United States District Court, E.D. New York
L. Pollak United States Magistrate Judge
December 8, 2014, Steven Levine and Carmen Fermaint
(collectively, "plaintiffs"), commenced this action
against defendants Pegasus Star Limitada
("Pegasus"), Centam Partners, LLC
("Centam"), UTA Capital, LLC ("UTA"), Ed
Sklar, David Matluck, Michael Starkey, Brian Albury, and
Edwin Acosta Gutierrez (collectively, "defendants"),
raising claims of fraud and breach of contract based on
defendants' conduct relating to the sale of property in
Costa Rica. After plaintiff Steven Levine passed away, the
Court granted a motion on December 7, 2015 to substitute
plaintiff Carmen Fermaint for plaintiff Levine. On April 21,
2016, plaintiff Fermaint filed a letter stating that the
parties had settled the claims against defendants UTA, Ed
Sklar, and David Matluck.
28, 2016, plaintiff filed a letter request asking the court
to approve a "consent judgment" against defendant
Pegasus on the grounds that the corporation was in default,
and was now defunct and without assets. Plaintiff stated that
the judgment was being sought "for tax purposes."
December 7.2016, the Honorable Raymond J. Dearie issued an
Order denying plaintiffs request to enter judgment against
Pegasus "without prejudice to a formal motion for
default judgment, " because plaintiff had not filed the
appropriate supporting papers nor taken the necessary steps
to perfect a motion for default judgment. Since that December
7th Order, it does not appear that plaintiff has taken any
further steps to file an appropriate motion for default
on March 16, 2017, in response to this Court's request
for a status report, plaintiffs counsel filed a letter simply
reiterating plaintiffs request for an entry of judgment
against Pegasus. The district judge has already denied
plaintiffs earlier request to enter judgment against Pegasus
without prejudice to plaintiff filing a proper motion for
default judgment. In the absence of a proper motion and an
inquest hearing, the court simply cannot enter an order of
judgment against Pegasus.
March 17, 2017, this Court Ordered that by March 31, 2017, if
plaintiff failed to comply with Judge Dearie's December
7, 2016 Order requiring her to file a proper motion for
default judgment, "accompanied by proofs of service, the
Clerk's notation of default and accompanying
documentation in accordance with the Local Rules and Federal
Rules of Civil Procedure, " then this Court would
recommend that the claims against Pegasus be dismissed for
failure to prosecute and the case be closed.
the date of this Order, plaintiff still has not filed a
proper motion for default judgment against Pegasus.
Rule 41 of the Federal Rules of Civil Procedure, courts have
the power to dismiss a case for failure to comply with court
orders, treating such noncompliance as a failure to
prosecute. Simmons v. Abuzzo. 49 F.3d 83, 87 (2d
Cir. 1995). A 'dismissal for failure to prosecute may be
ordered sua sponte. LeSane v. Hall's Sec.
Analyst. Inc.. 239 F.3d 206, 209 (2d Cir. 2001) (noting
that "[a]lthough the text of Fed.R.Civ.P. 41(b)
expressly addresses only the case in which a defendant moves
for dismissal of an action, it is unquestioned that Rule
41(b) also gives the district court authority to dismiss a
plaintiffs case sua sponte for failure to
prosecute"); see also Minnette v. Time Warner.
997 F.2d 1023, 1027 (2d Cir. 1993). "Courts have
repeatedly found that dismissal of an action is warranted
when a litigant... fails to comply with legitimate court
directives." Robinson v. Snosato. No. 13 CV
3334, 2014 WL 1699001, at *1 (E.D.N.Y. Apr. 24, 2014). In
considering whether to dismiss an action, courts in this
district consider five factors:
1) the duration of plaintiffs 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 plaintiffs interest in receiving
an opportunity to be heard; and 5) whether the court
adequately considered the efficacy of a sanction less
draconian than dismissal.
Baffa v. Donaldson. Lufkin & Jenrette Sec.
Corp., 222 F.3d 52, 63 (2d Cir. 2000). No one factor is
dispositive in making this determination. See Lewis v.
Rawson. 564 F.3d 569, 576 (2d Cir. 2009).
the Baffa factors weigh in favor of dismissal.
Plaintiff failed to comply with Judge Dearie's December
7, 2016 directive to file a proper motion for default
judgment against Pegasus in accordance with the Federal
Rules. More than four months have passed since the date of
that Order and all that plaintiff has done is file a similar
letter request without the required supporting documentation.
addition, plaintiff failed to timely submit several status
reports in accordance with the deadlines set by this Court.
On February 14, 2017, after plaintiff had filed the
stipulations of discontinuance as to defendants UTA, Ed
Sklar, and David Matluck, this Court Ordered plaintiff to
file a status letter by March 14, 2017 indicating how
plaintiff planned to proceed with respect to the remaining
defendants. Plaintiff belatedly submitted a status letter on
March 16, 2017. Thereafter, this Court Ordered plaintiff to
file a proper motion for default judgment against Pegasus by
March 31, 2017, Plaintiff once again failed to meet this
Court's deadline, despite the Court's explicit
warning that failure to comply might result in a
recommendation that the claims against Pegasus be dismissed
and the case against Pegasus be closed. Moreover, despite
settling the claims against defendants UTA, Sklar, and
Matluck in February, plaintiff has taken no further steps to
pursue the claims against the remaining individual
defendants, Starkey,  Albury,  and Gutierrez.
the posture of this case, the prejudice to plaintiff that
would be caused by dismissal for failure to prosecute is
minimal. Plaintiff has already settled her claims against
three of the defendants in this case. In her March 16, 2017
status letter, plaintiffs counsel noted that although Pegasus
is no longer in existence and is believed to be defunct,
plaintiff would seek a default judgment against Pegasus
"for tax purposes." (Pl's 3/16/17 Ltr. at 1).
Therefore, the Court finds that the potential prejudice to
plaintiff that would be caused by the dismissal of her claims
against Pegasus would be minimal, given Pegasus's defunct