective”). Thus, the Court
finds that this factor weighs in Bailey’s favor.
* * *
Considering the Drake factors, the Court recommends dismissing
the Complaint for failure to prosecute. Russell has shirked his duty to
update the Court as to his address, failed to communicate with the
Court or Bailey for nearly a year, and failed to file any opposition to this
motion. Beyond that, the joinder of parties, amending of pleadings,
discovery, and dispositive motion deadlines have all passed. Everything
Russell has, or has not, done shows that he has no interest in
prosecuting this case. So this Court recommends the District Court
dismiss Russell’s Complaint without prejudice.
* * *
The analysis is no different under Rules 16(f)(1)(C) or 37(b)(2)(A).
when considering a dismissal under Rule 16(f)(1)(C) courts consider “(1)
the willfulness of the non-compliant party or the reason for
noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of
the period of noncompliance; and (4) whether the non-compliant party
had been warned of the consequences of noncompliance.” Milhouse v.
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City of New York, No. 22-CV-2934, 2023 WL 5487921, at *3 (S.D.N.Y.
Aug. 1, 2023) (cleaned up). These factors “substantially overlap” with
the Rule 41(b) factors. Id. at *4. The same can be said of Rules
37(b)(2)(A) and 41(b). See, e.g., Davis v. City of New York, No. 17-CV-
3863, 2019 WL 7842400, at *6 (E.D.N.Y. Dec. 3, 2019) (cleaned up)
(“Because of the substantial overlap between the factors commonly used
to decide whether to dismiss an action under Rule 41(b) and under Rule
37(b)(2)(A), [there is] no need to repeat [the] discussion of redundant
factors in detail.”). And because that’s true, the Court’s Rule 41(b)
analysis is equally applicable here. So, the Court also recommends
dismissing Russell’s Complaint under Rules 16(f)(1)(C) and 37(b)(2)(A).
III. CONCLUSION
WHEREFORE, for the reasons set forth above, it is hereby
RECOMMENDED, that Bailey’s motion to dismiss for failure to
prosecute and failure to obey a discovery order (Dkt. 20) be GRANTED,
and that Russell’s Complaint (Dkt. 1) be DISMISSED WITHOUT
PREJUDICE; and it is further
ORDERED, that the clerk serve a copy of this Order and Report-
Recommendation on Russell at the address the Court has on file, along
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with copies of the unpublished decisions cited herein in accordance with
Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing
Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.
1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: November 21, 2025.
__________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Davis v. City of New York, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 7842400
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Kevin DAVIS, Plaintiff,
v.
CITY OF NEW YORK, New York City Department of Corrections, New York City Department of Investigations,
Correction Officers Benevolent Association, Inc., Dina Simon, Gregory Kuczinski, Heidi Grossman, Becky Scott,
Jonelle Shivraj, Rajin Shivraj, Malia Greathouse, Yomaira Kelley, Albert Mammon, Janilda Cabrera, Defendants.
17-CV-3863-MKB-SJB
|
Signed 12/03/2019
Attorneys and Law Firms
Kevin Davis, Brooklyn, NY, pro se.
Mohammad Adil Yaqoob, Cassandra Natasha Branch, New York City Law Department, New York, NY, Shirley Wenwei Bi,
Littler Mendelson, P.C., Melville, NY, for Defendants.
REPORT AND RECOMMENDATION
BULSARA, United States Magistrate Judge:
*1 On June 23, 2017, Plaintiff Kevin Davis (“Davis”), proceeding pro se and in forma pauperis, brought this action against the
City of New York, the New York City Department of Corrections, the New York City Department of Investigations, Correction
Officers Benevolent Association, Inc., Dina Simon, Gregory Kuczinski, Heidi Grossman, Becky Scott, Jonelle Shivraj, Rajin
Shivraj, Malia Greathouse, Yomaira Kelley, Albert Mammon, and Janilda Cabrera (collectively, “Defendants”). Davis alleged
he was discriminated against in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”),
the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq. (“ADA”), when he was terminated from employment by the New York City Department of Corrections
(“DOC”). (Compl. dated June 23, 2017, Dkt. No. 1 (“Compl.”)).
On November 22, 2017, District Judge Margo K. Brodie dismissed without prejudice Plaintiff's complaint for failure to state a
claim. (Mem. & Order dated Nov. 22, 2017 (“Nov. 22 Order”), Dkt. No. 6). Following this dismissal, Davis filed an amended
complaint on February 12, 2018. (Am. Compl. dated Feb. 12, 2018 (“Am. Compl.”), Dkt. No. 9). Judge Brodie found Davis's
amended complaint plausibly alleged claims against the City of New York (“City”) for hostile work environment and retaliation
in violation of Title VII, New York State Human Rights Law, and New York City Human Rights Law, and therefore permitted
Davis to proceed with his lawsuit. (See Order dated Aug. 24, 2018 (“Aug. Order”)).
Since that decision, Davis has failed to comply with multiple court orders by failing to appear at three conferences and failing
to file required letters with the Court, (Scheduling Order dated Nov. 13, 2018 (“Nov. 13 Order”); Order dated Dec. 10, 2018
(“Dec. 10 Order”); Order dated Dec. 20, 2018 (“Dec. 20 Order”), Dkt. No. 22; Order to Show Cause dated Jan. 11, 2019 (“Jan.
11 Order”); Notice dated Jan. 31, 2019 (“Jan. Notice”); Order to Show Cause dated Oct. 23, 2019 (“Oct. 23 Order”)), despite
receiving warnings that failure to do so could result in dismissal of his case, (see Dec. 20 Order; Jan. 11 Order; Oct. 23 Order).
The City filed a motion to dismiss for lack of prosecution after Davis took no action in the case for four months. (Mot. dated Apr.
19, 2019 (“Apr. Mot.”), Dkt. No. 26). After another four months passed with Davis still taking no action, the City filed a second
Case 9:24-cv-01109-BKS-MJK Document 21 Filed 11/21/25 Page 14 of 55

Davis v. City of New York, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
motion to dismiss for lack of prosecution. (Mot. dated Aug. 19, 2019 (“Aug. Mot.”), Dkt. No. 29). Davis never filed a response
to either motion. The Honorable Margo K. Brodie referred the motions to the undersigned for a report and recommendation.
(Order dated Nov. 22, 2019). For the reasons described below, the Court recommends granting the City's motions and dismissing
Davis's claims with prejudice for two reasons: (1) failure to abide by this Court's Orders; and (2) failure to prosecute.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
*2 Davis worked as a probationary Correction Officer for the DOC before his termination on October 6, 2016. (Compl. at 7).
Proceeding pro se and in forma pauperis, he commenced this suit on June 23, 2017, alleging employment discrimination by the
Defendants. (Compl.; Nov. 22 Order). On November 22, 2017, Judge Brodie dismissed Davis's complaint for failure to state a
claim. (See Nov. 22 Order). Davis filed an amended complaint on February 12, 2018. (Am. Compl.).
Davis's amended complaint alleged a pattern of inappropriate behavior by other DOC officers, including sexual and racist jokes,
groping, and invasive questions, (Am. Compl. ¶¶ 16–21, 63–72). The amended complaint also alleged the City engaged in
retaliatory behavior, including his eventual termination, to prevent Davis from disclosing the harassment, (id. ¶¶ 22–27, 32–
41, 112–16).
Upon review of the amended complaint, Judge Brodie found Davis plausibly alleged claims for hostile work environment and
retaliation in violation of Title VII, New York State Human Rights Law, and New York City Human Rights Law and permitted
Davis to proceed with these claims against the City. (See Aug. Order). This Court scheduled an in-person initial conference
for January 11, 2019. (Nov. 13 Order).
On December 7, 2018, the City filed a motion for a pre-motion conference in anticipation of a motion to dismiss the amended
complaint. (Mot. dated Dec. 7, 2018, Dkt. No. 18). The Court granted the motion and scheduled the conference for December
20, 2018. (Dec. 10 Order). Despite service of this Order on Davis, (Aff. of Service (“Service Aff. of Dec. 10 Order”), Dkt.
No. 20), he failed to appear at the pre-motion conference. (Dec. 20 Order). The Court rescheduled the conference for January
31, 2019 and warned Davis that failure to appear at this conference could result in negative consequences including an order
preventing him from filing another amended complaint or dismissing his case with prejudice. (Dec. 20 Order). The Court also
ordered him to submit a letter by January 15, 2019 explaining his failed appearance. (Id.). But, as of January 15, 2019, Davis
did not submit any explanation.
On January 11, 2019, Davis failed to appear for the initial conference despite receiving service of the Scheduling Order. (Jan.
11 Order; Aff. of Service (“Service Aff. of Nov. 13 Order”), Dkt. No. 17). This Court ordered him to explain by letter why he
failed to attend by January 22, 2019. (Jan. 11 Order). Davis again did not comply. The Court warned Davis that failure to appear
at the next conference may lead to sanctions, “including dismissal of his case.” (Id.).
Nonetheless, on January 31, 2019, Davis failed yet again to appear for the rescheduled pre-motion hearing. (Jan. Notice). On
April 19, 2019, following four months of inaction by Davis, the City filed a motion to dismiss for lack of prosecution (Apr.
Mot.). Four additional months passed, and Davis still took no action, prompting the City to file a second motion to dismiss for
lack of prosecution. (Aug. Mot.). 1 On October 23, 2019, this Court gave Davis one final opportunity to explain by November
6, 2019 why the case should not be dismissed based on a failure to prosecute. (Oct. 23 Order). A copy of the order was mailed
to Plaintiff's home address. (Entry dated Oct. 23, 2019 (“Oct. 23 Entry”)). As of the date of this Report and Recommendation,
Davis has failed to respond to the Oct. 23 Order, failed to abide by a single court order since the Amended Complaint was filed,
failed to respond to successive motions to dismiss, and failed to prosecute his case by serving a single discovery demand. 2
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Davis v. City of New York, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
DISCUSSION
I. Dismissal with Prejudice under Rules 16(f) and 37(b)
*3 “A court has the inherent power to supervise and control its own proceedings and to sanction counsel or a litigant ... for
disobeying the court's orders[.]” Mickle v. Morin, 297 F.3d 114, 125 (2d Cir. 2002). “The imposition of sanctions pursuant to
Rule 37 (and ... Rule 16(f)) is a matter committed to the sound discretion of the District Court.” Neufeld v. Neufeld, 172 F.R.D.
115, 118 (S.D.N.Y. 1997). The purpose of such sanctions, including dismissal, is “not merely to penalize those whose conduct
may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such
a deterrent.” Valentine v. Museum of Modern Art, 29 F.3d 47, 49–50 (2d Cir. 1994) (quoting Nat'l Hockey League v. Metro.
Hockey Club, Inc., 427 U.S. 639, 643 (1976)). The Court recommends that Davis's claims be dismissed with prejudice, because
he has repeatedly failed to appear at pretrial conferences and failed to comply with multiple court orders.
A court may sanction a party for failing to appear—either at a court conference or as the Court directs. Rule 16(f)(1)(A) of the
Federal Rules of Civil Procedure provides that a “court may issue any just orders, including those authorized by Rule 37(b)
(2)(A)(ii)–(vii), if a party ... fails to appear at a scheduling or other pretrial conference.” Fed. R. Civ. P. 16(f)(1)(A). A court
also has the ability to sanction a party for failing to abide by any of its orders. Fed. R. Civ. P. 16(f)(1)(C) (permitting sanctions
where party “fails to obey a scheduling or other pretrial order.”); Martin v. Giordano, 185 F. Supp. 3d 339, 354 (E.D.N.Y. 2016)
(“When a party or its attorney engages in conduct proscribed by Rule 16(f), the court may issue any just orders.” (quotations
omitted)); Advanced Analytics, Inc. v. Citigroup Glob. Mkts., Inc., 301 F.R.D. 31, 35 (S.D.N.Y. 2014) (“Rule 37(b)(2)(A)(ii)–
(vii), which Rule 16(f) references, sets forth a non-exclusive list of sanctions a court may impose against a party for failing
to comply with a court order[,]” including dismissal.). “The court need not find that a party or litigant acted in bad faith as a
prerequisite to imposing sanctions under Rule 16(f); [r]ather, the fact that a party violated a pretrial order is sufficient to allow
a Rule 16 sanction.” Giordano, 185 F. Supp. 3d at 354 (quotations omitted).
Here, Davis failed to appear at three pretrial conferences and failed to obey three separate court orders. First, he failed to
appear at the pre-motion conference scheduled for December 20, 2018, despite being served with notice of the conference.
(See Dec. 10 Order; Service Aff. of Dec. 10 Order; Dec. 20 Order). Davis then failed to file a letter explaining his reasons for
missing the conference, despite being mailed a copy of the Order directing him to do so. (See Dec. 20 Order; Aff. of Service
(“Service Aff. of Dec. 20 Order”), Dkt. No. 23). On January 11, 2019, Davis, despite service, failed to appear for an initial
conference and then failed to file a letter with the Court explaining his absence. (See Nov. 13 Order; Jan. 11 Order; Service
Aff. of Nov. 13 Order; Affs. of Service (“Service Affs. of Jan. 11 Order”), Dkt. Nos. 24–25). Davis also failed to appear at the
rescheduled pre-motion hearing on January 31, 2019, (Jan. Notice), thereby missing a third conference and disobeying another
court order to appear in person (Dec. 20 Order). Lastly, when given one final opportunity to explain why this case should not be
dismissed for failure to prosecute (Oct. 23 Order), Davis failed to respond. These repeated failures warrant sanctions under both
Rule 16(f)(1)(A) (failure to appear at a scheduling or other pretrial conference) and 16(f)(1)(C) (failure to obey a scheduling
or other pretrial order). See, e.g., Johnson v. New York City, No. 14-CV-4278, 2015 WL 12999661, at *1 (E.D.N.Y. Jan. 12,
2015) (recommending dismissal under Rules 16(f) and 37(b)(2)(A)(v) for lateness and failure to appear at two court-ordered
conferences), report and recommendation adopted, 2015 WL 12990999 (Feb. 2, 2015), aff'd, 646 F. App'x 106 (2d Cir. 2016).
*4 The sanctions for such misconduct—whether it be a failure to appear or abide by a court order—include dismissal. See
Fed. R. Civ. P. 16(f) (adopting the sanctions authorized by Rule 37(b)(2)(A)(v)); see Fed. R. Civ. P. 16 advisory committee's
note to 1983 amendment (“Rule 16(f) incorporates portions of Rule 37(b)(2), which prescribes sanctions for failing to make
discovery.”); Fonar Corp. v. Magnetic Plus, Inc., 175 F.R.D. 53, 55 (S.D.N.Y. 1997) (collecting cases) (“[T]he standards to be
applied in imposing sanctions under Rule 16 are identical to the familiar standards contained in Rule 37.”). Such a dismissal may
be with prejudice. See Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (“[A]ll litigants ... have an obligation
to comply with court orders, and failure to comply may result in sanctions, including dismissal with prejudice.”) (citations and
quotations omitted) (emphasis added). 3 “[D]ismissal with prejudice is a harsh remedy to be used only in extreme situations,
and then only when a court finds willfulness, bad faith, or any fault by the non-compliant litigant.” Id. (quotations omitted).
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The Court considers several factors in determining whether to impose a sanction of dismissal with prejudice: “(1) the willfulness
of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period
of noncompliance, and (4) whether the non-compliant party had been warned of the consequences of ... noncompliance.” Id.
(quotations omitted); accord S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010). “[T]hese factors
are not exclusive, and they need not each be resolved against” the non-compliant party for dismissal to be appropriate, S. New
England Tel. Co., 624 F.3d at 144. Ultimately, the Court must conclude under all of the circumstances whether dismissal would
be “just.” Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 135 (2d Cir. 2007). “[T]he district court ‘is free to consider
the full record in the case’ ” in making this determination. In re Bear Stearns Cos., Inc. Sec., Derivative, & ERISA Litig., 308
F.R.D. 113, 120 (S.D.N.Y. 2015) (quoting S. New England Tel. Co., 624 F.3d at 144). The balance of factors here justifies the
dismissal with prejudice of Davis's claims.
