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Cho v. Tomczyk


November 2, 2007


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


On August 7, 2007, after the sixty-day period had expired, counsel for defendant On November 30, 2005, the above- submitted a letter to the Court stating that the captioned action was removed from the settlement had not been consummated, and Supreme Court of the State of New York, that, "despite numerous requests from Kings County, to this Court. By letter dated defendants[,] plaintiff has failed to provide the November 16, 2006, counsel for defendant necessary closing documents." (August 7, reported to the Court that the action had been 2007 Letter from Alison D. Metzler, Esq.) settled for the sum total of $2,000. By letter Defendant's counsel also notes that, during dated March 29, 2007, counsel for plaintiff the parties' last conference call with the notified the Court that "[t]he parties have Court, on March 29, 2007, plaintiff's counsel settled the matter and in lieu of a stipulation stated that he was unable to locate his client. of discontinuance, consent to a sixty day (Id.) Because of the plaintiff's failure to closing order." (March 29, 2007 Letter from execute the settlement documents, the $2,000 Andrew Park, Esq.) The Court entered a sixty settlement payment has not been made to the day closing order on April 17, 2007, advising plaintiff. Therefore, defendant requested that that "if settlement is not consummated within the Court now dismiss plaintiff's complaint sixty days of the date of th[e] order, any party with prejudice for failure to prosecute. may apply by letter within the 60-day period for restoration of the action to the calendar of Rather than simply rely on the sixty-day the undersigned, in which event the action closing order, the Court decided to provide will be restored." (April 17, 2007 Order.) plaintiff with one more opportunity to contact the Court before formally dismissing the case court of equity, in the exercise of sound with prejudice under Federal Rule of Civil judicial discretion, has general authority . . . to Procedure 41(b), as requested by defendant. dismiss a cause for want of diligence in Therefore, on August 21, 2007, the Court prosecution or for failure to comply with a issued an Order that gave plaintiff one final reasonable order of the court made in the opportunity to address his failure to comply exercise of a sound judicial discretion."). with the Court's directives by ordering the Moreover, it is well-settled that a district court plaintiff to either (1) consummate the "may act sua sponte to dismiss a suit for settlement agreement and file a stipulation of failure to prosecute." Chambers v. NASCO, discontinuance by September 21, 2007; or (2) Inc., 501 U.S. 32, 44 (1991) (citing Link, 370 seek in writing by September 21, 2007 to re- U.S. at 630); see also Le Sane v. Hall's Sec. open the case and restore the instant action to Analyst, Inc., 239 F.3d 206, 209 (2d Cir. the Court's calendar in order to continue to 2001) ("Although the text of Fed. R. Civ. P. pursue his claims. The Order also warned 41(b) expressly addresses only the case in plaintiff that, if he failed to respond to this which a defendant moves for dismissal of an order, he would forfeit his right to collect action, it is unquestioned that Rule 41(b) also settlement monies pursuant to the settlement gives the district court authority to dismiss a agreement, and the case shall be dismissed plaintiff's case sua sponte for failure to with prejudice without further remedy under prosecute."). the instant complaint. Plaintiff failed to respond to the Court's Order. As set forth Courts have repeatedly found that below, under these circumstances, the "[d]ismissal of an action is warranted when a appropriate remedy is to dismiss the case with litigant, whether represented or instead prejudice. proceeding pro se, fails to comply with legitimate court directives to participate in Rule 41(b) authorizes a district court to scheduled proceedings, including status "dismiss a complaint for failure to comply conferences." Yulle v. Barkley, No. 9:05-CV-with a court order, treating the noncompliance 0802, 2007 WL 2156644, at *2 (N.D.N.Y. as a failure to prosecute." Simmons v. July 25, 2007) (citations omitted). A district Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (citing court contemplating dismissal of a plaintiff's Link v. Wabash R.R. Co., 370 U.S. 626, 633 claim for failure to prosecute and/or to (1962)); see Lucas v. Miles, 84 F.3d 532, comply with a court order pursuant to Rule 534-35 (2d Cir. 1996) ("[D]ismissal [pursuant 41(b) must consider: to Rule 41(b)] is a harsh remedy and is appropriate only in extreme situations."); 1) the duration of plaintiff's failures or Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. non-compliance; 2) whether plaintiff 2004) ("Rule [41(b)] is intended to serve as a had notice that such conduct would rarely employed, but useful, tool of judicial result in dismissal; 3) whether administration available to district courts in prejudice to the defendant is likely to managing their specific cases and general result; 4) whether the court balanced caseload."); see also Refior v. Lansing Drop its interest in managing its docket Forge Co., 124 F.2d 440, 443-44 (6th Cir. against plaintiff's interest in receiving 1942) ("The cited rule [41(b)] enunciates a an opportunity to be heard; and 5) wellsettled [sic] concept of practice that a whether the court adequately considered the efficacy of a sanction requirement. In fact, plaintiff still has not less draconian than dismissal. made any such request. In addition, plaintiff also failed to respond the Court's August 21 Baffa v. Donaldson, Lufkin & Jenrette Sec. Order.

