Moneywell GRP LLC v. Titan Trucking LLC et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
MONEYWELL GRP LLC,
REPORT
Plaintiff, 	and
v. 	RECOMMENDATION
TITAN TRUCKING LLC, 	25-CV-274-JLS(F)
STANDARD WASTE SERVICES,
TESUI INC.,
SENIOR TRUCKING LLC,
TITAN ENVIRONMENTAL SOLUTIONS, and
JEFFREY JOHN RIZZO,
Defendants.
______________________________________
APPEARANCES: 	LAW OFFICES OF ISAAC GREENFIELD
Attorneys for Plaintiff
ISAAC GREENFIELD, of Counsel
2 Executive Boulevard
Suite 305
Suffern, New York 10901
HESKIN & PROPER PLLC
Attorneys for Defendants
SHANE R. HESKIN, of Counsel
641 Lexington Avenue
14 th Floor
New York, New York 10022
This removal action based on diversity case alleging breach of contract was
referred to the undersigned by Honorable John L. Sinatra, Jr. on April 7, 2025, for all
pretrial matters including preparation of a report and recommendation on dispositive
motions. (Dkt. 10).
Plaintiff is a limited liability company. “It is established that a corporation, which
is an artificial entity that can only act through agents, cannot proceed pro se.” Jones v.
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Niagara Frontier Transp. Authority, 722 F.2d 20, 22 (2d Cir. 1983) (internal citations
omitted). Limited liability companies, as artificial entities, also can only appear through
counsel. See Lattanzio v. COMTA, 481 F.3d 137, 140 (2d Cir. 2007) (“[A] limited
liability company . . . may appear in federal court only through a licensed attorney.”).
Accordingly, because Plaintiff is a limited liability company, it may appear in court only
through counsel.
On March 28, 2025, a request for verification of admission to this court was sent
to Plaintiff’s counsel, Isaac Greenfield (“Greenfield”). When no response was received,
the undersigned, on July 11, 2025, issued an Order to Show Cause (Dkt. 12) (“OTSC”)
directing Plaintiff to show cause by July 21, 2025 why this action should not be
dismissed for lack of representation by an attorney admitted to this court. The OTSC
was mailed to Greenfield and was not returned as undeliverable. To date, no response
to the OTSC has been received.
Rule 41(b) permits the court to dismiss an action if a plaintiff fails to prosecute or
comply with a court order. Further, “‘[w]here a corporate plaintiff fails to appear by
counsel, dismissal for failure to prosecute pursuant to Rule 41(b) . . . is appropriate.’”
Jim Mazz Auto, Inc. v. City of Buffalo, 2023 WL 2501043, at * 4 (W.D.N.Y. Mar. 14,
2023) (quoting Schwartzman v. Label, LLC, 2020 WL 1034373, at *1 (S.D.N.Y. Jan. 22,
2020) (internal quotation marks and citation omitted) (collecting cases)). “[T]he power
of a district court to take such action—while explicitly sanctioned by Rule 41(b)—'has
generally been considered an ‘inherent power,’ governed not by rule or statute but by
the control necessarily vested in courts to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.’” Lewis v. Rawson, 564 F.3d 569, 575 (2d
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Cir. 2009) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962)).
Nevertheless, “dismissal for lack of prosecution is a ‘harsh remedy’ that should ‘be
utilized only in extreme situations.’” Id. at 575-76 (quoting Minnette v. Time Warner,
997 F.2d 1023, 1027 (2d Cir. 1993) (internal quotation omitted)).
In considering dismissal for failure to prosecute, a court must consider five
factors including whether:
(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 trial court adequately assessed the
efficacy of lesser sanctions.
United States ex rel. Drake v. Norden Sys., 375 F.3d 248, 254 (2d Cir. 2004).
Courts “almost exclusively” apply these factors to “instances of litigation misconduct
such as failure to comply with a scheduling order or timely to respond to pending
motions.” Lewis, 564 F.3d at 576. No single factor is dispositive as the determination
whether to dismiss a case for failure to prosecute depends on the factual circumstances
in the case at hand. Id. Here, each of these five factors weighs in favor of dismissal.
With regard to the first factor, since the removal of this action to this court on
March 27, 2025, Plaintiff has not appeared in this action, either pro se or by putative
counsel including, most relevantly, with regard to the OTSC as required by law.