A. Willfulness
Noncompliance is willful where the party has received notice of a court's orders and repeatedly failed to comply. See Coach
Inc. v. O'Brien, No. 10-CV-6071, 2011 WL 6122265, at *3 (S.D.N.Y. Nov. 28, 2011) (“The Court deems the noncompliance
willful given that these orders were mailed directly to [defendant's] address, and yet she repeatedly failed to comply.”), report
and recommendation adopted and modified on other grounds, 2012 WL 1255276 (Apr. 13, 2012). “[T]his factor as formulated
by the Second Circuit is not just willfulness, but the willfulness of the non-compliant party or the reason for non-compliance....
[T]he Second Circuit's inclusion of the latter phrase recognizes that dismissal may be warranted even in the absence of such
open defiance.” Jin Fang Luo v. Panarium Kissena Inc., No. 15-CV-3642, 2019 WL 360099, at *5 (E.D.N.Y. Jan. 11, 2019)
(quotations omitted), report and recommendation adopted, 2019 WL 356939 (Jan. 29, 2019).
*5 Davis failed to comply with six court orders and failed to appear at three conferences. (Nov. 13 Order; Dec. 10 Order;
Dec. 20 Order; Jan. 11 Order; Jan. Notice; Oct. 23 Order). Davis was served with copies of the Court's orders. (Service Aff. of
Nov. 13 Order; Service Aff. of Dec. 10 Order; Service Aff. of Dec. 20 Order; Service Affs. of Jan. 11 Order; Oct. 23 Entry). As
such, he was aware of the obligations, and his failure to comply is willful. See, e.g., Lopa v. Safeguard Props. Mgmt., LLC, No.
14-CV-3193, 2018 WL 3104456, at *8 (E.D.N.Y. May 16, 2018) (“Having received these multiple notices, Rosemarie Lopa
had other options besides appearing or responding as directed. She could have written to the Court seeking an adjournment or
extension of time to respond; or retained counsel, as she had previously done, to appear or respond on her behalf. Having done
none of these things and having failed to appear or respond personally, the only conclusion to be drawn is that her disregard
of the Court's orders was willful.”), report and recommendation adopted, 2018 WL 3019875 (June 18, 2018) and 2018 WL
3094940 (June 22, 2018); Coach Inc., 2011 WL 6122265, at *3 (“The Court deems noncompliance willful given that these
orders were mailed directly to [defendant's] address, and yet she repeatedly failed to comply.”).
B. Efficacy of Lesser Sanctions
A sanction less than dismissal would not be effective in this case. When it is apparent a plaintiff has abandoned the action,
“[t]he Court need not afford [him] unlimited opportunities to appear,” and “[n]o lesser sanction than dismissal is appropriate
under these circumstances.” Bey v. Gursky, No. 17-CV-6447, 2018 WL 1611665, at *2 (E.D.N.Y. Mar. 15, 2018), report and
recommendation adopted, 2018 WL 1611377 (Apr. 3, 2018).
The record suggests no reason to believe that a lesser sanction, such as a monetary fine or a sanction short of dismissal, would
encourage Davis to reengage in this litigation, especially given his repeated failure to abide by prior court orders warning that his
case could be dismissed should he fail to comply. At this point, given the multiple opportunities afforded to Davis to participate
in the case, the Court has no reason to believe any sanction other than dismissal is appropriate. See, e.g., Dungan v. Donahue, No.
12-CV-5139, 2014 WL 2941240, at *4 (E.D.N.Y. June 30, 2014) (adopting report and recommendation) (dismissing case for
failure to abide by court orders and noting “in light of plaintiff's ongoing unresponsiveness to the Court, no sanctions other than
dismissal would be effective. The record presents no reason to believe that a monetary fine or other sanction short of dismissal
would inspire in plaintiff the dedication to this litigation that he currently lacks[.] ... This case therefore presents an example of
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extreme circumstances warranting the harsh remedy of dismissal[.]”); Gordon v. Peralta, No. 10-CV-5148, 2012 WL 2530578,
at *2 (E.D.N.Y. June 11, 2012) (dismissing case for failure to abide by court orders and noting “the Court has tried the lesser
sanction of ... warning [plaintiff] of possible dismissal to no avail. Requiring defendant's counsel to appear again or imposing
lesser sanctions on plaintiff would be futile at this juncture.”) (citations and quotations omitted), report and recommendation
adopted, 2012 WL 2530106 (June 29, 2012).
C. Duration
The duration of Davis's noncompliance warrants dismissal. “[D]urations of time as brief as a few months have been held to
weigh in favor of dispositive sanctions.” Local Union No. 40 of the Int'l Ass'n of Bridge, Structural and Ornamental Iron
Workers v. Car-Win Constr., 88 F. Supp. 3d 250, 265 (S.D.N.Y. 2015) (collecting cases) (adopting report and recommendation).
“[P]eriods of six months or more weigh even more heavily toward such remedies.” Id. at 266 (collecting cases).
Davis has failed to comply with court orders since December 2018, beginning with his failure to appear at the December
20 pre-motion conference. (Dec. 20 Order). This order was issued more than 11 months ago. This extended period of non-
compliance is sufficient to warrant dismissal. See, e.g., Agiwal, 555 F.3d at 303 (affirming dismissal sanction where disregard
of magistrate judge's orders spanned approximately six months); Rodriguez v. Oak Room, No. 12-CV-2921, 2012 WL 5305551,
at *2 (S.D.N.Y. Oct. 23, 2012) (dismissing after period of non-compliance of “more than five months”).
D. Notice
*6 Davis has received sufficient notice to justify dismissal of his claims. “[T]he Second Circuit has repeatedly upheld dismissal
as an appropriate sanction where the non-compliant parties were warned of the possibility.” Local Union No. 40, 88 F. Supp.
3d at 266 (quotations omitted). Davis was warned three times that failure to appear or comply with court orders could result in
dismissal. (See Dec. 20 Order (“Plaintiff must personally appear at the conference. If he fails to do so, there may be consequences
to his case.... Plaintiff's claims may be dismissed with prejudice.”); Jan. 11 Order (“sanction[s] may be imposed including
dismissal of his case”); Oct. 23 Order (“If plaintiff fails to respond to this order to show cause, the Court will grant the pending
motion and dismiss the action with prejudice for failure to prosecute.”)). These orders were personally served on Davis. (Service
Aff. of Dec. 20 Order; Service Affs. of Jan. 11 Order; Oct. 23 Entry).
This notice is sufficient to permit dismissal. 4 See, e.g., Cadet v. ADP, Inc., No. 11-CV-3240, 2013 WL 6058918, at *8 (E.D.N.Y.
Nov. 14, 2013) (adopting report and recommendation) (“Plaintiff has been explicitly warned ... that his case would be dismissed
if he failed to appear for court conferences.”); Martin v. Metro. Museum of Art, 158 F.R.D. 289, 292–93 (S.D.N.Y. 1994)
(adopting report and recommendation) (finding it “clear,” after one warning by the court, that “plaintiff received adequate notice
that his failure [to comply with a court order] would result in dismissal”).
All four factors discussed above, therefore, warrant dismissal with prejudice of Davis's claims, pursuant to Rule 37(b)(2)(A)
(v), for his violations of Rules 16(f)(1)(A) and 16(f)(1)(C).
II. Dismissal with Prejudice for Failure to Prosecute
There is a separate basis to dismiss Davis's claims—his failure to prosecute his case. The City has moved to dismiss Davis's
claims pursuant to Rule 41(b), (Apr. Mot. at 3; Aug. Mot. at 2), which provides that “a defendant may move to dismiss the
action or any claim against it” “[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules] or a court order,” Fed.
R. Civ. P. 41(b). “A dismissal for failure to prosecute is committed to the court's sound discretion,” and such a dismissal may
be with prejudice. Jin Fang Luo, 2019 WL 360099, at *2; see, e.g., Kaur v. Royal Arcadia Palace, Inc., No. 05-CV-4725,
2007 WL 4276837, at *3 (E.D.N.Y. Nov. 30, 2007) (adopting report and recommendation) (dismissing plaintiff's claims with
prejudice under Rule 41(b)).
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Courts in this Circuit consider five factors when deciding whether to grant a defendant's motion to dismiss under Rule 41(b)
for failure to prosecute:
(1) the duration of the plaintiff's failure to comply with the court order, (2) whether 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.
Jin Fang Luo, 2019 WL 360099, at *2 (citing United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004));
see also Lopa v. Safeguard Props. Mgmt., LLC, No. 14-CV-3324, 2018 WL 3019875, at *1 (E.D.N.Y. June 18, 2018) (adopting
report and recommendation). These factors overlap with many of the factors under a Rule 37(b) dismissal. “Because of the
substantial overlap between the factors commonly used to decide whether to dismiss an action under Rule 41(b) and under
Rule 37(b)(2)(A), [there is] no need to repeat [the] discussion of redundant factors in detail.” Dungan, 2014 WL 2941240, at
*6. The Court therefore proceeds to discuss only the third and fourth factors in this analysis. See Lopa, 2018 WL 3019875,
at *2 (dismissing claims under Rules 16(f) and 37 and addressing the third and fourth factors of the Rule 41 analysis for the
sake of completeness).
*7 As to the third factor—prejudice to defendants—courts have found dismissal appropriate “when a party has become
completely inaccessible, as inaccessibility strongly suggests that [plaintiff] is not diligently pursuing [his] claim.” Caussade
v. United States, 293 F.R.D. 625, 630 (S.D.N.Y. 2013) (quotations omitted). “Where a plaintiff has become inaccessible for
months at a time, courts presume prejudice.” Id.; see, e.g., Dong v. United States, No. 02-CV-7751, 2004 WL 385117, at *3
(S.D.N.Y. Mar. 2, 2004) (“[T]he very fact that Dong has been inaccessible for the last two months—without notifying the Court,
the Government, or the Pro Se Office of a change of address—strongly suggests that he is not diligently pursuing this claim.
Dong's totally unexplained disappearance is manifestly unreasonable and therefore presumptively prejudices the Government.”)
(citations omitted).
Davis's repeated failure to attend hearings and failure to comply with court orders since December 2018 has presumptively
prejudiced the City. The City has been under the spectre of liability for over two years, a period in which the entire discovery
period has elapsed without Plaintiff serving a single discovery demand. Evidence is likely stale, and the City has had no ability—
because of Davis's prolonged absence—of deposing Davis or otherwise challenging his allegations. At this point, the prejudice
from the pending, but still nascent, litigation is substantial and justifies dismissal. See, e.g., Lopa, 2018 WL 3019875, at *2
(“Defendants’ inability to collect information that would enable them to determine the viability of potential defenses and/or
arrive at a view as to their potential exposure would certainly prejudice them.”); Schwed v. Gen. Elec. Co., 193 F.R.D. 70, 72
(N.D.N.Y. 2000) (“Because plaintiffs’ chronic inaction has interfered with defendant's attempt to prepare its case, and because
further delay will exacerbate these hardships, the Court concludes that defendant will indeed be prejudiced by further delay.”).
As to the fourth factor—balance of interests—the Court must consider a plaintiff's due process interests against its own interest
in managing the docket. Dungan, 2014 WL 2941240, at *6. “In deciding this factor, the Court must strike a ‘balance between
district court calendar congestion and the plaintiff's right to an opportunity to be heard.’ The efficient administration of justice
requires that a court effectively manage its docket, guaranteeing that its cases progress with appropriate speed.” Langdell v.
Hofmann, No. 05-CV-174, 2006 WL 3813599, at *4 (D. Vt. Dec. 27, 2006) (quoting Drake, 375 F.3d at 257) (citations omitted).
The Court has repeatedly invested its time addressing Davis's failures to appear and has given him several opportunities to
pursue his claims. The course of conduct—or the lack thereof—in prosecuting the case therefore weighs in favor of dismissal.
See, e.g., Dungan, 2014 WL 2941240, at *6 (“[B]alancing the Court's interest in managing its docket against plaintiff's interest
in receiving a fair chance to be heard militates in favor of dismissal. It is not the duty of the Court ... to contact plaintiffs and
to urge or require them to prosecute this action. By abandoning any effort to prosecute his case, plaintiff has demonstrated that
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he has no interest in being heard.”) (citations and quotations omitted); see also Langdell, 2006 WL 3813599, at *5 (“Because
Langdell has made no effort over the last year to prosecute his case, it is unfair to the numerous other litigants awaiting the
Court's attention to permit this suit to remain on the Court's docket.”) (citations omitted).
Therefore, in addition to dismissal under Rules 16(f) and 37(b)(2)(A)(v), the City's motions should be granted, and Davis's
claims should be dismissed with prejudice for failure to prosecute.
CONCLUSION
*8 For the reasons stated above, the Court respectfully recommends that the City's motions to dismiss be granted and Davis's
claims be dismissed with prejudice for failure to abide by court orders and failure to prosecute.
Any objections to the Report and Recommendation above must be filed with the Clerk of the Court within 14 days of service
of this report. Failure to file objections within the specified time waives the right to appeal any judgment or order entered by
the District Court in reliance on this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); Caidor
v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) (“[F]ailure to object timely to a magistrate[ ] [judge's] report operates as
a waiver of any further judicial review of the magistrate[ ] [judge's] decision.”).
The City shall serve a copy of this Report and Recommendation on Davis at his last known address, and to any other electronic
contact information known to it, and file proof of such service in the record within 14 days of the date of this Order.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 7842400
Footnotes
1 Defendant's second motion to dismiss is virtually identical to its first motion to dismiss, except that it recites Davis's
continued inactivity, lack of communication, and failure to respond to Defendant's first motion.
2 The record is also devoid of any evidence that Plaintiff has served any discovery demands.
3 Pro se litigants are afforded leeway when it comes to litigation noncompliance; however, “[t]he sanction of dismissal
‘may be imposed even against a plaintiff who is proceeding pro se, so long as warning has been given that noncompliance
can result in dismissal.’ ” Johnson, 2015 WL 12999661, at *1 (quoting Valentine, 29 F.3d at 49); see Agiwal, 555 F.3d at
302 (“Pro se litigants, though generally entitled to special solicitude before district courts, are not immune to dismissal
as a sanction for noncompliance with discovery orders.”) (citations and quotations omitted). Despite his status as a pro
se litigant, Davis's claims should still be dismissed because he has not given this Court any indication that he intends
to cure his failures to obey court orders.
4 None of the orders sent to Davis were returned undeliverable. Even if Davis may have moved, without providing any
forwarding address or means of contact, he would not be entitled to continue with his case. “[I]t is plaintiff's obligation
to notify the Court of any change in address.” Gordon, 2012 WL 2530578, at *2; see, e.g., Islam v. Athlete's Needs, Inc.,
No. 18-CV-1562, 2018 WL 5781228, at *1 (E.D.N.Y. Sept. 5, 2018) (finding the warning adequate to justify dismissal
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when order was sent to plaintiff and never returned as undelivered), report and recommendation adopted, 2018 WL
5777020 (Nov. 1, 2018).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Hernandez v. Tuck, Not Reported in Fed. Supp. (2023)
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2023 WL 1109663
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Luis Carlos Gutierrez HERNANDEZ, as Administrator, et al., Plaintiffs,
v.
Darren TUCK, et al., Defendants.
No. 22-CV-05242 (PMH)
|
Signed January 30, 2023
Attorneys and Law Firms
Aaron Michael Schiffrik, Goldberg Segalla LLP, Syracuse, NY, for Defendants.
