United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
the Court is defendant's renewed motion to dismiss the
second amended complaint pursuant to Federal Rule of Civil
Procedure 41(b), citing pro se plaintiff's
inability to prosecute this case because of his deportation
from this country for his convictions for Medicaid fraud. The
Court previously deferred ruling on defendant's motion
because, although the relevant case law indicates that
dismissal is warranted in such cases, it is inappropriate
unless the Court gives the plaintiff a reasonable opportunity
to rectify his deportation order. The Court granted plaintiff
60 days to either rectify his immigration status or to submit
a letter update to the Court regarding the disposition of any
matters, either before the Department of Homeland Security or
a federal court, relating to his immigration status.
Court further advised plaintiff that if his immigration
status was not resolved or if he failed to apprise the Court
of the status of his efforts, this case may be dismissed.
Plaintiff's 60 days has expired without any update from
plaintiff. After defendant renewed its motion, however,
plaintiff opposed, advising that his visa application
remained pending. For the following reasons, defendant's
motion to dismiss is granted and plaintiff's complaint is
dismissed with prejudice.
Rule of Civil Procedure 41(b) authorizes a district court to
“dismiss a complaint for failure to comply with a court
order, treating the noncompliance as a failure to
prosecute.” Simmons v. Abruzzo, 49 F.3d 83, 87
(2d Cir. 1995); see also Wynder v. McMahon, 360 F.3d
73, 79 (2d Cir. 2004) (“Rule [41(b) ] is intended to
serve as a rarely employed, but useful, tool of judicial
administration available to district courts in managing their
specific cases and general caseload.”). Dismissal may
be warranted when the plaintiff, either represented or
proceeding pro se, fails to comply with legitimate
court directives. Yulle v. Barkley, No.
9:05-CV-0802, 2007 WL 2156644, at *2 (N.D.N.Y. July 25,
there is no reasonable possibility that a pro se
plaintiff can appear at trial because of deportation, the
court may dismiss the case for failure to prosecute after
providing plaintiff with a reasonable time to rectify the
order of deportation.” Kuar v. Mawn, No.
08-CV-4401, 2012 WL 3808620, at *6 (E.D.N.Y. Sept. 4, 2012);
see also Brown v. Wright, No. 05-CV-82, 2008 WL
346347, at *4 (N.D.N.Y. Feb. 6, 2008) (“Before the
harsh remedy of dismissal is imposed based on
[plaintiff's] failure to appear in person for a trial,
[plaintiff] should be afforded an opportunity to obtain
lawful re-admission to the United States.”); Fox v.
Tryon, No. 15-CV-6196, 2016 WL 4558325, at *2 (W.D.N.Y.
Sept. 1, 2016) (giving a removed plaintiff 60 days to rectify
his deportation order).
district court considering the dismissal of a plaintiff's
claim for failure to prosecute pursuant to Rule 41(b) must
consider the following factors:
1) the duration of plaintiff's failures or
non-compliance; 2) whether plaintiff had notice that such
conduct would result in dismissal; 3) whether prejudice to
the defendant is likely to result; 4) whether the court
balanced its interest in managing its docket against
plaintiff's interest in receiving an opportunity to be
heard; and 5) whether the court adequately considered the
efficacy of a sanction less draconian than dismissal.
Bafa v. Donaldson, Lufkin & Jenrette Sec. Corp.,
222 F.3d 52, 63 (2d Cir. 2000). When the deportation of
plaintiff provides the basis for the defendant's Rule
41(b) motion, these same five factors should be considered.
See, e.g., Reynoso v. Selsky, No.
02-CV-6318, 2011 WL 3322414, at *3 (W.D.N.Y. Aug. 2, 2011). A
plaintiff proceeding pro se who cannot return to the
United States to prosecute his case will inherently satisfy
these four of the five factors: plaintiff's duration of
non-compliance with a trial order will be indefinite;
defendant will certainly be prejudiced in being burdened with
the costs of litigating a matter but being left to wait
indefinitely to reach the closure of a verdict; the
Court's interest in managing its docket disfavors
permitting a case to languish indefinitely; and there is no
other alternative for the Court.
respect to the second factor, notice to plaintiff, the Court
effected notice when it deferred ruling on the motion to
dismiss when defendant first raised it, instead giving
plaintiff a chance to rectify his status or update the Court.
Plaintiff has not rectified his status, and all that he
offers the Court is that his visa application remains pending
and was not denied. This is not enough; defendant cannot be
left in limbo indefinitely for until the immigration
authorities act on his application. In addition, it is
relevant to consider the substantial likelihood that
plaintiff will not be allowed to return because, under 8
U.S.C. § 1182(a)(2)(A)(i)(I), “any alien convicted
of, or who admits having committed, or who admits committing
acts which constitute the essential elements of a crime
involving moral turpitude, ” which includes fraud, is
“ineligible to receive visas and ineligible to be
admitted to the United States.” That is plaintiff's
motions to dismiss   are granted, and plaintiff's
second amended complaint is dismissed pursuant to Federal
Rule of Civil Procedure 41(b). ...