Corp., 222 F.3d 52, 63 (2d Cir. 2000); see, e.g., Lucas, 84 F.3d at 535; Jackson v. City of The Court recognizes that these delays New York, 22 F.3d 71, 74-76 (2d Cir. 1994). apparently are not the fault of plaintiff's In deciding whether dismissal is appropriate, counsel, but rather are a result of counsel's "[g]enerally, no one factor is dispositive." inability to contact his client. However, Nita v. Conn. Dep't of Env. Prot., 16 F.3d plaintiff has a responsibility to provide proper 482, 485 (2d Cir. 1994); see Peart v. City of contact information to his attorney so that his New York, 992 F.2d 458, 461 (2d Cir. 1993) attorney can communicate with him and that ("'[D]ismissal for want of prosecution is a delays in proceeding with this lawsuit can be matter committed to the discretion of the trial avoided. See generally Dumpson v. Goord, judge . . . , [and] the judge's undoubtedly No. 00-CV--6039 CJS, 2004 WL 1638183, at wide latitude is conditioned by certain *3 (W.D.N.Y. July 22, 2004) ("The demand minimal requirements.'") (quoting Merker v. that plaintiffs provide contact information is Rice, 649 F.2d 171, 173-74 (2d Cir. 1981)). no esoteric rule of civil procedure, but rather the obvious minimal requirement for pursuing First, plaintiff has been responsible for a lawsuit."); accord Sanders v. Giannotta, No. numerous delays in this case and has failed to 5:03-CV-1117 (LEK/GJD), 2007 WL 952059, respond to several court orders. This Court at *2-3 (N.D.N.Y. March 29, 2007). was notified of the settlement on November 16, 2006. Following the settlement, Second, the plaintiff was notified, in the defendant's counsel attempted to contact Court's sixty-day closing order, that the case plaintiff to finalize the closing documents on would be discontinued with prejudice. November 16, 2006, January 25, 2007 and Moreover, plaintiff was again warned in the March 7, 2007. On February 21, 2007, the August 21 Order as follows: Court issued an order requiring that the parties file a stipulation by March 21, 2007. On IT IS HEREBY ORDERED that March 20, 2007, defendant's counsel advised plaintiff either (1) consummate the the Court that she had repeatedly attempted to settlement agreement and file a contact plaintiff's counsel in order to finalize stipulation of discontinuance by the closing documents, to no avail. (March September 21, 2007; or (2) seek in 20, 2007 Letter from Alison D. Metzler, Esq.) writing by September 21, 2007 to reIt was not until March 29, 2007, nearly four open the case and restore the instant months after the settlement was reached, that action to the Court's calendar in order plaintiff's counsel finally responded to the to continue to pursue his claims. Court that, in lieu of a stipulation of Should plaintiff fail to respond to this discontinuance, the parties "consent to a sixty order, he shall forfeit his right to closing order." Moreover, even though the collect settlement monies pursuant to settlement was apparently not consummated the settlement agreement, and the case during that period, plaintiff failed to seek to shall be dismissed with prejudice re-open the case within the 60-day time without further remedy under the instant complaint.


For the reasons set forth above, the case is (August 21, 2007 Order, at 2). Thus, the dismissed with prejudice, pursuant to Rule Court has attempted to warn the plaintiff that 41(b) of the Federal Rules of Civil Procedure, noncompliance will result in dismissal. for failure to prosecute. The Clerk of the Court is directed to the close the case. Third, defendant is prejudiced by this delay because, despite an attempt to settle the case, any final resolution of the case has been delayed for many months because of plaintiff's failure to stay in contact with his attorney.


Fourth, plaintiff has been given multiple opportunities and an extended period of time to avoid dismissal of the case, but has shown no indication of any desire to continue to JOSEPH F. BIANCO pursue this action, including any settlement. United States District Judge Because plaintiff has demonstrated no interest in continuing with this action, no sanction less Dated: November 2, 2007 than dismissal will alleviate the prejudice to Central Islip, NY defendant to continue to keep this action open under these circumstances. Moreover, the * * * Court needs to avoid calendar congestion and ensure that there is an orderly and expeditious disposition of cases.

In sum, given the law and the above-referenced factors, dismissal with prejudice for failure to prosecute and comply with the Court's orders is clearly warranted.


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