ORDER
PHILIP M. HALPERN, United States District Judge:
*1 On October 26, 2022, in light of Plaintiffs’ failure to appear through counsel in this action, failure to appear at the initial
conference, and failure to take any steps in the action since the matter was removed to this Court, the Court ordered Plaintiffs
to, within 30 days of the order, either have counsel file a notice of appearance, or, if they could establish an exception exists in
this case to the general rule that representative parties may not appear pro se, to submit a mailing address, telephone number,
and email address to the Court. (Doc. 12). The Court warned that failure to comply with its order may result in dismissal of
this action for want of prosecution under Federal Rule of Civil Procedure 41(b). (Id.). Plaintiffs did not appear in this action
through counsel, establish any exception to the general rule that representative parties may not appear pro se, provide any contact
information for Plaintiffs, or otherwise communicate with the Court. On January 17, 2023, Defendants filed a letter requesting
that the Court dismiss this action under Rule 41(b) in light of Plaintiffs’ failure to comply with the Court's order. (Doc. 14).
Plaintiffs, to date, have not complied with the Court's order nor have they responded to Defendants’ letter.
The Second Circuit has recognized that Federal Rule of Civil Procedure 41(b), in combination with “the inherent power of a
court 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); see also West v. City of New York, 130 F.R.D. 522, 524 (S.D.N.Y. 1990) (“[T]he Supreme Court has recognized
the inherent power of a district judge to dismiss a case for the plaintiff's failure to prosecute.”); Lewis v. Hellerstein, No. 14-
CV-7886, 2015 WL 4620120, at *3-4 (S.D.N.Y. July 29, 2015); Haynie v. Dep't of Corr., No. 15-CV-4000, 2015 WL 9581783,
at *2 (S.D.N.Y. Dec. 30, 2015).
Although the Second Circuit has concluded that dismissal under Rule 41(b) is a “harsh remedy to be utilized only in extreme
situations,” LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (quoting Theilmann v. Rutland Hosp., Inc.,
455 F.2d 853, 855 (2d Cir. 1972)), dismissal may be necessary “to prevent undue delays in the disposition of pending cases
and to avoid congestion in the calendars of the District Courts,” Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962). In
determining whether to dismiss an action for failure to prosecute under Rule 41(b), the Second Circuit has directed district
courts to consider five factors:
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(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.
*2 Jefferson v. Webber, 777 F. App'x 11, 14 (2d Cir. 2019) (quoting Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014)
(alteration in original)). No single factor is dispositive. Nita v. Connecticut Dep't of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994).
Ultimately, the record must be viewed “as a whole” in order to determine whether dismissal is warranted. United States ex rel.
Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004) (citing Peart v. City of New York, 992 F.2d 458, 461 (2d Cir. 1993)).
The Court finds that dismissal of Plaintiffs’ action for failure to prosecute under Rule 41(b) is proper in this case. As to the
first factor, Plaintiffs failed to comply with two Court orders directing the filing of a proposed civil case discovery plan and
scheduling order (Docs. 9, 11); failed to appear at the scheduled conference (see Doc. 12); failed to comply with the Court's
order issued on October 26, 2022 (id.); and failed to take any steps to advance this action since it was removed to this Court
on June 22, 2022 (Doc. 1). Indeed, Plaintiffs have not communicated in any way with the Court ever—the matter was removed
by Defendants from State Court and no attorney ever appeared in this Court on Plaintiffs’ behalf. (Id.). Plaintiffs’ failure to
comply with the Court's orders over a period of at least five months is sufficient to support dismissal. See, e.g., Balderramo
v. Go New York Tour Inc., No. 15-CV-02326, 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.”); Antonios A. Alevizopoulos & Assocs., Inc.
v. Comcast Int'l Holdings, Inc., No. 99-CV-09311, 2000 WL 1677984, at *2 (S.D.N.Y. Nov. 8, 2000) (collecting cases and
dismissing case at bar for four month delay).
Second, Plaintiffs were explicitly warned that failure to comply with the Court's order could result in dismissal of this action.
The October 26, 2022 order specifically warned that, “[i]f plaintiffs fail to have new counsel file a notice of appearance within 30
days of the date of this order or otherwise fail to comply with this order, the Court may dismiss this action for want of prosecution
under Federal Rule of Civil Procedure 41(b).” (Doc. 12 at 2). Even if the Court had not warned Plaintiffs that the case might be
dismissed, a defendant's motion to dismiss for failure to prosecute has been held to put the plaintiff on notice that his continued
failure to prosecute the action could result in dismissal. See, e.g., Lopez v. Cath. Charities of Archdiocese of New York, No. 00-
CV-01247, 2001 WL 50896, at *4 (S.D.N.Y. Jan. 22, 2001). Here, Plaintiffs also received notice through Defendants’ request
to dismiss this action under Rule 41(b), which was served on Plaintiffs as well as Plaintiffs’ former counsel. (Docs. 14, 15).
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 Court may presume that defendants are prejudiced where a plaintiff that is required to obtain counsel “does not heed
its duty of due diligence to move its case forward, by failing to obtain counsel.” U.S. ex rel. Reliable Const. PM, Inc. v. Land
Frog, Inc., No. 13-CV-07351, 2015 WL 740034, at *3 (E.D.N.Y. Feb. 20, 2015) (internal quotation marks omitted). Because
Plaintiffs have made no effort to contact the Court and the administrator-plaintiff cannot proceed pro se, 1 there is good reason
to conclude that the delay will continue, and prejudice to Defendants can be presumed.
*3 Fourth, the Court has balanced the need to alleviate court congestion with a party's right to due process and determined
that dismissal is appropriate. “[N]oncompliance with court orders undermines the ability of the Court to manage its docket and
dispense justice to all litigants in an expeditious manner.” Mahoney v. City of New York, No. 12-CV-6717, 2013 WL 5493009,
at *2 (S.D.N.Y. Oct. 1, 2013). Plaintiffs were twice directed to prepare and file a proposed civil case discovery plan and failed
to do so (Docs. 9, 11); failed to appear at the scheduled conference (see Doc. 12); failed to comply with the Court's order issued
on October 26, 2022 (id.); and failed to take any steps to advance this action since it was removed to this Court on June 22,
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2022 (Doc. 1). There is no reason to believe that Plaintiffs intend to pursue this action any further in light of their failure to
participate in this action at any time since it was removed to this Court.
The Court has further “considered the possibility of a less drastic sanction than dismissal.” Kaplan v. Hezbollah, 844 F. App'x
459, 460 (2d Cir. 2021). Where, as here, a plaintiff appears to have abandoned the litigation, dismissal is appropriate. See Mena
v. City of New York, No. 15-CV-03707, 2017 WL 6398728, at *2 (S.D.N.Y. Dec. 14, 2017) (finding dismissal under Rule 41(b)
proper because, inter alia, “the Court is sufficiently persuaded that Plaintiff has abandoned this matter”); Max Impact, LLC v.
Sherwood Group, Inc., No. 09-CV-00902, 2013 WL 4451301, at *1 (S.D.N.Y., Aug. 19, 2013) (dismissing case for failure to
prosecute “[b]ecause [plaintiffs] cannot prosecute this action pro se and have not retained new counsel within the time allotted”).
Based upon the foregoing, and viewing the record in its entirety, the Court finds that dismissal of this action under Federal Rule
of Civil Procedure 41(b) is appropriate. Accordingly, this action is DISMISSED without prejudice.
Defendants are directed to: (1) serve a copy of this order on Plaintiffs’ counsel; (2) mail a copy of this order to Plaintiffs at
their last known address.
All Citations
Not Reported in Fed. Supp., 2023 WL 1109663
Footnotes
1 As set forth in the Court's October 26, 2022 order, “the general rule in federal court forbids representative parties, such
as guardians or executors, from appearing pro se.” Taylor v. Henderson, No. 99-CV-04941, 2002 WL 14423, at *3
(S.D.N.Y. Jan. 4, 2002); Mandeville v. Wertheimer, No. 01-CV-04469, 2002 WL 432689, at *2 (S.D.N.Y. Mar. 19, 2002)
(collecting cases); see also Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997) (“an administratrix or executrix of
an estate may not proceed pro se when the estate has beneficiaries or creditors other than the litigant”). The Court gave
Plaintiffs an opportunity to establish that an exception to this general rule exists in this case. (Doc. 12). Plaintiffs did
not do so.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01109-BKS-MJK Document 21 Filed 11/21/25 Page 24 of 55

King v. Demars, Not Reported in Fed. Supp. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4446654
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Sharif KING, Plaintiff,
v.
Stephanie DEMARS, Defendant.
9:21-cv-1202 (BKS/ML)
|
Signed July 11, 2023
Attorneys and Law Firms
Plaintiff pro se: Sharif King, 18-A-4833, Five Points Correctional Facility, Caller Box 119, Romulus, NY 14541.
For Defendant: Letitia A. James, Attorney General of the State of New York, Rachael Ouimet, Assistant Attorney General, of
Counsel, The Capitol, Albany, NY 12224.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge:
*1 Plaintiff Sharif King filed this action pro se pursuant to 42 U.S.C. § 1983 asserting that Defendant Stephanie Demars
retaliated against him, in violation of the First Amendment, during his incarceration at Five Points Correctional Facility. (Dkt.
No. 1). On February 28, 2023, Defendant filed a motion to dismiss the Complaint with prejudice under Federal Rules of Civil
Procedure 41(b) and 37(b)(2)(v) for failure to prosecute and failure to comply with the Court's discovery orders. (Dkt. No. 52).
Plaintiff did not file a response. This matter was assigned to United States Magistrate Judge Miroslav Lovric who, on June 15,
2023, issued a Report and Recommendation recommending that Defendant's motion be granted and that Plaintiff's Complaint be
dismissed with prejudice under Rule 41(b) and, in the alternative, under Rule 37 “based on his failure to prosecute and comply
with this Court's orders and local rules of practice.” (Dkt. No. 57, at 13). Magistrate Judge Lovric further recommended that
Defendant's request for sanctions be granted and that Plaintiff be sanctioned costs in the amount of $88.00 in connection with
his failure to appear for deposition. (Id.). Magistrate Judge Lovric advised the parties that under 28 U.S.C. § 636(b)(1), they
had fourteen days within which to file written objections to the report, and that the failure to object to the report within fourteen
days would preclude appellate review. (Id. at 14).
No objections to the Report-Recommendation have been filed. As no objections to the Report-Recommendation have been
filed, and the time for filing objections has expired, the Court reviews the Report-Recommendation for clear error. See Petersen
v. Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory committee's note to 1983 amendment.
The Report-Recommendation set forth the applicable legal standards and analyzed the requisite five factors a court must consider
in determining whether to dismiss an action under Rule 41(b). (Dkt. No. 57, at 8–13) (quoting Lucas v. Miles, 84 F.3d 532,
535 (2d Cir. 1996)). Specifically, Magistrate Judge Lovric outlined the numerous times the Court advised Plaintiff that failure
to update his address, comply with discovery directives, or appear for deposition could result in the imposition of sanctions
under Rules 37 and 41, including dismissal of the case. (Id. at 2–6 (citing Dkt. Nos. 8, 16, 29, 33, 35, 37, 40, 44, 48; Dec. 21,
2022 Minute Entry; Jan. 24, 2023 Minute Entry)). Moreover, as Defendant's motion expressly seeks dismissal with prejudice,
(Dkt. No. 52-1, at 3, 11; see also Dkt. No. 52-3 (Declaration of Service)), Plaintiff was provided notice that failure to prosecute
or comply with discovery directives may result in dismissal with prejudice. See, e.g., Hernandez v. Tuck, No. 22-cv-05242,
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King v. Demars, Not Reported in Fed. Supp. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
2023 WL 1109663, at *2, 2023 U.S. Dist. LEXIS 15507 (S.D.N.Y. Jan. 30, 2023) (explaining that “a defendant's motion to
dismiss for failure to prosecute has been held to put the plaintiff on notice that his continued failure to prosecute the action
could result in dismissal (citing Lopez v. Cath. Charities of Archdiocese of New York, No. 00-CV-01247, 2001 WL 50896, at
*4, 2001 U.S. Dist. LEXIS 387 (S.D.N.Y. Jan. 22, 2001))). Magistrate Judge Lovric also considered that Plaintiff has failed
to provide an updated address to the Court or Defendant for more than five months, (Dkt. No. 57, at 11), found the need “to
alleviate congestion on the Court's docket” outweighed Plaintiff's interest in receiving a further opportunity to be heard, (id.),
and determined that less-drastic sanctions would ineffective and futile given that an order imposing such sanctions would likely
“never reach Plaintiff due to his failure to provide the Court with a current address,” (id. at 12). The Court further notes that
Defendant is likely to be prejudiced by further delay given that this case has been pending for more than eighteen months and,
to date, Defendant has been unable to depose Plaintiff or otherwise complete discovery. The Court therefore finds no clear error
in Magistrate Judge Lovric's recommendation that Defendant's motion for dismissal for failure to prosecute be granted. Finally,
the Court has reviewed for clear error Magistrate Judge Lovric's careful consideration of Defendant's request for sanctions
in connection with Plaintiff's failure to appear for deposition and recommendation that a modest award of $88.00 in costs be
imposed, and has found none. Accordingly, the Report-Recommendation is adopted in its entirety.
*2 For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 57) is ADOPTED in its entirety; and it is further
ORDERED that Defendant's motion to dismiss for failure to prosecute (Dkt. No. 52) is GRANTED to the extent that it seeks
dismissal of the Complaint and that Plaintiff be sanctioned costs in the amount of $88.80, and DENIED to the extent that it
requests that Plaintiff be sanctioned costs in an amount greater than $88.80; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED with prejudice, pursuant to Fed. R. Civ. P. 41(b) and in
the alternative, pursuant Fed. R. Civ. P. 37, based on his failure to prosecute and comply with this Court's orders and local rules
of practice; and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 4446654
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01109-BKS-MJK Document 21 Filed 11/21/25 Page 26 of 55

Lau v. NYSARC Trust Service, Inc., Not Reported in Fed. Supp. (2024)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 1723587
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Gilbert LAU, Plaintiff,
v.
NYSARC TRUST SERVICE, INC. et al., Defendants.
1:20-cv-801 (BKS/CFH)
|
Signed April 18, 2024
Attorneys and Law Firms
Plaintiff pro se: Gilbert Lau, New York, New York 10028.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge:
I. INTRODUCTION
*1 Plaintiff pro se Gilbert Lau brought this action asserting claims against Defendants NYSARC Trust Service, Inc.
(“NYSARC”), Warren H. Heillbronner, Dorothy Zyskowski, Alison Wilkinson, Candace Johnstone, and Jamie Harla arising
from, among others, Title III of the Americans with Disabilities Act and New York State Human Rights Law. (Dkt. No. 26.)
Defendants NYSARC, Heillbronner, Johnstone, and Wilkinson moved to dismiss under Rule 41(b) of the Federal Rules of Civil
Procedure, (Dkt. No. 99), and the Court granted the motion and dismissed those Defendants, see Lau v. NYSARC Tr. Serv., Inc.,
No. 20-cv-801, 2024 WL 308519, at *7, 2024 U.S. Dist. LEXIS 13932 (N.D.N.Y. Jan. 26, 2024). Presently under consideration
is dismissal of Plaintiff's action under Rule 41(b) for failure to prosecute, failure to comply with orders of the Court, and failure
to notify the Court of a change of address.
II. BACKGROUND
The Court assumes familiarity with the procedural background of the case through the dismissal of Defendants NYSARC,
Heillbronner, Johnstone, and Wilkinson as recounted in the Court's January 6, 2024 memorandum-decision and order, see Lau,
2024 WL 308519, at *1–3, 2024 U.S. Dist. LEXIS 13932, and Magistrate Judge Hummel's Report-Recommendation, (Dkt.
No. 29, at 1–3).
On January 6, 2024, the Court granted Defendants NYSARC, Heillbronner, Johnstone, and Wilkinson's motion to dismiss
pursuant to Federal Rule of Civil Procedure 41(b) and dismissed those Defendants. See Lau, 2024 WL 308519, at *7, 2024 U.S.
