Trim v. Burlington Coat Factory Direct Corporation et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANTHONY TRIM, 	:
:
Plaintiff, 	: 	SUA SPONTE REPORT AND
: 	RECOMMENDATION
-versus- 	: 	24-CV-6170 (MKB) (CHK)
:
BURLINGTON COAT FACTORY DIRECT 	:
CORPORATION, BURLINGTON STORES, 	:
INC., 	:
:
Defendants. 	:
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CLAY H. KAMINSKY, United States Magistrate Judge:
I respectfully recommend that this action be dismissed for failure to prosecute
pursuant to Federal Rule of Civil Procedure 41(b).
Plaintiff Anthony Trim commenced this personal-injury action in New York
Supreme Court, County of Kings, on May 3, 2024, and Defendants Burlington Coat
Factory Direct Corporation and Burlington Stores, Inc. removed it to this Court on
September 4, 2024 on the basis of diversity jurisdiction. The case was referred to
court-annexed mediation by the Honorable Peggy Kuo, United States Magistrate
Judge, on November 22, 2024, but the mediation was unsuccessful and discovery
commenced. 	The 	case 	was 	reassigned 	to 	the 	undersigned 	for 	general 	pretrial
supervision on August 14, 2025.
On September 2, 2025, Defendants moved for an extension of time to complete
discovery, principally because Plaintiff had failed to provide medical releases in a
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timely manner. On September 9, 2025, the Court held a status conference, extended
discovery, and ordered counsel to submit a status report every two weeks to ensure
that the parties were timely attending to their discovery obligations. Discovery was
scheduled to close on November 17, 2025.
On October 17, 2025, Defendants submitted a status report informing the
Court that several of Plaintiff’s outstanding medical records releases had gone
unexecuted and that Plaintiff had failed to appear at two separately scheduled
independent medical examination appointments. At Defendants’ request, the Court
scheduled a status conference to discuss these issues. When Plaintiff’s counsel failed
to appear at that status conference on November 6, 2025, the Court issued an Order
to Show Cause directing Plaintiff to show cause by November 14, 2025 why this case
should not be dismissed for failure to prosecute. The Court received no response.
The Second Circuit has stated:
The correctness of a Rule 41(b) dismissal is determined in light of 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.
Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (cleaned up). On the first factor,
although Mr. Trim’s failure to comply with this Court’s latest order has not lasted a
significant duration of time, his consistent disregard for his own obligations in this
case long predates the order eventually triggered by that conduct. On the second
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factor, Plaintiff was indeed on notice that failure to comply with this Court’s order
would result in dismissal. On the third factor, Defendants have been prejudiced by
Plaintiff’s lack of diligence and the delay of this matter; they have unnecessarily spent
resources on attorney’s fees and medical examiner fees while Plaintiff and his counsel
failed to appear as required. As to the fourth factor, Plaintiff has shown little interest
in being heard and that the Court’s interest in managing its docket now outweighs
Plaintiff’s interest in continuing this action. And finally, the undersigned has
considered and attempted remedies less drastic than dismissal over the past several
months, but those less drastic measures have failed to spur Plaintiff to adequately
prosecute this case. Accordingly, I find that all five of the Lucas factors weigh in favor
of dismissal under Rule 41(b).
Accordingly, because Plaintiff has failed to prosecute this case and to comply
with a Court order, I respectfully recommend that this action be dismissed pursuant
to Fed. R. Civ. P. 41(b).
Any objections to this Report and Recommendation must be filed within
fourteen (14) days of receipt of this report. Failure to file objections within the
specified time waives the right to appeal the District Court’s Order. See 28 U.S.C. §
636(b)(1)(C); Fed. R. Civ. P. 72(b)(2); Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d
Cir. 2008).
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SO ORDERED.
Dated: Brooklyn, New York
November 20, 2025
__________________________________
Clay H. Kaminsky
United States Magistrate Judge
/s/ Clay H. Kaminsky
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