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Bhandari v. Aventis

February 1, 2008

VIJAY S. BHANDARI, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF TRINIDAD GARCIA-BHANDARI, PLAINTIFF,
v.
AVENTIS, S.A., USIPHARS.A.R.L., AVENTIS PHARMA, S.A., AVENTIS PHARMA HOLDING GMBH AVENTIS PHARMA AG, AVENTIS PHARMA DEUTSCH LAND GMBH, AVENTIS AND JOHN DOE, DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION AND BACKGROUND

This case was removed from state court on January 23, 2003. Plaintiff Vijay S. Bhandari is suing Defendants on his own behalf and as executor of his deceased wife's estate. Plaintiff filed two actions (see also 03-CV-12*fn1 ) alleging negligence, strict products liability, breach of warranty, fraudulent misrepresentation, and fraudulent concealment relating to the manufacture, marketing, and sale of the drug Avara. Plaintiff alleges that his deceased wife, Trinidad Garcia-Bhandari, was prescribed and began taking Avara in August 2002, which caused severe, irreversible liver damage leading to her death in November 2000.

Defendants in this action are Aventis ( the manufacturer of Avara), and its foreign affiliates.*fn2 Presently before this Court is Defendants' Motion for Summary Judgment and to Dismiss under FED. R. CIV. P. 56 and FED. R. CIV. P. 41. (Docket Nos. 15).*fn3

This case was reassigned to the undersigned on October 17, 2007, after Judge Elfvin elected to take inactive status. On December 17, 2007, this Court directed Plaintiff to file and serve responses to Defendants' Motion by January 4, 2008. This Order advised Plaintiff that failure to file and serve such responses as directed may result in dismissal of the case, either pursuant to Rule 7.1(e) of the Local Rules of Civil Procedure for the United States District Court for the Western District of New York, or under FED. R. CIV. P. 41(b), for failure to prosecute. (Docket No. 16). Plaintiff failed to comply with this Order. To date, no response to the pending motion has been filed.

II. DISCUSSION

FED. R. CIV. P. 41(b), provides that dismissal is warranted:

[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

FED. R. CIV. P. 41(b).

Although Rule 41(b) does not define failure to prosecute, the Second Circuit has stated that failure to prosecute "can evidence itself either in an action lying dormant with no significant activity to move it or in a pattern of dilatory tactics." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). Dismissal pursuant to Rule 41(b) falls within the court's discretion. See id. at 42-43 ("the scope of review of an order of dismissal is confined solely to whether the trial court has exercised its inherent power to manage its affairs within the permissible range of its discretion"). It is, however, "a harsh remedy to be utilized only in extreme situations." Harding v. Fed. Reserve Bank, 707 F.2d 46, 50 (2d Cir. 1983) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972) (per curiam)).

The following factors, none of which are individually determinative, must be considered in determining whether dismissal for failure to prosecute is warranted: (1) the duration of the plaintiff's failures; (2) whether the plaintiff received notice that further delays would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay; (4) whether an appropriate balance has been struck between alleviating the court's calendar congestion and protecting the litigants' due process rights; and (5) whether lesser sanctions would be appropriate. See United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 255 (2d Cir. 2004); Feurtado v. City of New York, 225 F.R.D. 474, 477 (S.D.N.Y. 2004). In the present case, these factors weigh in favor of dismissal.

1. Duration of Failures

The relevant inquiry on this factor is twofold: (a) whether the plaintiff is at fault for failing to prosecute, and (b) whether the plaintiff's failures were of significant duration. See Norden Sys., 375 F.3d at 255. Here, Plaintiff is solely at fault for failing to prosecute this case. He did not pursue any meaningful discovery and failed to comply with a Court order to file a response to Defendants' motions.*fn4 Further, with respect to duration, Plaintiff's inaction in this case has caused an unnecessary delay of more than two years. This is a failure of significant duration, warranting dismissal. See Antonios A. Alevizopoulos & Assoc., Inc. v. Comcast Int'l Holdings, Inc., No. 99 Civ. 9311, 2000 WL 1677984, at *2 (S.D.N.Y. 2000) (finding that delay of four months warranted dismissal).

In particular, the undisputed evidence submitted by the Defendants establishes that the extended discovery period reflected in the March 7, 2005 Scheduling Order was granted by Judge Elfvin at the urging of Plaintiff's counsel. Since then, however, Plaintiff has taken no steps to prosecute either this case or the companion case. He has served no discovery requests upon Defendants, made no motions, and has failed to designate any experts within the two-plus years allowed by the Scheduling Order. In fact, Defendants have had no ...


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