Dist. LEXIS 13932. The Court further ordered that Plaintiff file “proper addresses for service of Defendants Zyskowski and
Harla, or, if he is unable to do so, an affidavit describing in detail the steps Plaintiff has taken to ascertain the proper addresses of
these Defendants” and indicated that “failure to comply ... will result in dismissal of this action under Rule 41(b) of the Federal
Rules of Civil Procedure for failure to prosecute and failure to comply with an order of the Court or dismissal under Rule 4(m)
for failure to serve the remaining two Defendants.” (Id.)
On February 1, 2024, Plaintiff filed a letter motion, which the Court construed as a second request for an extension of time to
respond to Defendants NYSARC, Heillbronner, Johnstone, and Wilkinson's motion to dismiss. (Dkt. Nos. 105, 106.) The Court
denied Plaintiff's request, noting that Plaintiff had still not complied with the Court's prior order to file an affidavit demonstrating
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Lau v. NYSARC Trust Service, Inc., Not Reported in Fed. Supp. (2024)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
good cause for his untimely request. (Dkt. No. 106.) The Court again ordered that Plaintiff file proper addresses for service of
Defendants Zyskowski and Harla or an affidavit describing in detail the steps Plaintiff has taken to ascertain the proper addresses
of those Defendants, and the Court reiterated that “failure to comply ... will result in dismissal of this action under Rule 41(b)
of the Federal Rules of Civil Procedure for failure to prosecute and failure to comply with an order of the Court or dismissal
under Rule 4(m) for failure to serve the remaining two Defendants.” (Id.)
*2 On February 23, 2024, Plaintiff filed a letter motion requesting an extension of time to comply with the Court's February 6,
2024 order and for permission to file a motion for reconsideration. (Dkt. No. 107.) Plaintiff also filed medical records indicating
that he had been hospitalized in Louisiana for inpatient psychiatric treatment from February 10, 2024, to February 19, 2024.
(Dkt. No. 108.) On March 29, 2024, the Court denied Plaintiff's request for permission to file a motion for reconsideration as
untimely and lacking a basis for reconsideration and because Plaintiff had still not complied with the Court's order that Plaintiff
file an affidavit showing good cause for his prior untimely request for an extension of time to respond to the motion to dismiss.
(Dkt. No. 110.) However, in light of Plaintiff's representation that he had been hospitalized during the period in which the Court
had ordered Plaintiff to file proper addresses for service of Defendants Zyskowski and Harla or an affidavit demonstrating the
steps Plaintiff has taken to ascertain the proper addresses of those Defendants, the Court granted a final extension to comply with
that order. (Id.) The Court ordered that Plaintiff file, by April 12, 2024, proper addresses for service of Defendants Zyskowski
and Harla, and the Court repeated its warning that “failure to comply ... will result in dismissal of this action under Rule 41(b)
of the Federal Rules of Civil Procedure for failure to prosecute and failure to comply with an order of the Court or dismissal
under Rule 4(m) for failure to serve the remaining two Defendants.” (Id.) The Court also noted that Plaintiff had represented
that he had been hospitalized in Louisiana, and the medical records reflected an address for him in Louisiana, (Dkt. No. 108, at
1), but Plaintiff's address on the docket in this action is in New York, and Plaintiff's address in a different case that he has filed
with the Court, Case No. 22-cv-436, is an address in Shreveport, Louisiana, where mail has been returned as not deliverable.
(Dkt. No. 110.) The Court therefore ordered Plaintiff to notify the Court of his current address by April 12, 2024, and warned
Plaintiff that “[f]ailure to do so will result in dismissal of Plaintiff's action.” (Id.)
Plaintiff has not filed anything on the docket in response to the Court's March 29, 2024 order.
III. DISCUSSION
A. Standard of Review
Under Rule 41(b) of the Federal Rules of Civil Procedure, “[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules
of Civil Procedure] or a court order,” a court may dismiss the action. Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626,
629–30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); see also N.D.N.Y. L.R. 41.2(a) (“Whenever it appears that the plaintiff has failed
to prosecute an action or proceeding diligently, the assigned judge may order it dismissed.”). 1 While involuntary dismissal is
“ ‘a harsh remedy [which] is appropriate only in extreme situations,’ ” a court's “authority to invoke dismissal for failure to
prosecute is ‘vital to the efficient administration of judicial affairs and provides meaningful access for other prospective litigants
to overcrowded courts.’ ” Peters-Turnbull v. Bd. of Educ. of City of New York, 7 F. App'x 107, 109 (2d Cir. 2001) (summary
order) (first quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996); and then quoting Lyell Theatre Corp. v. Loews Corp., 682
F.2d 37, 42 (2d Cir. 1982)). “[The Second Circuit] ha[s] upheld ‘[t]he severe sanction of dismissal with prejudice ... even against
a plaintiff who is proceeding pro se, so long as a warning has been given that noncompliance can result in dismissal.’ ” Baba v.
Japan Travel Bureau Int'l, Inc., 111 F.3d 2, 5 (2d Cir. 1997) (per curiam) (quoting Valentine v. Museum of Modern Art, 29 F.3d
47, 50 (2d Cir. 1994) (per curiam)); see also Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (per curiam).
When determining whether dismissal under Rule 41(b) is appropriate, a court must consider the following factors:
whether: (1) the plaintiff's failure to prosecute caused a delay of significant duration; (2) plaintiff was
given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by
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Lau v. NYSARC Trust Service, Inc., Not Reported in Fed. Supp. (2024)
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further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's
right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser
sanctions.
U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). None of these factors is dispositive. See Lopez v.
Smurfit-Stone Container Enter., Inc., 289 F.R.D. 103, 104–05 (W.D.N.Y. 2013).
B. Analysis
Considering the Drake factors, the Court concludes that dismissal under Rule 41(b) is warranted under the circumstances of
this case. With respect to delay, as the Court noted in its January 26, 2024 decision, this case has been pending before the Court
for over three and a half years. The United States Marshals Service returned summonses unexecuted as to all Defendants on
January 20, 2022. (Dkt. No. 35.) 2 On January 21, 2022, the Court noted that the “US Marshals Service attempted service on
the named Defendants over thirty days ago[,] [and] [s]ervice has been unsuccessful.” (Dkt. No. 36.) Summonses were reissued.
(Dkt. No. 37.) On February 24, 2022, summonses as to Defendants Harla and Zyskowski, among others, were again returned
unexecuted, (Dkt. Nos. 47, 49). The notices of unexecuted service as to Defendants Zyskowski and Harla indicated that these
Defendants no longer worked at NYSARC when service was attempted. (Dkt. Nos. 47, 49.) The attempted service on February
11, 2022, (Dkt. Nos. 47, 49), remains the last attempt to serve Defendants Zyskowski and Harla.
*3 The Court ordered that Plaintiff file addresses for Defendants Zyskowski and Harla or an affidavit demonstrating the steps
Plaintiff has taken to ascertain the proper addresses of Defendants Zyskowski and Harla on January 26, 2024, see Lau, 2024 WL
308519, at *7, 2024 U.S. Dist. LEXIS 13932, nearly four months ago. The Court repeated its order that Plaintiff file addresses
for Defendants Zyskowski and Harla or an affidavit demonstrating the steps Plaintiff has taken to ascertain the proper addresses
of Defendants Zyskowski and Harla on February 6, 2024, (Dkt. No. 106), and March 29, 2024, granting Plaintiff an extension
to do so on the latter occasion, (Dkt. No. 110). To date, Defendants Zyskowski and Harla have not been served and have not
appeared in this action, and Plaintiff has not filed anything responsive to the Court's orders as to Defendants Zyskowski and
Harla. Nor has Plaintiff complied with the Court's order directing him to notify the Court of his current address. 3
Plaintiff's failure to comply with orders of the Court has caused a significant delay for which Plaintiff is responsible. See Spencer
v. Doe, 139 F.3d 107, 113 (2d Cir. 1998) (noting that there are two aspects to the first Drake factor: “(1) that the failures were
those of the plaintiff, and (2) that these failures were of significant duration”); see also Melendez v. City of New York, No. 12-
cv-9241, 2014 WL 6865697, at *2, 2014 U.S. Dist. LEXIS 168859 (S.D.N.Y. Dec. 4, 2014) (Nathan, J.) (finding that the first
Drake factor favors dismissal under Rule 41(b) where the plaintiff did not comply with court orders directing the plaintiff to
serve defendants and to provide the court with an updated address). Therefore, this factor weighs in favor of dismissal.
Second, Plaintiff was given multiple warnings that failure to comply with these court orders would result in dismissal. See Lau,
2024 WL 308519, at *7, 2024 U.S. Dist. LEXIS 13932; (Dkt. Nos. 106, 110). Therefore, this factor weighs in favor of dismissal.
Third, the remaining Defendants, Defendants Zyskowski and Harla, have not yet been served, which limits potential prejudice
to them. See Bekka v. Nash, No. 19-cv-6041, 2020 WL 2225379, at *2, 2020 U.S. Dist. LEXIS 81790 (S.D.N.Y. Apr. 13, 2020),
report and recommendation adopted, 2020 WL 2216268, 2020 U.S. Dist. LEXIS 81155 (S.D.N.Y. May 7, 2020). Even so,
“[p]rejudice may be presumed as a matter of law in certain cases, but the issue turns on the degree to which the delay was lengthy
and inexcusable.” Drake, 375 F.3d at 256 (citing Lyell, 682 F.2d at 43). This case has been pending for over three and a half
years, and significant time has passed since the incident underlying Plaintiff's claims. “ ‘[F]ading memories with the passage
of time’ may result in ‘unfair prejudice’ to Defendants if the action is permitted to continue.” Kilgore v. City of Syracuse Police
Dep't, No. 21-cv-82, 2021 WL 4690863, at *3, 2021 U.S. Dist. LEXIS 194997 (N.D.N.Y. Aug. 3, 2021) (citation omitted),
report and recommendation adopted, 2021 WL 4624487, 2021 U.S. Dist. LEXIS 193688 (N.D.N.Y. Oct. 7, 2021). And while
Plaintiff has represented that he was hospitalized from February 10, 2024, to February 19, 2024, Plaintiff has provided no
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Lau v. NYSARC Trust Service, Inc., Not Reported in Fed. Supp. (2024)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
justification for the Court to excuse his failure to comply with court orders before and after that period. Therefore, this factor
weighs slightly in favor of dismissal.
Fourth, as discussed in the January 26, 2024 decision, the Court is mindful of Plaintiff's right to be heard, but because he has
continued to disobey orders from the Court by failing to file addresses for Defendants Zyskowski and Harla or an affidavit
demonstrating the steps Plaintiff has taken to ascertain the proper addresses of Defendants Zyskowski and Harla and by failing
to notify the Court of his current address, the Court finds that the need to alleviate calendar congestion outweighs Plaintiff's
right to a day in court. While “[t]here must be compelling evidence of an extreme effect on court congestion before a litigant's
right to be heard is subrogated to the convenience of the court,” Lucas, 84 F.3d at 535–36, the Court must also consider “fairness
to other litigants, whether in the same case or merely in the same court as competitors for scarce judicial resources,” Rubin v.
Abbott Lab'ies, 319 F.R.D. 118, 121 (S.D.N.Y. 2016) (quoting Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 668 (2d Cir.
1980)). Given the Court's full calendar and the opportunities—of which he did not avail himself—that Plaintiff was afforded to
allow service of the remaining Defendants and apprise the Court of his current address, the Court finds that this factor weighs
slightly in favor of dismissal. See Melendez, 2014 WL 6865697, at *3, 2014 U.S. Dist. LEXIS 168859 (quoting Sanders v. Does,
No. 05-cv-7005, 2008 WL 2117261, at *4, 2008 U.S. Dist. LEXIS 40515, at *13–14 (S.D.N.Y. May 15, 2008)) (Sullivan, J.)
(finding the fourth Drake factor did not strongly weigh in favor of dismissal because the failure to prosecute was “silent and
unobtrusive” rather than “vexatious and burdensome”).
*4 Finally, the Court has considered the efficacy of lesser sanctions and concludes that no sanction lesser than dismissal
is appropriate in these circumstances. In particular, monetary sanctions would be ineffective as Plaintiff, who is proceeding
in forma pauperis, would likely be unable to pay them, and they would therefore have limited deterrent purpose. Moreover,
Plaintiff has failed to provide the Court with a current address at which to reach him, and as the Court noted, Plaintiff's address
in a different case that he has filed with the Court is an address in Shreveport, Louisiana, where mail has been returned as not
deliverable. See Melendez, 2014 WL 6865697, at *3, 2014 U.S. Dist. LEXIS 168859. And the Court's repeated reminders that
Plaintiff's action will be dismissed have not caused him to proceed. See Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d
176, 178 (2d Cir. 2008); Melendez, 2014 WL 6865697, at *3, 2014 U.S. Dist. LEXIS 168859. Therefore, this factor weighs
in favor of dismissal.
In sum, having considered the five Drake factors, the Court concludes that dismissal of Plaintiff's remaining claims against
Defendants Zyskowski and Harla with prejudice pursuant to Federal Rule of Civil Procedure 41(b) is warranted.
IV. CONCLUSION
For these reasons, it is hereby
ORDERED that the third amended complaint, (Dkt. No. 26), as to Defendants Zyskowski and Harla is DISMISSED with
prejudice; and it is further
ORDERED that the Clerk of the Court is directed to close this case; and it is further
ORDERED that the Clerk of the Court is directed to serve a copy of this Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 1723587
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Lau v. NYSARC Trust Service, Inc., Not Reported in Fed. Supp. (2024)
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Footnotes
1 It is well settled that Rule 41(b) refers not only to failure to comply with the Federal Rules of Civil Procedure but also
the local rules of practice. See Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006).
2 Because Plaintiff is proceeding in forma pauperis, (Dkt. No. 11, at 1, 18), service was attempted by the United States
Marshals Service pursuant to 28 U.S.C. § 1915(d).
3 The Court notes that Plaintiff's February 2024 medical records from his hospitalization in Louisiana reflect an address
for him in Louisiana. (Dkt. No. 108.) And in another case Plaintiff filed in this district, he provided the Court with an
address in Shreveport, Louisiana, where mail has been returned as not deliverable. (See Lau v. Fauci, Case No. 22-
cv-436, Dkt. Nos. 53, 56.)
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01109-BKS-MJK Document 21 Filed 11/21/25 Page 31 of 55

Mack v. Wood, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 124297
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Brian MACK, Plaintiff,
v.
Ronald G. WOOD, II, Defendant.
9:17-cv-1146 (BKS/ATB)
|
Signed 01/13/2022
Attorneys and Law Firms
For Plaintiff: Michael D. Root, Cerio Law Offices, 407 S. Warren St., 5 th Fl., Syracuse, NY 13202.
For Defendant: Letitia James, Attorney General of the State of New York, Christopher J. Hummel, Lauren Rose Eversley, The
Capitol, Albany, NY 12224.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, United States District Judge:
I. INTRODUCTION
*1 Plaintiff Brian Mack brought this action against Sergeant Ronald G. Wood, II asserting claims under 42 U.S.C. § 1983
arising out of an incident on May 23, 2016 while Plaintiff was in custody at Clinton Correctional Facility. (Dkt. No. 1). On
December 14, 2021, the Court issued an Order to Show Cause directing Plaintiff to file a response by January 10, 2022, setting
forth why this case should not be dismissed for failure to prosecute and failure to comply with Court orders. (Dkt. No. 145).
Plaintiff did not respond to this Order. For the reasons set forth below, this action is dismissed under Rule 41(b) of the Federal
Rules of Civil Procedure for failure to prosecute and failure to comply with Court orders.
II. PROCEDURAL HISTORY 1
On March 26, 2021, the Court issued a text order resetting this case for trial on December 13, 2021. (Dkt. No. 107). On April
5, 2021, after a copy of this text order sent to Plaintiff at Marcy Correctional Facility was returned as undeliverable, the Court
issued a text order directing Plaintiff's counsel to “provide the Court with a status report as to Mr. Mack's current location by
April 12, 2021.” (Dkt. No. 111). In that text order the Court reminded Plaintiff “of his obligation to keep the Court and all counsel
advised of his current address.” (Id.). On April 7, 2021, Plaintiff's counsel submitted a status report, advising the Court that
Plaintiff was no longer in custody, and that Plaintiff was currently residing at an address in Bronx, New York. (Dkt. No. 112).
