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Thompson v. Nationwide Collections

February 2, 2010


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



Presently before this Court is Plaintiff's Motion for Default Judgment and sua sponte consideration of whether this case should be dismissed for failure to prosecute under Rule 41 of the Federal Rules of Civil Procedure. For the following reasons, this case will be dismissed, and Plaintiff's motion will be denied as moot.


On February 4, 2008, Plaintiff Justin Thompson commenced this action under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., by filing a Complaint in the Western District of New York. (Docket No. 1.) Defendant failed to appear and defend this case, leading to the entry of default against it on June 25, 2008. (Docket No. 5.) Plaintiff thereafter took no action.

On April 9, 2009, this Court issued an Order directing Plaintiff to show cause why the case should not be dismissed for failure to prosecute. (Docket No. 6.) Plaintiff responded by filing a Motion for Default Judgment, which this Court made returnable August 6, 2009. Defendant failed to appear on August 6, and this Court therefore directed Plaintiff's counsel to file an affidavit concerning damages by September 8, 2009, at which time this Court would take the Motion for Default Judgment under advisement. Plaintiff failed to file the affidavit as directed.

On November 1, 2009, this Court sua sponte extended the time for Plaintiff to file his damages affidavit to November 13, 2009. On November 3, 2009, Plaintiff's counsel filed an affidavit stating that he attempted to contact Plaintiff by telephone and letter to complete the affidavit, but that Plaintiff did not respond. (Docket No. 16, ¶ 2.) Plaintiff's counsel also sent Plaintiff a proposed affidavit to execute, but Plaintiff never returned it. (Docket No. 16, ¶ 3.) Consequently, Plaintiff's counsel related that he was unable to comply with this Court's Order. (Docket No. 16, ¶ 4.) In the time since November 3, 2009, no affidavit has been filed.


Dismissal of this case is warranted pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, which provides that:

[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).

Where a defendant has not specifically moved for dismissal under Rule 41(b) - such as in this case*fn1 - a court may nonetheless order dismissal sua sponte. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1982); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). In Link, the Supreme Court noted that: "[t]he authority of a court to dismiss sua sponte for lack of prosecution 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."*fn2 Link, 370 U.S. at 630-31.

Rule 41(b) does not define failure to prosecute. But 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, 682 F.2d at 42. 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); see also Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980) (discussing the sanction of dismissal for failure to prosecute as "pungent, rarely used, and conclusive").

The following factors, none of which are dispositive, 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); Nita v. Connecticut Dep't of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994)); Feurtado v. ...

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