United States District Court, E.D. New York
DANIEL POPEK and JOANNA POPEK. Plaintiffs,
WELLS FARGO BANK, N.A.; UNION CENTER NATIONAL BANK; CALIBER HOME LOANS; and JOHN DOES 1 THROUGH 10, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
ROSLYNN R. MAUSKOPF United States District Judge
Daniel Popek and Joanna Popek commenced this action through
counsel on November 16, 2015 against defendants Wells Fargo
Bank, N.A. ("Wells Fargo"), Union Center National
Bank ("Union"), and Caliber Home Loans
("Caliber") seeking rescission of a loan agreement
with respect to plaintiffs' home in Staten Island, New
York. (See generally Compl. (Doc. No. 1).)
January 27, 2016, the magistrate judge assigned to this case,
the Honorable Vera M. Scanlon. scheduled an initial
conference for March 4, 2016, and directed plaintiffs'
counsel to serve a copy of the scheduling order on Wells
Fargo, Union, and Caliber, and to file an affidavit of
service by February 8. 2016. (See 1/27/2016
Scheduling Order (Doc. No. 5).) Plaintiffs failed to comply.
On February 18, 2016. plaintiffs were again ordered to so do
and warned that their failure to do so "may result in
sanctions." (See 2/18/2016 Status Report
Order.) Despite Judge Scanlon's directive, plaintiffs
failed to communicate with the Court in any manner.
Judge Scanlon issued an order directing plaintiffs to
"show cause in writing as to why the Court should not
recommend to the District Judge that this action be dismissed
for want of prosecution as Plaintiff[s] ha[ve] taken no
action" since the initial filing of this lawsuit.
(See 3/1/2016 Order to Show Cause.) Plaintiffs
failed to respond to the Order. On September 29, 2016, Judge
Scanlon issued a second such order to show cause.
(See 9/29/2016 Order to Show Cause.) Again,
plaintiffs failed to respond. On October 7, 2016, Judge
Scanlon issued a Report and Recommendation
("R&R") recommending that the action be
dismissed for failure to prosecute. (R&R (Doc. No. 6).)
Judge Scanlon reminded the parties that, pursuant to 28
U.S.C. § 636(b), any objections to the R&R had to be
filed by October 24, 2016. That deadline passed, and no party
filed an objection.
to 28 U.S.C. § 636(b) and Federal Rule of Civil
Procedure ("Rule") 72. the Court has reviewed the
R&R for clear error and, finding none, concurs with the
R&R in its entirety. See Covey v. Simonton, 481
F, Supp. 2d 224, 226 (E.D.N.Y. 2007).
Judge Scanlon correctly noted, Rule 41(b) governs the
dismissal of an action for failure to prosecute, providing
that "[i]f the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant may move to
dismiss the action or any claim against it."
Fed.R.Civ.P. 41 (b). Rule 41 (b) also "gives the
district court authority to dismiss a plaintiffs case sua
sponte for failure to prosecute." LeSane v.
Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d
Cir. 2001); see Storey v. O 'Brien, 482
Fed.App'x 647, 648 (2d Cir. 2012). Dismissals pursuant to
Rule 41 are within the discretion of the Court. See
Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir.
1993) (citing Lyell Theatre Corp. v. Loews Corp.,
682 F.2d 37, 42 (2d Cir. 1982)).
considering whether dismissal is proper, courts consider the
following factors: (1) the duration of plaintiff s failure to
comply with court orders; (2) whether plaintiff was on notice
that failure to comply would result in dismissal: (3) whether
defendant is likely to be prejudiced by further delay in the
proceedings; (4) a balancing of the court's interest in
managing its docket with the plaintiffs interest in receiving
a fair chance to be heard; and (5) whether the judge has
adequately considered a sanction less drastic than dismissal.
See Davis v. Town of Hempstead, 597 Fed.App'x
31, 32 (2d Cir. 2015); Bapliste v. Summers, 768 F.3d
212, 216 (2d Cir. 2014). Generally, no one factor is
dispositive. Id. at 216.
the requisite factors, on balance, support Judge
Scanlon's recommendation. Despite having filed this
action more than one year ago, plaintiffs have taken no
action to move the case forward. To date, plaintiffs have not
filed affidavits of service confirming that any of the
defendants have been served, notwithstanding their
obligations under the Federal Rules and in violation of
several orders issued by this Court to so do. Indeed,
plaintiffs have failed to communicate with the Court in any
way. Judge Scanlon warned plaintiffs on two separate
occasions that their failure to take action could result in
dismissal. Plaintiffs failed to respond and have neglected
this action from its inception. For these reasons, the
balance of factors weigh decisively in favor of dismissal.
it is hereby ordered thai this case is dismissed with
prejudice for failure to prosecute. The Clerk of Court is