The parties filed trial submissions in late November and early December 2021. (Dkt. Nos. 119–137, 140). On December 6,
2021, Plaintiff's counsel filed an ex parte motion to withdraw. (Dkt. No. 141). Upon reviewing the motion to withdraw, the
Court issued an order on December 6, 2021, directing Plaintiff: (1) to call in for a telephone conference on December 8, 2021
at 9:30 a.m. to discuss the motion; and (2) to provide the Court with his current address and telephone number. (Dkt. No. 142).
The Court warned Plaintiff that “the failure to call into the conference and/or comply with the Orders of this Court may result
in the imposition of sanctions including dismissal of his action with prejudice.” (Id.). The Court further requested that the Court
Clerk call Plaintiff at his last known telephone number, 646-399-2995, and read the text order to Plaintiff. (Id.). That day, the
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Mack v. Wood, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
Court Clerk called this telephone number; however, the individual who answered the phone said that Plaintiff could not be
reached at that phone number.
Plaintiff did not call in for the telephone conference on December 8, 2021. During the conference, Plaintiff's counsel informed
the Court that he had had no contact with Plaintiff since they last spoke on November 30, 2021, at Plaintiff's last known phone
number, 646-399-2995. Plaintiff's counsel advised the Court that he had been informed by Plaintiff's niece that although Plaintiff
had stayed at the address in the Bronx for a little while after his release from prison, he did not currently live there. Plaintiff's
counsel did not have any contact information for Plaintiff beyond the telephone number 646-399-2995 and the address in the
Bronx. During the telephone conference, defense counsel asked the Court to dismiss this case for failure to prosecute and failure
to comply with Court orders.
*2 The Court issued an order on December 8, 2021 scheduling a hearing on the motion to withdraw for the date and time
that had been set for trial, December 13, 2021, at 9:30 a.m. (Dkt. No. 143). The Court directed Plaintiff to appear in person in
Syracuse, New York for the hearing, and warned Plaintiff that “the failure to appear in person and/or comply with the Orders
of this Court may result in the imposition of sanctions including dismissal of his action with prejudice.” (Id.). A copy of this
order was sent to Plaintiff by regular mail at the address in Bronx, New York. (Id.).
Plaintiff did not appear for the hearing on December 13, 2021. Plaintiff's counsel informed the Court that Plaintiff had not
contacted him and that Plaintiff knew that trial had been set for December 13, 2021. Later that day, Plaintiff's counsel submitted
a status report to the Court, stating that following the motion hearing, Plaintiff left a message with counsel's office stating that he
could not afford to appear in Syracuse, did not have a telephone, and wished to be contacted through his case manager. (Dkt. No.
144). Plaintiff's counsel contacted Plaintiff's post release supervision case manager, who advised that she did not have any way
to reach Plaintiff. (Id.). She explained that although her office had provided Plaintiff with two cell phones, she believed he had
sold them both and, in accord with her office's policy, she could not provide him with another phone. (Id.). She informed counsel
that if Plaintiff appeared in her office, she would advise him to call counsel as well as the Court. (Id.). Counsel stated that he
would keep the Court apprised of any further contact with Plaintiff; the Court has not received any updates from counsel. (Id.).
On December 14, 2021, the Court issued an Order to Show Cause directing Plaintiff to file a response by January 10, 2022,
setting forth why this action should not be dismissed for failure to prosecute and failure to follow court orders under N.D.N.Y.
L.R. 41.2(a) and Fed. R. Civ. P. 41(b). (Dkt. No. 145, at 4–6). The Order warned Plaintiff that failure to respond would result
in dismissal of this action. (Id. at 6). The Order was sent to Plaintiff by mail at his last known address in the Bronx. (See id.).
Plaintiff has not responded to the Court's Order to Show Cause.
III. DISCUSSION
Under Rule 41(b) of the Federal Rules of Civil Procedure, “[i]f the plaintiff fails to prosecute or to comply with [the Federal
Rules of Civil Procedure] or a court order,” a court may dismiss the action. Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370
U.S. 626, 629–30 (1962). Moreover, the Second Circuit has stated that:
[T]he involuntary dismissal is an important tool for preventing undue delays and avoiding docket
congestion. But it is also one of the harshest sanctions at a trial court's disposal, since it usually
extinguishes the plaintiff's cause of action and denies plaintiff his day in court. As a result, it is reserved
for use only in the most extreme circumstances.
U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 250–51 (2d Cir. 2004) (internal citation omitted).
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Mack v. Wood, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
When determining whether dismissal under Rule 41(b) of the Federal Rules of Civil Procedure is appropriate, courts must
consider the following factors:
whether (1) the plaintiff's failure to prosecute caused a delay of significant duration; (2) plaintiff was
given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by
further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's
right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser
sanctions.
*3 U.S. ex rel. Drake, 375 F.3d at 254. None of these factors is dispositive. Lopez v. Smurfit-Stone Container Enter., Inc., 289
F.R.D. 103, 104–05 (W.D.N.Y. 2013).
Considering these factors, the Court concludes that dismissal under Rule 41(b) is warranted under the circumstances of this case.
First, Plaintiff has been unreachable by the Court and his counsel, resulting in delay of this action; the Court has had to adjourn
the December 13, 2021 trial without date. (Dkt. No. 143). Second, Plaintiff was given notice that failure to prosecute or comply
with Court orders, including keeping the Court and all counsel apprised of his current address, could result in dismissal of this
case on several occasions. (Dkt. Nos. 111, 142, 143, 145). Third, Defendant would likely be prejudiced by Plaintiff's failure to
prosecute this action and comply with Court orders, delaying trial indefinitely in this case that has been pending for over four
years. Fourth, while the Court is mindful of Plaintiff's right to be heard, because he has failed to file a response to the Court's
Order to Show Cause, (Dkt. No. 145), failed to provide the Court with his updated address or telephone number despite several
reminders of his obligation to do so, (see Dkt. Nos. 111, 142), failed to appear for court proceedings despite Court directives,
(Dkt. Nos. 142, 143), and has provided no indication that he intends, at this point, to pursue this action, the Court finds that
the need to alleviate calendar congestion outweighs Plaintiff's right to a day in court. Fifth, where, as here, Plaintiff remains
unreachable and has repeatedly failed to comply with Court orders, the Court concludes that a sanction less than dismissal
would be ineffective. Thus, having carefully considered the relevant factors, the Court finds that dismissal is warranted.
IV. CONCLUSION
For these reasons, it is hereby
ORDERED that the Complaint (Dkt. No. 1) is DISMISSED without prejudice for failure to prosecute and failure to comply
with Court orders; and it is further
ORDERED that the Clerk of the Court is directed to serve a copy of this Memorandum-Decision and Order in accordance
with the Local Rules and close this case.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 124297
Footnotes
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1 The Court assumes familiarity with the facts and procedural history set forth in the Court's December 14, 2021 Order
to Show Cause and therefore does not repeat them all here. (Dkt. No. 145).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01109-BKS-MJK Document 21 Filed 11/21/25 Page 35 of 55

Melendez v. City of New York, Not Reported in F.Supp.3d (2014)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 6865697
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Michael MELENDEZ, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.
No. 12–cv–9241 (AJN).
|
Signed Dec. 4, 2014.
MEMORANDUM & ORDER
ALISON J. NATHAN, District Judge.
*1 Plaintiff Michael Melendez seeks declaratory, injunctive, compensatory, and punitive relief for damages caused by the
filing of an allegedly fraudulent pre-sentencing report in relation to his 1991 conviction for second degree murder and second
degree criminal possession of a weapon. The Court now moves, sua sponte, to dismiss this action, with prejudice, for failure
to serve the Defendants pursuant to Federal Rule of Civil Procedure 4(m) and for failure to prosecute under Federal Rule of
Civil Procedure 41(b).
I. PLAINTIFF HAS FAILED TO SERVE THE DEFENDANTS WITHIN 120 DAYS
On November 20, 2013, Plaintiff filed an amended complaint adding the County of Albany, the State of New York, and a large
number of individual state employees as defendants (collectively the “State Defendants”) in this action. See Dkt. No. 30.
Federal Rule of Civil Procedure 4(m) states if a defendant is “not served within 120 days after the complaint is filed, the court-
on motion or on its own after notice to the plaintiffmust dismiss the action without prejudice against that defendant or order
that service be made within a specified time.”
Plaintiff has unmistakably failed to comply with this requirement. Despite the amended complaint being filed over a year ago,
the additional State Defendants have not yet been served. Rule 4(m) plainly states that in such instances a court may, on its own
motion, dismiss the complaint without prejudice so long as it has first given notice to the plaintiff. See Thompson v. Maldonado,
309 F.3d 107, 110 (2d Cir.2002) (vacating dismissal pursuant to Rule 4(m) where the plaintiff was not given notice). The Plaintiff
here has been ordered to serve the State Defendants on multiple occasions, and similarly has been repeatedly warned that failure
to do so would result in dismissal. See Dkt. Nos. 48, 49. Accordingly, Plaintiff's case against the State Defendants first named
in the amended complaint is dismissed.
II. PLAINTIFF HAS FAILED TO PROSECUTE HIS CASE
a. Background
Plaintiff, proceeding pro se and in forma pauperis, first filed this action on December 17, 2012 against the City of New York,
the New York City Department of Probation, and a large number of individual defendants (collectively the “City Defendants”).
See Dkt. No. 2. On October 21, 2013, the City Defendants filed a motion to dismiss the complaint for, inter alia, being untimely
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and barred by various forms of immunity. See Dkt. No. 21. In response to this, Plaintiff filed an amended complaint, adding the
State Defendants, on November 20, 2013. See Dkt. No. 30. This was the last time Plaintiff took any action in this case.
On December 19, 2013, the City Defendants filed a motion to dismiss the amended complaint. See Dkt. No. 35. Despite being
granted an extended period to file an opposition, see Dkt. No. 40, Plaintiff never responded to this motion, which was ultimately
granted on September 5, 2014, thus removing the City Defendants from the case. See Dkt. No. 47.
*2 On September 9, 2014, the Court issued an order pursuant to 28 U.S.C § 1915(a), dismissing the Plaintiff's claim against
the State of New York due to its immunity under the Eleventh Amendment and ordering the Plaintiff to effect service on the
remaining State Defendants, warning that failure to do so would result in dismissal for failure to prosecute. See Dkt. No. 48.
After failing to respond to this order, the Court issued another order to the Plaintiff on November 3, 2014, instructing him to
provide service to the outstanding State Defendants in the case by November 28, 2014. See Dkt. No. 49. Again he was reminded
that failure to comply would result in dismissal for failure to prosecute. Id. 1
b. Legal Standard
Federal Rule of Civil Procedure 41(b) provides that if a 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” and that such a dismissal shall operate as an adjudication on
the merits unless the Court states otherwise. 2 Courts considering whether to grant a motion to dismiss for failure to prosecute
have considered five factors:
(1) the plaintiffs failure to prosecute caused a delay of significant duration; (2) plaintiff was given notice that further delay
would result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar
congestion was carefully balanced against plaintiff's right to an opportunity for a day in court; and (5) ... the efficacy of
lesser sanctions.
Ruzsa v. Rubenstein & Sendy Attys. at Law, 520 F.3d 176, 177 (2d Cir.2008). Dismissal is a harsh remedy appropriate only in
extreme cases and courts are “especially hesitant” to dismiss claims by pro se litigants on this basis. Lucas v. Miles, 84 F.3d 532,
535 (2d Cir.1996). The Second Circuit has recently counseled that, in light of the harsh nature of this remedy, District Courts
must be sure to “disclose [the] deliberative path” taken in concluding that dismissal is warranted under Rule 41(b). See Baptiste
v. Sommers, 768 F.3d 212, 217 (2d Cir.2014). Nevertheless, in appropriate circumstances courts have dismissed such claims
for failure to prosecute. See, e.g., Ruzsa, 520 F.3d at 177–78; Lehman v. Garfinkle, No. 08–cv–9385, 2013 U.S. Dist. LEXIS
149016, at *5, 2013 WL 5637700 (S.D.N.Y. Oct. 16, 2013); Lynch v. Downs, No. 07–cv–134, 2009 U.S. Dist. LEXIS 31944,
at *6–13, 2009 WL 1011622 (W.D.N .Y. Apr. 15, 2009).
c. Analysis
The Court now turns to each of the five factors applicable in this case. As to the delay caused by Plaintiffs' failure to prosecute,
it has been over a year since the Plaintiff amended his complaint to include the State Defendants. The case against the State
Defendants has not proceeded at all during that period of time due to the Plaintiff's failure to attempt service in spite of an
extended opportunity to do so. See Dkt. No. 49. Moreover, the Plaintiff's failure to oppose the City Defendants' December
2013 motion to dismiss resulted in significant delay adjudicating that motion. As with his claims against the State Defendants,
the Plaintiff was afforded an extended opportunity to respond to the City Defendants' motion. See Dkt. No. 40. Over the past
year, the Plaintiff has failed to respond to four different orders from the Court, including the reminder order regarding the City
Defendants' motion to dismiss, id., the request to provide the Court with an updated address, see Dkt. No. 44, the first order
requiring Plaintiff to serve the State Defendants, see Dkt. No. 48, and the second reminder order to serve the State Defendants.
See Dkt. No. 49.
*3 The second factor also points in favor of dismissal. The Court's November 3, 2014 order explained that a failure to serve
the remaining State Defendants would require the Court to deem the complaint withdrawn, resulting in dismissal of the case.
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Melendez v. City of New York, Not Reported in F.Supp.3d (2014)
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See Dkt. No. 49. See also Ruzsa, 520 F.3d at 177; Lehman, 2013 U.S. Dist. LEXIS 149016, at *7, 2013 WL 5637700. Indeed,
the Plaintiff has now been warned about the potential for dismissal at least three different times, with the first warning issued
in March 2014. See Dkt. Nos. 44, 48, 49.
Further delays may also result in prejudice to the remaining Defendants. The events underlying this litigation occurred over
two decades ago, Am. Compl. ¶¶ 22–27, and Plaintiff's failure to serve the State Defendants increases the likelihood that trial
will be made more difficult or evidence will be lost. This factor supports dismissal. See Ruzsa, 520 F.3d at 177 (events occurred
nearly thirteen years previously and further delay was likely to cause prejudice as the salient events receded even further into
the past); Lehman, 2013 U.S. Dist. LEXIS 149016, at *7–8, 2013 WL 5637700 (events occurred six years before dismissal);
Lynch, 2009 U.S. Dist. LEXIS 31944, at *8–9, 2009 WL 1011622; Sanders, 2008 U.S. Dist. LEXIS 40515, at *12–13 (finding
delay unreasonable and presuming prejudice based on the delay).
As to the fourth factor, Plaintiff has been provided with numerous opportunities to participate in this litigation and has not taken
them. His failure to provide the Court with a current address has resulted in many fruitless attempts to keep him apprised of
developments in litigation he has neglected for nearly thirteen months. Moreover, Plaintiff has had “ample time to inform the
Court that he stood ready to press his claim” but has not done so. Ruzsa, 520 F.3d at 177–78. However, the burdens imposed by
Plaintiff's failure to participate have not been onerous. As a result, the Court finds this factor either points slightly in favor of
dismissal or is neutral. See Lehman, 2013 U.S. Dist. LEXIS 149016, at *8, 2013 WL 5637700 (finding factor neutral for this
reason); Lynch, 2009 U.S. Dist. LEXIS 31944, at *9, 2009 WL 1011622; Sanders, 2008 U.S. Dist. LEXIS 40515, at * 13–14
(finding this factor did not strongly weigh in favor of dismissal because the failure to prosecute was “silent and unobtrusive”
rather than “vexatious and burdensome”).
