UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
May 23, 2011
MICHAEL SENOVICH, LYNN SENOVICH PLAINTIFF(S)
UNITED HEALTHCARE INSURANCE COMPANY, ET AL DEFENDANT(S)
The opinion of the court was delivered by: Michael A. Telesca United States District Judge
On April 18, 2011, plaintiffs were ordered to show cause no later than May 18, 2011, why this action should not be dismissed for failure to prosecute pursuant to Rule 41(b) of the Local Rules of Civil Procedure for the Western District of New York. The plaintiffs have not responded to the order.
Dismissal of an action for failure to prosecute is within the court's discretion. Nita v. Connecticut Dep't of Environmental Protection, 16 F.3d 482, 485 (2d Cir. 1994) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962); Harding v. Federal Reserve Bank of New York, 707 F.2d 46, 50 (2d Cir. 1983)). The Second Circuit 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 these factors in LeSane v. Hall's Security Analyst, Inc., 239 F.3d 206 (2d Cir. 2001) (citing Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)).
Plaintiffs have not pursued this action for several months. They have failed to respond to the Court's Order to Show Cause, in which they were advised that the action may be dismissed. Inasmuch as plaintiffs have 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 of Civil Procedure 41(b) and Local Rule of Civil Procedure 41(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). Plaintiffs must file any notice of appeal with the Clerk's Office, United States District Court, Western District of New York, within 30 days of the date of judgment in this action. Requests to proceed on appeal as 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.
IT IS SO ORDERED.
MICHAEL A. TELESCA
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