United States District Court, W.D. New York
June 1, 2005.
EUGENE L. TROTTA, Plaintiff,
OCWEN FEDERAL BANK, F.S.B., ASSOCIATES HOME EQUITY SERVICE, FORD CONSUMER FINANCE, JEFFREY A. KOSTERICH ASSOCIATES, P.C., JEFFREY A. KOSTERICH, CHRISTINE SZOEKE, TROY JACKSON, JUDGE FREDERIC T. HENRY, JR., MARGARET BERBERICK, LESLIE COHEN HICKEY, and ANY JOHN DOE. Defendants.
The opinion of the court was delivered by: MICHAEL TELESCA, Senior District Judge
On September 21, 2004, plaintiff was ordered to show cause why this action
should not be dismissed for failure to prosecute pursuant to Rule 41(b) of
the Federal Rules for Civil Procedure and Rule 41.2 of the Local Rules of
Civil Procedure for the Western District of New York. He has failed to
respond to that Order.
Dismissal of an action for failure to prosecute is within the
Court's discretion. Nita v. Connecticut Department of
Environmental Protection, 16 F.3d 482, 485 (2d Cir. 1994). The
Second Circuit Court of Appeals set forth the factors to be
considered in dismissing a case for failure to prosecute in
Alvarez v. Simmons Market Research Bureau, Inc., 839 F.2d 930,
932 (2d Cir. 1988), and reiterated those factors in LeSane v.
Hall's Security Analyst, Inc., 239 F.3d 260 (2d Cir. 2001).
The plaintiff has not pursued this action for several months. He has
failed to respond to the Court's Order to Show Cause, in which he was
advised that the action may be dismissed. Inasmuch as plaintiff has demonstrated no interest in litigating his claims,
the factors set forth in Lucas and Alvarez support dismissal
of plaintiff's claims for failure to prosecute.
Accordingly, pursuant to Federal Rule fo Civil Procedure 41(b)
and Local Rule of Civil Procedure 41.2(b), this action is
dismissed. I hereby certify that any appeal from this judgment
would not be taken in good faith, and deny leave to appeal as a
poor person pursuant to 28 U.S.C. § 1915(a). Should plaintiff
choose to appeal this decision, he must file notice of appeal
with the Clerk's Office, United States District Court for the
Western District of New York, within thirty days of the date of
this judgment in this action. Requests to proceed as on appeal a
poor person must be filed with the United States Court of Appeals
for the Second Circuit in accordance with the requirements of
Rule 24 of the Federal Rules of Appellate Procedure.
ALL OF THE ABOVE IS SO ORDERED.
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