Finally, the Court is unconvinced that lesser sanctions are likely to prompt Plaintiff to comply. First and foremost, the Plaintiff
has been completely noncommunicative with the Court for over a year. Second, the Plaintiff has failed to provide the Court with
a current address at which to reach him despite repeated requests to do so. Third, repeated threat of dismissal has not caused
him to proceed with his claim. Ruzsa, 520 F.3d at 178 (noting that it was unclear that a lesser sanction would have proved
effective in light of failure to respond to a notice threatening dismissal); Lehman, 2013 U.S. Dist. LEXIS 149016, at *8–9, 2013
WL 5637700 (“Lehman has still not responded to this Court's September 24 order to show cause, making it unclear how any
sanction short of dismissal with prejudice would prove effective.”). Lesser sanctions are insufficient.
III. CONCLUSION
*4 This action is dismissed, with prejudice, for failure to serve notice under Rule 4(m) and for failure to prosecute pursuant
to Rule 41(b). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from its order would not be taken in
good faith and, therefore, that in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States,
369 U.S. 438,444–45(1962).
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 6865697
Footnotes
1 The Court speculates that the Plaintiff's twelve and a half-month absence from the case is explained by the fact that he
was probably released from prison in January 2014. See Dkt. No. 42. Despite several orders to do so, see Dkt. Nos.
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Melendez v. City of New York, Not Reported in F.Supp.3d (2014)
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44, 48, 49, Plaintiff never updated his address with the Court or sought to re-involve himself in the case. The Court
attempted reaching the Plaintiff at an address in the Bronx provided by the Woodbourne Correctional Facility, but all
mail forwarded to this address was returned.
2 Although the State Defendants have not been served and therefore have not moved for dismissal under Rule 41(b), “it
is unquestioned that Rule 41(b) also gives the district court authority to dismiss a plaintiffs case sua sponte for failure
to prosecute .” LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir.2001) (citing Link v. Wabash R.R. Co., 370
U.S. 626, 630, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01109-BKS-MJK Document 21 Filed 11/21/25 Page 39 of 55

Milhouse v. City of New York, Not Reported in Fed. Supp. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 5487921
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Muhammad E. MILHOUSE, Plaintiff,
v.
The CITY OF NEW YORK, et al., Defendants.
22-CV-2934 (JPC) (BCM)
|
Signed August 1, 2023
Attorneys and Law Firms
Muhammad E. Milhouse, New York, NY, Pro Se.
Marlena Smith, New York City Law Department, New York, NY, for Defendant City of New York.
REPORT AND RECOMMENDATION TO THE HON. JOHN P. CRONAN
BARBARA MOSES, United States Magistrate Judge.
*1 After filing this action pro se and in forma pauperis in April 2022, plaintiff Muhammad Milhouse made several premature
motions for discovery, but failed to comply with this Court's order to amend his pleading to identify the “Doe” defendant,
and thereafter failed to respond to two follow-up court orders, including an order to show cause why this action should not
be dismissed. I therefore recommend, respectfully, that this action be dismissed without prejudice pursuant to Fed. R. Civ. P.
16(f)(1)(C) and 41(b).
Background
Plaintiff filed two complaints on April 8, 2022, under two different docket numbers, both alleging that he was assaulted at the
Hilton Garden Inn at 6 Water Street in Manhattan by employees of the New York City Department of Homeless Services (DHS),
as well as by hotel employees, on multiple dates prior to February 7, 2021. See Compl. (Dkt. 2) at ECF pp. 7-9; Compl. in
Case No. 22-CV-2940 (Dkt. 2) at ECF pp. 7-9. 1 On May 31, 2022, the Hon. Laura Taylor Swain, Chief United States District
Judge, consolidated the cases, directing that all further filings be docketed in in this action. See Order to Amend (Dkt. 4) at
5-6. Additionally, Chief Judge Swain granted plaintiff leave to file a single amended complaint clarifying, among other things,
“who he is intending to sue.” Id. at 6-8. 2
Plaintiff filed his Amended Complaint on July 27, 2022, explaining that the Hilton Garden Inn was a “Covid-19 isolation
site” and alleging that during his quarantine there by DHS, from January 20, 2021 through February 7, 2021, he endured
physical and sexual assaults and was drugged with illicit substances. See Am. Compl. (Dkt. 5) at ECF pp. 6-8. Plaintiff named
as defendants (at various points in his pleading) New York City (the City), two City agencies, and defendants described as:
“Administrative Support”; “Cleaning and Sanitizing Housekeeping Staff”; John or Jane Doe “Site Supervisor NYCDHSDSS-
DHS Covid-19 Isolation Site”; John or Jane Doe “24/7 Operation Staff/Housekeeping”; John or Jane Doe “NYCDHSDSS
Access Control/‘Building Ow[n]ers’ Security”; and John or Jane Doe “Nurse/Medical Staff (Isolation Site Essential Services).”
Id. at ECF pp. 1, 4-6.
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Milhouse v. City of New York, Not Reported in Fed. Supp. (2023)
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On August 10, 2022, the Hon. John P. Cronan, United States District Judge, dismissed plaintiff's claims against the agencies,
“Administrative Support,” and “Cleaning and Sanitizing Housekeeping Staff,” but directed service on the City. Order of Service
(Dkt. 7) at 2-3. He also directed the New York City Law Department, as “attorney for and agent of the City of New York,” to help
identify the John or Jane Doe identified as the “Site Supervisor at the DHS Covid-19 isolation site at the Hilton Garden Inn.” Id.
at 4-5. Judge Cronan instructed plaintiff that, within 30 days of receiving identifying information from the Law Department, he
was to “file a second amended complaint naming the John or Jane Doe defendant.” Id. at 5. Additionally, Judge Cronan referred
the case to me for general pretrial management. (Dkt. 9.)
*2 On October 20, 2022 – before the City appeared or identified the DHS Site Supervisor – plaintiff filed an unauthorized
second amended complaint (Dkt. 13) that did not conform to Judge Cronan's Order of Service. On December 8, 2022, I struck
that pleading, again directed service of the summons and the Amended Complaint on the City, and again ordered the Law
Department to assist plaintiff in identifying the “John or Jane Doe ‘Site Supervisor.’ ” Am. Order of Service (Dkt. 16) at 3-5.
On October 20, 2022, and again on November 30, 2022, plaintiff consented to electronic service (Dkts. 12, 15), and since then
he has received an email notification, at the email address he provided, every time the Court issues an order or another party
files a document.
Beginning on December 27, 2022, plaintiff filed a series of discovery motions – some of which appeared to request documents
unrelated to this action – without having first served any discovery request on any party. (See Dkts. 20, 22, 28, 30.) I denied
those motions as premature. (See Dkts. 24, 33.) 3 The City was served with process on January 10, 2023 (see Dkt. 32), and
answered the Amended Complaint on January 31, 2023. (Dkt. 36.)
On February 1, 2023, plaintiff updated his street address, but did not revoke his consent to electronic service (and reconfirmed
his email address). (Dkt. 38.)
On February 2, 2023, the Law Department identified the Jane Doe site supervisor as Karen Edwards. (Dkt. 40.) Although the
Amended Order of Service required plaintiff to further amend his complaint within 30 days of that date, i.e., by March 5, 2023,
plaintiff did not do so. Instead, he filed another discovery motion on March 10, 2023 (Dkt. 41), once again asking the Court to
compel production of documents and information that he had never requested from the City itself, and that appeared unrelated to
the claims in this action. (See Dkt. 42.) On March 14, 2023, I denied that discovery motion, reminded plaintiff of his obligation
to further amend his complaint, and sua sponte extended his deadline to do so until March 28, 2023. (Dkt. 43.)
On April 12, 2023 – at which point plaintiff still had not amended his complaint to identify the site supervisor – I directed him
to show cause, in writing, “why this action should not be dismissed pursuant to Fed. R. Civ. P. 16(f)(1)(C), and/or Fed. R. Civ.
P. 41(b) for failure to comply with this Court's orders and/or for failure to prosecute.” (Dkt. 44 at 2.) Plaintiff has neither shown
cause nor further amended his complaint. His last filing was his March 10, 2023 discovery motion.
Legal Standards
The Federal Rules of Civil Procedure authorize district courts to dismiss an action “[i]f the plaintiff fails to prosecute or to
comply with [the federal] rules or a court order.” Fed. R. Civ. P. 41(b); see also Fed. R. Civ. P. 16(f)(1)(C) (court may issue
“any just orders,” including orders authorized by Rule 37(b)(2)(A), if that party “fails to obey a scheduling or other pretrial
order”). The Rule 37 sanctions incorporated into Rule 16 include “dismissing the action or proceeding in whole or in part.”
Fed. R. Civ. P. 37(b)(2)(A)(v).
*3 Dismissal, with or without prejudice, is “a harsh remedy to be utilized only in extreme situations.” LeSane v. Hall's Sec.
Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972)
(per curiam)), especially when the plaintiff is unrepresented, because pro se plaintiffs are “granted special leniency regarding
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Milhouse v. City of New York, Not Reported in Fed. Supp. (2023)
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procedural matters.” Id. (citing Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)); see also McDonald v. Head Crim. Ct. Supervisor
Officer, 850 F.2d 121, 124 (2d Cir. 1988) (“pro se litigants may in general deserve more lenient treatment than those represented
by counsel”). However, like all litigants, pro se parties “have an obligation to comply with court orders. When they flout that
obligation they ... must suffer the consequences of their actions.” McDonald, 850 F.2d at 124.
A district court considering a Rule 41(b) dismissal must weigh five factors:
(1) the duration of the plaintiff's failure to comply with the court order, (2) whether 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.
Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (quoting Lucas, 84 F.3d at 535). No single factor is dispositive. Id.
(internal citation omitted); Shannon v. Gen. Elec. Co., 186 F.3d 186, 195 (2d Cir. 1999).
Similarly, when considering a dismissal pursuant to Rule 16(f)(1)(C), the court appropriately considers “(1) the willfulness of
the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of
noncompliance[;] and (4) whether the non-compliant party had been warned of the consequences of noncompliance.” DeJesus
v. Venetozzi, 2023 WL 2864194, at *4 (N.D.N.Y. Feb. 6, 2023) (quoting Funk v. Belneftekhim, 861 F.3d 354, 366 (2d Cir. 2017))
(alteration in original), report and recommendation adopted, 2023 WL 2495834 (N.D.N.Y. Mar. 14, 2023). Importantly, “[t]he
court need not find that a party or litigant acted in bad faith as a prerequisite to imposing sanctions under Rule 16(f); [r]ather,
the fact that a party violated a pretrial order is sufficient to allow a Rule 16 sanction.” Martin v. Giordano, 185 F. Supp. 3d
339, 354 (E.D.N.Y. 2017) (quotations omitted).
Where, as here, a pro se plaintiff has seemingly lost interest in prosecuting his case, his claims are appropriately dismissed
pursuant to both Rule 41(b) and Rule 16(f)(1)(C). See, e.g., Walters v. City of New York, 2022 WL 4031425, at *2 (S.D.N.Y.
Sept. 2, 2022) (dismissing without prejudice where plaintiff “stopped showing up to conferences” and “has not responded to
any of the Court's recent orders”), motion for relief from judgment denied, 2023 WL 171887 (S.D.N.Y. Jan. 12, 2023); Davis v.
City of New York, 2019 WL 7842400, at *3 (E.D.N.Y. Dec. 3, 2019) (recommending dismissal with prejudice where plaintiff
“failed to appear at three pretrial conferences and failed to obey three separate court orders,” including an order to show cause
why the case should not be dismissed), report and recommendation adopted, 2020 WL 103525 (E.D.N.Y. Jan. 9, 2020).
Analysis
All of the factors listed above weigh in favor of dismissing this action pursuant to Rule 41(b).
The first factor – the duration of plaintiff's failure to pursue his claims – weighs in favor of dismissal because plaintiff was
required to further amend his complaint by March 5, 2023 – almost five months ago – and has failed to do so. He was reminded
again on March 14, 2023 – at which point his amendment deadline was extended to March 28, 2023 – and then, on April 12,
2023, was ordered to show cause why his claims should not be dismissed for failure to do so. During part of that time, he
remained in communication with the Court (filing his last discovery motion on March 10, 2023), but failed to comply with the
Court's directive that he further amend his complaint. Since March 10, moreover, he has failed to participate in these proceedings
in any capacity.
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Milhouse v. City of New York, Not Reported in Fed. Supp. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
*4 Courts in this Circuit have historically dismissed actions with analogous procedural delays. See, e.g., Brow v. City of New
York, 391 F. App'x 935, 937 (2d Cir. 2010) (summary order) (affirming dismissal after nearly six months of delay); Ruzsa v.
Rubenstein & Sendy Attys at L., 520 F.3d 176, 177 (2d Cir. 2008) (upholding dismissal where party caused a seven-month
delay); Folk v. Barton, 2016 WL 8993874, at *2 (S.D.N.Y. Dec. 2, 2016) (recommending dismissal where pro se plaintiff caused
a three-month delay), report and recommendation adopted, 2017 WL 2191620 (S.D.N.Y. May 17, 2017).
The second factor looks to whether plaintiff was given notice that further inaction would result in dismissal of his case. This
factor also favors dismissal, given that this Court's orders dated January 13, March 14, and April 12, 2023 all provided notice to
plaintiff that his failure to comply with this Court's amendment order or otherwise pursue this action could result in dismissal.
See Hunter v. New York State Dep't of Corr. Servs., 515 F. App'x 40, 43 (2d Cir. 2013) (affirming dismissal where plaintiff
received “at least two notices that her action could be dismissed for a failure to prosecute”). Here, plaintiff continued (for a
time) communicating with the Court regarding other matters, suggesting that his failure further amend his complaint was a
conscious choice not to comply.
The third factor – prejudice to the defendants – may be presumed where the plaintiff has unreasonably delayed pursuing his
case. See Shannon, 186 F.3d at 195 (defendant suffers prejudice when “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”).
The fourth factor calls for balancing this Court's interest in managing its docket against plaintiff's interest in receiving a fair
chance to be heard. Dismissing the case without prejudice fairly weighs both interests. Should plaintiff wish to re-file his claims,
which arose in January and February of 2021, see Am. Compl. at 6, and are asserted pursuant to 42 U.S.C. § 1983, he will still
have sufficient time within the applicable three-year statute of limitations to do so. Thrall v. Cent. New York Reg'l Transp. Auth.,
399 F. App'x 663, 666 (2d Cir. 2010) (dismissal without prejudice serves “the district court's need to clear its calendar without
unduly penalizing a pro se litigant for failing to comply with a scheduling order”).
The fifth factor also weighs in favor of dismissal. Because plaintiff has failed to comply with multiple court orders for almost
five months, only dismissal would effectively address his failure to prosecute. See Hunter, 515 F. App'x at 43 (affirming Rule
41(b) dismissal in part because of “plaintiff's inactivity, for over seven months, in response to defendant's motion for summary
judgment”); Robinson v. Healthfirst of NY & NJ, 2017 WL 3267740, at *3 (S.D.N.Y. July 31, 2017) (there was “no reason
to believe a lesser sanction would be efficacious” where plaintiff “failed to appear in the face of an explicit warning that her
case would be dismissed”).
The Rule 16(f)(1)(C) factors – which substantially overlap with those discussed above – also favor dismissal. Plaintiff's
failure to further amend his complaint appears to have been willful; lesser sanctions would likely be ineffective; the period
of noncompliance is now approaching five months; and plaintiff has been “warned of the consequences of noncompliance.”
Funk, 861 F.3d at 366.