Relevantly, “the duration factor is of limited significance where a party deliberately
disobeys court orders.” Feurtado v. City of New York, 225 F.R.D. 474, 480 (S.D.N.Y.
2004) (citing Peart v. City of New York, 992 F.2d 458, 461 (2d Cir. 1993) (considering
the plaintiff’s delay in prosecution “particularly egregious” because the delay also
violated court orders)). The first factor thus weighs in favor of dismissal.
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The second factor pertaining to notice also weighs in favor of dismissal. In
particular, it is undisputed that Greenfield has twice been directed to provide verification
that he is admitted to this court, including by the March 28, 2025 request for verification,
and the OTSC. Significantly, in the OTSC, Plaintiff was specifically advised that the
case was subject to dismissal for lack of required representation unless it was shown by
July 21, 2025 that an attorney admitted to this court had been retained to represent
Plaintiff. Although the OTSC that was mailed to Greenfield was not returned as
undeliverable, no response to the OTSC was received. Plaintiff thus was on notice that
further delay in obtaining new counsel would result in dismissal.
Regarding the third factor, prejudice in this case can be presumed based on
unreasonable delay. See Peart, 992 F.2d at 462 (citing Lyell Theatre Corp. v. Loews
Corp., 682 F.2d 37, 43 (2d Cir. 1982) (“Prejudice to defendants from unreasonable
delay may be presumed . . . .”)). Here, Plaintiff has twice ignored or defied court orders
to verify representation by an attorney admitted to this court, in accordance with the law,
without any explanation for doing so or a request for an extension of time. The third
factor thus supports dismissal.
As regards the fourth factor pertaining to the need to alleviate court calendar
congestion, although this action has not been scheduled for trial, that the parties have
yet to participate in discovery can be construed as indicating Plaintiff does not wish to
pursue its claims. See Jim Mazz Auto, Inc., 2023 WL 2501043, at *3 (considering the
corporate plaintiffs’ failure to obtain new counsel “suggest[ ] that Plaintiffs no longer
wish to have their day in court.”). “With the court calendar for the Western District of
New York being one of the more heavily congested in the country, dismissal of the
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instant action will permit the court to devote more resources to other actions.” Leroy v.
Amedisys Holding LLC, 2024 WL 3951985, at *2 (W.D.N.Y. July 2, 2024) (citing Shapiro
v. Darel, 2023 WL 5533501, at * 2 (W.D.N.Y. Aug. 4, 2023) (“The United States District
Court for the Western District of New York is a heavily congested court with a large
backlog of cases.”), report and recommendation adopted 2023 WL 5532320 (W.D.N.Y.
Aug. 28, 2023)), report and recommendation adopted, 2024 WL 3950588 (W.D.N.Y.
Aug. 26, 2024). The fourth factor thus weighs in favor of dismissal.
The final factor requiring the court consider the efficacy of lesser sanctions
weighs in favor of dismissal. Although a monetary sanction such as a fine or award of
attorney fees may compensate Defendants for their costs incurred in defending this
action, nothing indicates such sanction would spur Plaintiff to resume actively
prosecuting this case by obtaining new counsel. See Randolph v. Griffin, 2021 WL
795311, at * 3 (W.D.N.Y. Mar. 2, 2021) (“no lesser sanction would be appropriate as
[the plaintiff's] repeated failure to comply with this Court's multiple dismissal warnings
demonstrates that lesser sanctions would be ineffective”) (quoting Ruzsa v. Rubenstein
& Sendy Att'ys at Law, 520 F.3d 176, 178 (2d Cir. 2008) (holding “it is ... unclear that a
‘lesser sanction’ would have proved effective” in light of plaintiff's failure to respond to
district court's notice)).
All five factors thus weigh in favor of dismissing this action for failure to
prosecute.
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CONCLUSION
Based on the foregoing, it is recommended that this action be dismissed
pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute. The Clerk of Court is directed to
send a copy of this Report and Recommendation via first class U.S. Mail to Plaintiff’s
counsel, Isaac Greenfied, Esq., at Law Offices of Isaac H. Greenfield, PLLC, 2
Executive Boulevard, Suite 305, Suffern, New York 10901.
Respectfully submitted,
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: 	December 5, 2025
Buffalo, New York
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ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the Plaintiff and
to the attorneys for Defendants.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: 	December 5, 2025
Buffalo, New York
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