United States District Court, E.D. New York
U.S. EX REL. RELIABLE CONSTRUCTION, PM, INC., Plaintiff,
LAND FROG, INC., et. al, Defendants
Reliable Construction PM, Inc., Plaintiff, Pro se, Brooklyn, NY.
Daniel Bergen, Defendant, Pro se, Massapequa Park, NY.
For Innayah Services, Inc., K& M Construction NY, Corp., Defendants: Konstantinos Volakos, LEAD ATTORNEY, The Volakos Law Firm, P.C., Brooklyn, NY.
REPORT AND RECOMMENDATION
Cheryl L. Pollak, United States Magistrate Judge.
On December 27, 2013, plaintiff Reliable Construction PM, Inc. (" Reliable"), filed a Complaint against defendants Land Frog Inc. (" Land Frog"), Belikos, Inc. (" Belikos"), and Citizens Insurance Company of America (" Citizens"), under the Miller Act, 40 U.S.C. § 3133(b)(3)(B), alleging that defendants had failed to pay for work performed on a construction project for the Veterans Administration. On April 4, 2014, plaintiff filed an Amended Complaint, adding defendants Daniel Bergen, president of Land Frog, Merab Nozadze, president of Belikos, Innayah Services, Inc. (" Innayah"), K& M Construction NY, Corp. (" K& M"), NYC Brokerage Inc. (" NYC Brokerage"), and Saqib Saleem, an alleged officer of Innayah, K& M, and NYC Brokerage.
Although certain defendants, including Citizens, filed answers to the Complaint and Amended Complaint, a default was entered against defendants Land Frog and Bergen on February 5, 2014. Thereafter, on May 21, 2014, Bergen, proceeding pro se, requested leave to file an answer to the Amended Complaint on behalf of himself and Land Frog, and he subsequently moved to dismiss the Complaints against Bergen and Land Frog. On June 5, 2014, the Court denied Bergen's motion to represent Land Frog, and informed him that he could not represent Land Frog, since corporations must be represented by counsel. The Court further Ordered plaintiff to verify that Mr. Bergen had been properly served and to respond to Mr. Bergen's motion to dismiss by June 19, 2014.
On June 6, 2014, Ira D. Wincott, Esq., on behalf of the Milman Labuda Law Group PLLC, moved to withdraw as counsel for plaintiff Reliable, claiming that plaintiff had failed to participate in the prosecution of the case and failed to pay attorneys' fees. Mr. Wincott also requested a stay of the Court's June 5, 2014 Scheduling Order until the motion to withdraw was resolved.
On July 17, 2014, the Court granted Mr. Wincott's motion to withdraw as counsel. The Court Ordered Reliable to obtain counsel within thirty days, and warned that the Court would recommend dismissal of Reliable's claims if plaintiff failed to obtain counsel, since a corporation cannot proceed pro se in federal court. Plaintiff failed to obtain new counsel and did not seek additional time from the Court. Indeed, since July 17, 2014, the Court has heard nothing from plaintiff and no further action has occurred in the case.
On August 20, 2014, Citizens moved to dismiss the action pursuant to Federal Rule of Civil Procedure 41(b) in light of plaintiff's failure to obtain counsel and to prosecute the case. On September 4, 2014, the Honorable Allyne R. Ross referred Citizens' motion to the undersigned.
Federal Rule of Civil Procedure 41(b) provides for involuntary dismissal of an action where the " plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order." The decision whether to dismiss a case for failure to prosecute lies within the discretion of the trial court. Colon v. Mack, 56 F.3d 5, 7 (2d Cir. 1995). The Second Circuit has identified five factors a district court must consider when deciding whether to dismiss a claim for failure to prosecute under Rule 41(b):
 the duration of the plaintiff's failures,  whether the plaintiff had received notice that further delays would result in dismissal,  whether the defendant is likely to be prejudiced by further delay,  whether the district judge has take[n] care to strik[e] the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard . . . and  whether the judge has adequately assessed the efficacy of lesser sanctions.
LeSane v. Hall's Sec. Analyst. Inc.,
239 F.3d 206, 209 (2d Cir. 2001). Although the Court need not consider the factors individually, ...