Conclusion
*5 For the reasons stated above, I recommend, respectfully, that this action be DISMISSED, without prejudice, pursuant to
Rules 41(b) and 16(f)(1)(C). Additionally, I recommend that the Clerk of Court be directed to close plaintiff's second action,
docketed at No. 22-CV-2940, which was previously kept open for administrative purposes.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this 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). A party may respond to another party's objections
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Milhouse v. City of New York, Not Reported in Fed. Supp. (2023)
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within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Any such objections shall be filed with the Clerk
of the Court, with courtesy copies delivered to the Hon. John P. Cronan, United States District Judge, at 500 Pearl Street, New
York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Cronan. Failure to
file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474
U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x 486, 487 (2d Cir. 2018) (summary order); Wagner &
Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
All Citations
Not Reported in Fed. Supp., 2023 WL 5487921
Footnotes
1 All docket numbers refer to the docket of this action unless otherwise noted.
2 In this action, plaintiff named as Defendant 1 “Hilton Garden Inn Employees (et. al).” In Case No. 22-CV-2940, he
named as Defendant 1 “DHS – City of New York employees (et. al).”
3 Additionally, plaintiff filed a motion for the appointment of pro bono counsel (Dkt. 19), which I denied (along with one
of his discovery motions) on January 3, 2023. (Dkt. 24.) The next day, plaintiff moved to vacate my January 3 order.
(Dkt. 25.) On February 1, 2023, Judge Cronan construed the motion as an objection filed pursuant to Fed. R. Civ. P.
72(a) and overruled the objection. (Dkt. 39.)
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Parson v. Barboza, Not Reported in Fed. Supp. (2016)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 7264953
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Drahcir S. PARSON, Plaintiff,
v.
Inspector BARBOZA, Warren County Jail, Defendant.
9:14-CV-1267 (BKS/CFH)
|
Signed 12/15/2016
Attorneys and Law Firms
Drahcir S. Parson, Schenectady, NY 12303, Plaintiff, pro se.
Gregg T. Johnson, Esq., April J. Laws, Esq., Lemire, Johnson & Higgins LLC, P.O. Box 2485, 2534 Route 9, Malta, NY 12020,
Attorney for Defendant.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, U.S. District Judge
I. BACKGROUND
*1 Plaintiff pro se Drahcir Parson brought this action against Defendant Inspector Barboza under 42 U.S.C. § 1983 alleging
violations of his constitutional rights while he was a pretrial detainee at the Warren County Jail. Dkt. No. 18. On December
18, 2015, Defendants filed a motion for summary judgment seeking dismissal of the complaint. Dkt. No. 27. Plaintiff did not
respond to Defendants' motion. In addition, certified mail sent to Plaintiff notifying him of the due date for his response to the
summary judgment motion was returned to the Court as “unclaimed” on January 27, 2016. Dkt. No. 33.
On June 28, 2016, United States Magistrate Judge Christian F. Hummel issued a Report-Recommendation and Order
recommending that Defendants' motion be granted in part and denied in part and advised the parties of their right to file
objections. Dkt. No. 37. Defendant Barboza filed an objection to the Report-Recommendation. Dkt. No. 41. Plaintiff, however,
neither objected to the Report-Recommendation nor responded to Defendant's objection.
On August 18, 2016, the Court issued an order adopting the Report-Recommendation. Dkt. No. 43. On August 19, 2016, the
Courtroom Deputy to the undersigned sent Plaintiff a letter advising that this case is trial ready and requesting that Plaintiff
“advise ... in writing on or before September 2, 2016 as to whether [he] would like the Court to appoint an attorney to represent
[him] at trial.” Dkt. No. 43. On September 1, 2016, Defendant filed a motion for reconsideration on the issue of qualified
immunity. Dkt. No. 44. Plaintiff did not respond to the Courtroom Deputy's August 19, 2016 letter or Defendant's motion for
reconsideration. Indeed, Plaintiff has not communicated with the Court in more than a year—his last filing was a change of
address on September 25, 2015. Dkt. No. 25.
On November 18, 2016, the Court issued an order to show cause why this action should not be dismissed for failure to prosecute.
Dkt. No. 45, p. 2 (citing N.D.N.Y. L.R. 41.2(a) (“Whenever it appears that the plaintiff has failed to prosecute an action or
proceeding diligently, the assigned judge shall order it dismissed.”); Horton v. City of N.Y., 636 Fed.Appx. 822, 823 (2d Cir.
2016) (“ ‘[A]lthough the text of Fed. R. Civ. P. 41(b) expressly addresses only the case in which a defendant moves for dismissal
of an action, it is unquestioned that Rule 41(b) also gives the district court authority to dismiss a plaintiff's case sua sponte for
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Parson v. Barboza, Not Reported in Fed. Supp. (2016)
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failure to prosecute.’ ”) (quoting LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001))). The Court directed
Plaintiff to file by December 9, 2016, a “certificate setting forth the status of this action and whether good cause exists to
dismiss it for failure to prosecute.” Dkt. No. 45, p. 4 (quoting N.D.N.Y. L.R. 41.2(a)). The Court advised Plaintiff that if he
failed to file a certificate of status by December 9, 2016, this action would be dismissed. Id. To date, the Court has received
no response from Plaintiff. For the following reasons, Defendant's motion for reconsideration (Dkt. No. 44) is denied and this
action is dismissed for failure to prosecute.
II. DISCUSSION
*2 Under Rule 41(b) of the Federal Rules of Civil Procedure, “[i]f the plaintiff fails to prosecute or to comply with [the Federal
Rules of Civil Procedure] or a court order,” a court may dismiss the action. Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370
U.S. 626, 629–30 (1962). See also N.D.N.Y. L.R. 41.2 (“Whenever it appears that the plaintiff has failed to prosecute an action
or proceed diligently, the assigned judge shall order it dismissed.”). Moreover, the Second Circuit has stated that:
[T]he involuntary dismissal is an important tool for preventing undue delays and avoiding docket
congestion. But it is also one of the harshest sanctions at a trial court's disposal, since it usually
extinguishes the plaintiff's cause of action and denies plaintiff his day in court. As a result, it is reserved
for use only in the most extreme circumstances.
U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 250–51 (2d Cir. 2004) (internal citation omitted). The Second Circuit has
further stated that courts “should be especially hesitant to dismiss for procedural deficiencies where the failure is by a pro se
litigant.” Hunter v. N.Y. State Dep't of Correctional Servs., 515 Fed.Appx. 40, 42 (quoting Lucas v. Miles, 84 F.3d 532, 535
(2d Cir. 1996)) (internal punctuation omitted). Mindful of the Second Circuit's admonition that courts should be cautious when
dismissing an action for procedural deficiencies, the Court first considers whether Defendant's motion for reconsideration (Dkt.
No. 44) might resolve this action.
A. Motion for Reconsideration
In general, a motion for reconsideration may only be granted upon one of three grounds: “an intervening change of controlling
law, the availability of new evidence or the need to correct a clear error of law or prevent manifest injustice.” United States v.
Zhu, 41 F. Supp. 3d 341, 342 (S.D.N.Y. 2014) (quoting Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255
(2d Cir. 1992) (citing 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478 at 790)); see also Shannon
v. Verizon N.Y., Inc., 519 F. Supp. 2d 304, 307 (N.D.N.Y. 2007). “[A] motion to reconsider should not be granted where the
moving party seeks solely to relitigate an issue already decided.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
“The standard for reconsideration is strict and is committed to the discretion of the court.” S.E.C. v. Wojeski, 752 F. Supp. 2d
220, 223 (N.D.N.Y. 2010) aff'd sub nom. Smith v. S.E.C., 432 Fed.Appx. 10 (2d Cir. 2011).
In her motion for reconsideration, Defendant does not identify an intervening change of controlling law, indicate that new
evidence is available, or allege that there was a clear error of law. Rather, Defendant reargues the issue of qualified immunity
in essentially the same manner as she did in her objections. Compare Dkt. No. 42, pp. 14–15, with Dkt. No. 44-1, pp. 6–10.
Having determined that Defendant's video evidence does not “so utterly discredit” Plaintiff's allegation in the verified complaint
that Defendant “slammed [Plaintiff] to the ground from behind and then grabbed [his] right finger to break it as she began
handcuffing [him],” Dkt. No. 18, p. 3, Magistrate Judge Hummel properly concluded, and this Court agreed, that in light of
the parties' factual dispute, Defendant was not entitled to qualified immunity at this point in the proceedings. See Dkt. No. 37,
pp. 15, 30 (finding that “because a reasonable jury could conceivably accept Parson's claim that Barboza's use of force was
objectively unreasonable, Barboza is not entitled to qualified immunity for the alleged Fourteenth Amendment violation.”);
Dkt. No. 42, pp. 4–5. See also O'Bert ex rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 37 (2d Cir. 2003) (explaining that in the
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Parson v. Barboza, Not Reported in Fed. Supp. (2016)
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excessive force context that “[s]ummary judgment should not be granted on the basis of a qualified immunity defense premised
on an assertion of objective reasonableness unless the defendant show[s] that no reasonable jury, viewing the evidence in the
light most favorable to the [p]laintiff, could conclude that the defendant's actions were objectively unreasonable in light of
clearly established law.”). Accordingly, there is no basis for reconsideration and Defendant's motion (Dkt. No. 44) is denied.
B. Dismissal for Failure to Prosecute
*3 The Second Circuit has instructed courts to consider the following factors when determining whether dismissal for failure
to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure is appropriate:
whether (1) the plaintiff's failure to prosecute caused a delay of significant duration; (2) plaintiff was
given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by
further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's
right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser
sanctions.
U.S. ex rel. Drake, 375 F.3d at 254. None of these factors is dispositive. Lopez v. Smurfit-Stone Container Enterprise, Inc., 289
F.R.D. 103, 104-105 (W.D.N.Y. 2013).
Considering these factors, the Court concludes that dismissal for failure to prosecute is warranted under the circumstances of
this case. First, Plaintiff's failure to prosecute has delayed this action significantly—it has been pending for more than two years,
and it is trial ready. Second, Plaintiff was given notice that failure to cooperate or appear in connection with this case could result
in dismissal. Dkt. No. 45; Dkt. No. 8, p. 5. Third, Defendant is likely to be prejudiced by delaying trial indefinitely. Fourth,
while the Court is mindful that Plaintiff has survived summary judgment and is entitled to trial with respect to his excessive
force claim against Defendant, because he has not appeared in this action for more than a year, the Court finds that the need to
alleviate calendar congestion outweighs Plaintiff's right to an opportunity for a day in court. Fifth, where, as here, Plaintiff has
failed to suggest that he has any intention of pursuing this action, the Court concludes that a sanction less than dismissal would
be ineffective. Thus, having carefully considered the relevant factors, the Court finds that dismissal is warranted.
III. CONCLUSION
For these reasons, it is
ORDERED that Defendant's motion for reconsideration (Dkt. No. 44) is DENIED; and it is further
ORDERED that the amended complaint (Dkt. No. 18) is DISMISSED without prejudice for failure to prosecute; and it is
further
ORDERED that the Clerk of the Court is directed to serve a copy of this Memorandum-Decision and Order on Plaintiff via
Certified Mail and close this case.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 7264953
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Parson v. Barboza, Not Reported in Fed. Supp. (2016)
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End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01109-BKS-MJK Document 21 Filed 11/21/25 Page 48 of 55

Russell v. Terraferma, Not Reported in Fed. Supp. (2018)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 2364285
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
James RUSSELL, Plaintiff,
v.
Eric TERRAFERMA and Jason Meyer, Defendants.
1:16-cv-00468(BKS/DJS)
|
Signed 05/24/2018
Attorneys and Law Firms
James Russell, Waterford, NY, pro se.
Barbara Underwood, Acting Attorney General, New York State Office of the Attorney General, Kyle W. Sturgess, Assistant
Attorney General, The Capitol, Albany, NY 12224, for Defendants.
MEMORANDUM-DECISION AND ORDER
Hon. Brenda K. Sannes, United States District Judge
I. INTRODUCTION
*1 Plaintiff James Russell, commenced this action under 42 U.S.C. § 1983 alleging that Defendants Eric Terraferma and Jason
Meyer, New York State Police Troopers, subjected him to an allegedly unreasonable search and seizure during a traffic stop,
in violation of his Fourth and Fourteenth Amendments rights. (Dkt. No. 1). On February 12, 2018, Defendants filed a motion
for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, or, in the alternative, to dismiss for failure to
prosecute under Rule 41(b). (Dkt. No. 35). For the reasons set forth below, this action is dismissed for failure to prosecute under
Rule 41(b) of the Federal Rules of Civil Procedure.
II. PROCEDURAL HISTORY
Plaintiff, represented by counsel, filed the Complaint on April 22, 2016. (Dkt. No. 1). On July 8, 2016, Defendants filed
an Answer (Dkt. No. 7) and on July 27, 2016, the Court entered a Uniform Pretrial Scheduling Order setting discovery and
dispositive motion deadlines. (Dkt. No. 10). On February 21, 2017, Plaintiff's counsel filed a letter stating that he would no
longer be representing Plaintiff, that he had advised Plaintiff to locate new counsel, and that he would file a motion to withdraw
as counsel. (Dkt. No. 15, at 1). United States Magistrate Judge Daniel J. Stewart stayed all deadlines “pending the resolution
of Mr. Russell's representation.” (Dkt. No. 16).
On May 2, 2017, Plaintiff's counsel filed a motion to withdraw as counsel. (Dkt. No. 23). On June 1, 2017, Magistrate Judge
Stewart held an in-person hearing on the motion, which Plaintiff attended, granted the motion to withdraw, stayed the case for
60 days, and directed Plaintiff “to advise the Court as to the status of retaining new counsel within 30 days.” (Dkt. Nos. 24, 26).
On August 31, 2017, Plaintiff filed a status report indicating that he was having difficulty finding new counsel and requesting
more time. (Dkt. No. 28). On September 13, 2017, Magistrate Judge Stewart issued a Text Order directing that Plaintiff and
defense counsel appear for an in-person conference on September 27, 2017. (Dkt. No. 29).
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Plaintiff failed to appear for the September 27, 2017 in-person conference. 1 (Dkt. No. 30). After hearing from defense counsel,
Magistrate Judge Stewart lifted the stay and issued an amended scheduling order directing the parties to complete discovery
by November 30, 2017, and file any dispositive motions by December 29, 2017. (Id.). Additionally, Magistrate Judge Stewart
“deemed [Plaintiff] Pro Se for the remainder of th[e] action,” 2 but noted that he was “not precluded from obtaining counsel at
any time,” and asked defense counsel to attempt to contact Plaintiff. (Id.; Text Minute Entry September 27, 2017).
On October 23, 2017, Defendants served paper discovery demands on Plaintiff along with a notice scheduling Plaintiff's
deposition for November 28, 2017. (Dkt. No. 35-1, ¶ 6). Plaintiff did not respond to Defendants' paper discovery demands and
“could not be reached by phone to ... confirm that he intended to appear for deposition.” (Id. ¶ 7).
*2 Plaintiff did not appear for his November 28, 2017 deposition. (Id. ¶ 8). Defense counsel “sought to contact Plaintiff via ...
telephone ... [but] was unable ... to reach the Plaintiff directly, or ... leave a voicemail.” (Id.). Sometime later, Plaintiff contacted
defense counsel and asked if a new date could be set for deposition. (Id.).
In a letter dated November 30, 2017, defense counsel advised the Court of Plaintiff's telephone call and indicated that the parties
discussed discovery and scheduled Plaintiff's deposition for January 10, 2018. (Dkt. No. 33, at 1). Defense counsel accordingly
requested that the discovery and dispositive motion deadlines be extended. (Id.). Magistrate Judge Stewart granted the request
and extended the discovery deadline to January 12, 2018 and the dispositive motion deadline to February 11, 2018. (Dkt. No. 34).
Defendants re-mailed their paper discovery demands to Plaintiff along with a new notice of deposition, specifying a deposition
date of January 10, 2018. (Dkt. No. 35-1, ¶ 12). Plaintiff failed to appear for deposition and, according to defense counsel,
“[w]hen contacted by phone after failing to appear, the Plaintiff stated in sum and substance that he had believed his deposition
date to have been January 5, and that he had assumed his deposition to have been called off due to inclement weather on that
date.” (Id. ¶ 14).
The parties re-scheduled Plaintiff's deposition for January 12, 2018. (Id. ¶ 15). Defense counsel sent Plaintiff an overnight
letter “advising him of the deposition date, time and place; again reminding him of his repeated failure to respond to written
discovery, and requesting that he bring completed written discovery to his January 12 deposition.” (Id.; Dkt. No. 35-1, at 25).
Plaintiff did not appear for the January 12, 2018 deposition. (Id. ¶ 16). Defense counsel's “[a]ttempts to contact him at the time
of his deposition proved fruitless, and a voicemail left at the number which had previously been used to communicate with
him, went unanswered.” (Id.)
On February 12, 2018, Defendants filed a motion for summary judgment, or, alternatively, to dismiss for failure to prosecute.
(Dkt. No. 35). Defense counsel states that he has not “heard from the Plaintiff concerning this case since our January 10, 2018
phone call during which he pledged to appear for a January 12 deposition” and that Defendants have never received any written
discovery from Plaintiff. (Dkt. No. 35-1, ¶¶ 16, 18).
Plaintiff's response to Defendants' motion was due by March 5, 2018. (Dkt. No. 35). On March 13, 2018, the Court issued
a Text Order noting that Plaintiff had not filed a response. (Dkt. No. 36). However, because it was unclear whether Plaintiff
had received the “Notification of the Consequences of Failing to Respond to a Summary Judgment Motion” required by Local
Rule 56.2, the Court directed the Clerk of the Court to send Plaintiff a copy of the requisite notice and extended Plaintiff's
response deadline to March 27, 2018. (Id.). The Clerk sent the Text Order and notice via regular and certified mail; the copy
sent via certified mail was returned stamped “unclaimed” and “unable to forward.” (Dkt. No. 37). The copy sent via regular
mail was not returned.
On April 30, 2018, the Court issued the following Text Order:
On 2/12/2018 Defendants filed a motion ... for summary judgment and to dismiss this action for failure to prosecute. On
3/13/2018 ... the Court issued a Text Order directing the Clerk to provide Plaintiff with a copy of the “Notification of the
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Russell v. Terraferma, Not Reported in Fed. Supp. (2018)
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Consequences of Failing to Respond to a Summary Judgment Motion” and extending the date for his response to 3/28/2018.
The copy of the 3/13/2018 Text Order and Notification of Consequences sent by certified mail were returned to the Court
stamped as “unclaimed” and “unable to forward.” The copy sent by regular mail was not returned to the Court. While it
appears that a change of address is not the reason for return of the certified mail, Plaintiff is nevertheless advised that Local
Rule 10.1(c)(2) requires pro se litigants to notify the Court immediately of a change of address and that failure to do so
may result in the dismissal this action. L.R. 41.2(b). In any event, Plaintiff failed to file a response to Defendants' motion.
Further, the docket in this action indicates that Plaintiff failed to appear for an in-person conference on 9/27/2017 (see Text
Minute Entry on 9/27/2017 and Dkt. No. 30), and has made no contact with the Court since 8/31/2017 (see Dkt. No. 28
(status report) ). Accordingly, Defendants' motion to dismiss for failure to prosecute under Rule 41(b) will be granted and
this action will be dismissed unless Plaintiff files, by 5/21/2018, a status report explaining why he has not prosecuted this
action diligently.
*3 (Dkt. No. 38); see also, N.D.N.Y. L.R. 41.2(a) (“Whenever it appears that the plaintiff has failed to prosecute an action or
proceeding diligently, the assigned judge shall order it dismissed.”). The Clerk of the Court sent this Text Order via regular and
certified mail. (Id.). The copy sent via certified mail was returned stamped “refused” and “unable to forward.” (Dkt. No. 39, at
1). The copy sent via regular mail has not been returned. To date, Plaintiff has not responded to Defendants' motion; Plaintiff's
last contact with the Court was on August 31, 2017—nearly nine months ago. (Dkt. No. 28).
III. DISCUSSION
Under Rule 41(b) of the Federal Rules of Civil Procedure, “[i]f the plaintiff fails to prosecute or to comply with [the Federal
Rules of Civil Procedure] or a court order,” a court may dismiss the action. Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370
U.S. 626, 629–30 (1962). Moreover, the Second Circuit has stated that:
[T]he involuntary dismissal is an important tool for preventing undue delays and avoiding docket
congestion. But it is also one of the harshest sanctions at a trial court's disposal, since it usually
extinguishes the plaintiff's cause of action and denies plaintiff his day in court. As a result, it is reserved
for use only in the most extreme circumstances.
U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 250–51 (2d Cir. 2004) (internal citation omitted). The Second Circuit has
further stated that courts “should be especially hesitant to dismiss for procedural deficiencies where the failure is by a pro se
litigant.” Hunter v. N.Y. State Dep't of Correctional Servs., 515 Fed.Appx. 40, 42 (2d Cir. 2013) (quoting Lucas v. Miles, 84
F.3d 532, 535 (2d Cir. 1996) ) (internal punctuation omitted).
When determining whether dismissal for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure is
appropriate, courts must consider the following factors:
whether (1) the plaintiff's failure to prosecute caused a delay of significant duration; (2) plaintiff was
given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by
further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's
right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser
sanctions.
U.S. ex rel. Drake, 375 F.3d at 254. None of these factors is dispositive. Lopez v. Smurfit-Stone Container Enter., Inc., 289
F.R.D. 103, 104–05 (W.D.N.Y. 2013).
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Russell v. Terraferma, Not Reported in Fed. Supp. (2018)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
Considering these factors, the Court concludes that dismissal for failure to prosecute is warranted under the circumstances of
this case. First, Plaintiff's failure to prosecute has delayed this action significantly—it has been pending for more than two
years and Plaintiff has yet to submit to deposition or comply with Defendants' discovery demands. Second, Plaintiff was given
notice that failure to cooperate or appear in connection with this case could result in dismissal. (Dkt. No. 38). Third, Defendants
have been prejudiced by Plaintiff's failure to prosecute this action, (see Dkt. No. 35-1, ¶ 17 (“My office secured the attendance
of a court reporter, at taxpayer expense, for each of the Plaintiff's three missed deposition sessions.”); Dkt. No. 35-3, at 11
(“Defendants have clearly been prejudiced, given that they have not been provided with any materials with which to prepare a
defense in this case.”) ), and are likely to be prejudiced by an indefinite delay in trial should Plaintiff's claims survive summary
judgment. Fourth, while the Court is mindful of Plaintiff's right to be heard, because he has failed to appear for deposition three
times and has made no contact with the Court in nearly nine months, despite the Court's directives, (Dkt. No. 30, 38), the Court
finds that the need to alleviate calendar congestion outweighs Plaintiff's right to a day in court. Fifth, where, as here, Plaintiff
has made no indication that he intends to pursue this action, the Court concludes that a sanction less than dismissal would be
ineffective. Thus, having carefully considered the relevant factors, as well as Plaintiff's status as a pro se litigant, the Court
finds that dismissal is warranted.
IV. CONCLUSION
*4 For these reasons, it is
ORDERED that Defendants' motion to dismiss for failure to prosecute (Dkt. No. 35) is GRANTED; and it is further
ORDERED that Defendants' motion for summary judgment (Dkt. No. 35) is DENIED as moot; and it is further
ORDERED that the Complaint (Dkt. No. 1) is DISMISSED without prejudice; and it is further
ORDERED that the Clerk of the Court serve this Memorandum-Decision and Order in accordance with the Local Rules and
close this case.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 2364285
Footnotes
1 Attempts to reach Plaintiff by telephone were unsuccessful. (Dkt. No. 30).
2 The Clerk of the Court mailed Plaintiff a Pro Se Handbook and Notice on October 2, 2017. (Dkt. No. 31).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Woods v. County of Onondaga, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 5918896
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Rebecca WOODS, Plaintiff,
v.
COUNTY OF ONONDAGA, Defendant.
5:19-cv-760 (BKS/TWD)
|
Signed 12/15/2021
Attorneys and Law Firms
Plaintiff, pro se: Rebecca Woods, Syracuse, NY 13204.
For Defendant: John E. Heisler, Jr., Chief Deputy County Attorney, Onondaga County Dept. of Law, John H. Mulroy Civic
Center, 421 Montgomery St., 10 th Fl., Syracuse, NY 13202.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, United States District Judge:
I. INTRODUCTION
*1 Plaintiff pro se Rebecca Woods brought this action against the County of Onondaga asserting claims under 42 U.S.C. §
1983 and state law arising out of her arrest and charges filed in April 2017. (Dkt. No. 1). On November 22, 2021, the Court
issued an Order to Show Cause directing Plaintiff to file a response as to whether good cause exists to dismiss this action for
failure to prosecute and failure to comply with Court orders. (Dkt. No. 41). Plaintiff did not respond to this Order. For the
reasons set forth below, this action is dismissed under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute
and failure to comply with Court orders.
II. PROCEDURAL HISTORY 1
Plaintiff's original counsel in this matter requested to be relieved of representation on December 31, 2020, and submitted a status
report to the Court identifying Plaintiff's current mailing address on January 8, 2021. (Dkt. Nos. 26, 29). On January 13, 2021,
the Magistrate Judge directed that Plaintiff's counsel be terminated from the docket and noted that Plaintiff “shall be deemed
appearing pro se at the present time.” (Dkt. No. 30). Plaintiff was ordered to notify the Court by February 12, 2021 of her new
counsel. (Id.). The Court's text order stated that “Plaintiff's failure to so notify the Court may result in sanctions including but
not limited to dismissal of the action for failure to prosecute and failure to follow court orders and directives.” (Id.). On February
17, 2021, the Court had not received any communication from Plaintiff. (Dkt. No. 32). Plaintiff was given “a final opportunity
to obtain new counsel or pursue the matter pro se,” and directed to notify the Court of new counsel or file a statement indicating
that she would continue prosecuting the matter pro se by March 12, 2021. (Id.). The Court again noted that failure to so notify
the Court could result in sanctions “including but not limited to dismissal of the action for failure to prosecute and failure to
follow Court orders and directives.” (Id.). Plaintiff did not respond, and the Court therefore presumed that she would proceed
pro se. (Dkt. No. 33).
On October 22, 2021, after this case was assigned to the undersigned, the Court scheduled a telephone conference for November
12, 2021, and warned Plaintiff that her failure to call into the conference “may result in the imposition of sanctions, including
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Woods v. County of Onondaga, Not Reported in Fed. Supp. (2021)
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dismissal of her action with prejudice.” (Dkt. No. 39). A copy of this notice was sent to Plaintiff by regular and certified mail;
the certified mail receipt was returned to the Court unsigned by Plaintiff. (Dkt. Nos. 39, 40). Plaintiff failed to call into the
conference. Counsel for Defendant appeared at the telephone conference on November 12, 2021, and recounted sending letters
to Plaintiff on four different occasions between August and October 2021, asking her to call him to discuss the case. He received
no response from Plaintiff, although his letters were not returned as undeliverable.
*2 On November 22, 2021, the Court issued an Order to Show Cause directing Plaintiff to file a response as to whether this
action should be dismissed for failure to prosecute and failure to follow court orders under N.D.N.Y. L.R. 41.2(a) and Fed. R.
Civ. P. 41(b). (Dkt. No. 33, at 2) (citing Horton v. City of N.Y., 636 F. App'x 822, 823 (2d Cir. 2016) (“[A]lthough the text of
Fed. R. Civ. P. 41(b) expressly addresses only the case in which a defendant moves for dismissal of an action, it is unquestioned
that Rule 41(b) also gives the district court authority to dismiss a plaintiff's case sua sponte for failure to prosecute.” (quoting
LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001))); and then citing Colozzi v. St. Joseph's Hosp. Ctr., No.
08-cv-1220, 2010 WL 3433997, at *2, 2010 U.S. Dist. LEXIS 88685, at *4–5 (N.D.N.Y. July 20, 2010) (“[A] party to an
action pending in a federal district court ... is required to comply with legitimate court directives and to participate in scheduled
proceedings, including status conferences ... The failure of a party to fulfill this obligation provides a basis for the striking of
the offending party's pleadings and the entry of appropriate corresponding relief.”), report-recommendation adopted, 2010 WL
3464155, 2010 U.S. Dist. LEXIS 88736 (N.D.N.Y. Aug. 27, 2010)). The Order directed Plaintiff respond by December 13,
2021, and warned that failure to do so would result in dismissal of this action. (Dkt. No. 41, at 4). The Order was sent to Plaintiff
via regular and certified mail at her last known address, and the copies were not returned to the Court as undeliverable. (See
Dkt. No. 41). Plaintiff did not respond to the Court's Order to Show Cause, and has not communicated with the Court since her
former counsel provided the Court with her mailing address on January 8, 2021. (Dkt. No. 29).
III. DISCUSSION
Under Rule 41(b) of the Federal Rules of Civil Procedure, “[i]f the plaintiff fails to prosecute or to comply with [the Federal
Rules of Civil Procedure] or a court order,” a court may dismiss the action. Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370
U.S. 626, 629–30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Moreover, the Second Circuit has stated that:
[T]he involuntary dismissal is an important tool for preventing undue delays and avoiding docket
congestion. But it is also one of the harshest sanctions at a trial court's disposal, since it usually
extinguishes the plaintiff's cause of action and denies plaintiff his day in court. As a result, it is reserved
for use only in the most extreme circumstances.
U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 250–51 (2d Cir. 2004) (internal citation omitted). The Second Circuit has
further stated that courts “should be especially hesitant to dismiss for procedural deficiencies where the failure is by a pro se
litigant.” Hunter v. N.Y. State Dep't of Correctional Servs., 515 F. App'x 40, 42 (2d Cir. 2013) (quoting Lucas v. Miles, 84 F.3d
532, 535 (2d Cir. 1996)) (internal punctuation omitted).
When determining whether dismissal under Rule 41(b) of the Federal Rules of Civil Procedure is appropriate, courts must
consider the following factors:
whether (1) the plaintiff's failure to prosecute caused a delay of significant duration; (2) plaintiff was
given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by
further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's
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Woods v. County of Onondaga, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser
sanctions.
U.S. ex rel. Drake, 375 F.3d at 254. None of these factors is dispositive. Lopez v. Smurfit-Stone Container Enter., Inc., 289
F.R.D. 103, 104–05 (W.D.N.Y. 2013).
Considering these factors, the Court concludes that dismissal under Rule 41(b) is warranted under the circumstances of this
case. First, Plaintiff has not communicated with the Court in almost a year, despite Court orders, resulting in delay of this action.
Second, Plaintiff was given notice that failure to prosecute or comply with Court orders could result in dismissal of this case on
several occasions. (Dkt. Nos. 30, 32, 39, 41). Third, Defendants would likely be prejudiced by Plaintiff's failure to prosecute this
action and comply with Court orders, delaying discovery and trial indefinitely. Fourth, while the Court is mindful of Plaintiff's
right to be heard, because she has failed to file a response to the Court's Order to Show Cause, (Dkt. No. 41), and has made
no contact with the Court in almost a year, despite the Court's directives, (Dkt. Nos. 30, 32, 39, 41), the Court finds that the
need to alleviate calendar congestion outweighs Plaintiff's right to a day in court. Fifth, where, as here, Plaintiff has made no
indication that she intends to pursue this action, and has repeatedly failed to comply with Court orders, the Court concludes that
a sanction less than dismissal would be ineffective. Thus, having carefully considered the relevant factors, as well as Plaintiff's
status as a pro se litigant, the Court finds that dismissal is warranted.
IV. CONCLUSION
*3 For these reasons, it is hereby
ORDERED that the Complaint (Dkt. No. 1) is DISMISSED without prejudice for failure to prosecute and failure to comply
with Court orders; and it is further
ORDERED that the Clerk of the Court is directed to serve a copy of this Memorandum-Decision and Order in accordance
with the Local Rules and close this case.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 5918896
Footnotes
1 The Court assumes familiarity with the facts and procedural history set forth in the Court's November 22, 2021 Order
to Show Cause and therefore does not repeat them all here. (Dkt. No. 41).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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