United States District Court, E.D. New York
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, United States District Judge.
John Golden brings this action, filed on March 21, 2014,
against defendants Tapestry Medical Inc.
("Tapestry"), Alere, Inc. ("Alere"),
Alere Home Monitoring, Inc. ("Alere Home
Monitoring"), Alere San Diego, Inc. ("Alere San
Diego"), Triad Pharmaceutical, Inc. ("Triad
Pharmaceutical"), Triad Group, Inc. ("Triad
Group") and H&P Industries, Inc.
("H&P") asserting claims for negligence, strict
liability and breach of warranty arising from the manufacture
and sale of alcohol prep pads, swabs and swab sticks. (Compl.
(Doc. No. 1).) On July 17, 2014, Magistrate Judge James
Orenstein directed Golden to file proof of timely service on
defendants, warning that he would recommend dismissal for
failure to prosecute if Golden did not. On July 25, 2014, one
day after Judge Orenstein's deadline passed, Golden filed
an affidavit attesting to timely service on all seven
defendants. Tapestry, Alere, Alere Home Monitoring and Alere
San Diego subsequently entered appearances in this action,
settled with Golden, and, along with Golden, filed a
stipulation of dismissal with prejudice as to the claims
among them. (Doc. Nos. 5-9.)
remaining defendants, Triad Pharmaceutical, Triad Group and
H&P, never appeared, and Golden has done nothing to
prosecute his claims against them after filing his proof of
service. On December 4, 2014, Judge Orenstein
issued an order to show cause by December 11, 2014 as to why
he should not recommend that Golden's claims against the
non-appearing defendants be dismissed for failure to
prosecute. Golden has not responded.
December 17, 2014, Judge Orenstein issued a Report and
Recommendation ("R&R") recommending that
Golden's claims against the remaining defendants be
dismissed with prejudice for failure to prosecute. (R&R
(Doc. No. 10).) In his R&R, Judge Orenstein noted that,
pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of
Civil Procedure ("Rule") 72(b), any failure to file
objections to the R&R or objections designating the
particular issues to be reviewed by January 5, 2015 would
waive the right to appeal the district court's order.
That deadline has now passed, and Golden has neither filed an
objection nor communicated with the Court in any fashion
regarding the non-appearing defendants.
reviewing an R&R, a district court "may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C.
§ 636(b)(1)(C). Where no "specific, written
objection" is made, the Court may, but is not required
to, accept the magistrate's findings absent clear error.
See Fed. R. Civ. P. 72(b); Keating v. Leviton
Mfg. Co., Inc., No. 06-CV-6027(JFB)(ARL), 2009 U.S.
Dist. LEXIS 6839, at *2-3, 6 n.l (E.D.N.Y. Jan. 30, 2009).
Finding no clear error, this court adopts the findings and
recommendations contained in the R&R as to dismissal of
district court contemplating dismissal for failure to
prosecute must consider five factors:
 the duration of the plaintiffs failures,  whether
plaintiff had received notice that further delays would
result in dismissal,  whether the defendant is likely to
be prejudiced by further delay,  . . . the balance between
alleviating court calendar congestion and protecting a
party's right to due process and a fair chance to be
heard, and  . . . the efficacy of lesser sanctions.
Shannon v. Gen. Elec. Co., 186 F.3d 186, 193-94 (2d
Cir. 1999) (quoting Nita v. Connecticut Dep 7 of
Envtl. Protection, 16 F.3d 482, 485 (2d Cir. 1994)). No
one factor is dispositive, Id. In Shannon,
the Second Circuit affirmed a district court's dismissal
as a sound exercise of discretion where it found that,
viewing the record as a whole, these factors could support
such a sanction. Id. Viewing the record as a whole,
dismissal is warranted in this case.
the first factor, as Judge Orenstein notes, Golden did not
file proof of service until prompted to do so, has
subsequently taken no action to obtain default against the
non-appearing defendants for almost three years and has
provided no response to multiple orders from Judge Orenstein
concerning the prosecution of its case against the
non-appearing defendants, including his order to show cause.
(See R&R, at 3.) Under the circumstances, a
delay of almost three years weighs in favor of dismissal.
See Aguilar v. Kirschenbaum & Phillips, P.C.,
No. 11-CV-1085 (SJF) (WDW), 2012 U.S. Dist. LEXIS 68638, at
*8-9 (E.D.N.Y. May 15, 2012) (finding that period of
plaintiff inaction of between five and six months weighed in
favor of dismissal).
the second factor, Golden was clearly on notice that further
delay would result in dismissal, with a warning that failure
to take action by November 5, 2014 would result in Judge
Orenstein deeming Golden to have abandoned his claims against
the non-appearing defendants. Judge Orenstein provided
further notice on December 4, 2014 in issuing an order to
show cause. In the intervening period between Judge
Orenstein's warning and his issuing of an order to show
cause, Golden signed the stipulation of dismissal with the
appearing defendants, indicating that Golden was otherwise
engaged in this case and would have been aware of Judge
Orenstein's orders. Finally, Judge Orenstein provided
notice in the form of his R&R, which recommended
dismissal with prejudice, and to which Golden made no
the third factor, prejudice to defendants arising from an
unreasonable delay in prosecution may be presumed. Lyell
Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir.
1982). Although the need to show actual prejudice is much
greater where the delay is moderate and excusable, and
although the delay here is much shorter than the seven-year
delay in Lyell Theatre Corp., Golden here has
offered no excuse despite ample opportunity to do so. See
Id. Given the lack of explanation from a plaintiff
otherwise engaged in the case, this factor weighs neutrally
on the subject of dismissal, at best.
the fourth factor, Judge Orenstein's extension of the
time to serve defendants, his October 15, 2014 order, his
order to show cause and the opportunity to object to his
R&R preserved Golden's due process rights and
opportunity to be heard at each stage. Golden has made no
effort to assert those rights. Thus, the interest in
alleviating court calendar congestion -congestion exacerbated
by Golden's non-responsiveness - outweighs any interest
in preserving the due process rights of a party that, despite
multiple opportunities, has expressed no interest in
given the repeated warnings and opportunities provided by
Judge Orenstein to Golden, and the lack of any response to
these warnings, it is unlikely that a sanction short of
dismissal would be effective. See Brow v. City of New
York, 391 Fed.Appx. 935, 937 (2d Cir. 2010) (upholding
dismissal on finding that plaintiffs failure to comply with
order warning of possible dismissal demonstrated that lesser
sanctions would be ineffective). Absent clear language to the
contrary, dismissal for failure to prosecute is presumed to
be on the merits, and thus with prejudice. Fed.R.Civ.P. 41
(b) ("Unless the dismissal order states otherwise, a
dismissal under this subdivision . . . operates as an
adjudication on the merits."); Storey v.
O'Brien, 482 Fed.Appx. 647, 648 (2d Cir. 2012)
("[S]ince an adjudication on the merits is the
functional equivalent of an order of dismissal with
prejudice, the district court's dismissal is deemed with
it is difficult to construe Golden's actions as
expressing anything less than complete ambivalence as to the
disposition of its claims against the non-appearing
defendants. Although Golden has been actively engaged in
certain aspects of this case, with respect to the
non-appearing defendants, he has ignored multiple orders and
filed no objection to the instant R&R which recommended
dismissal with prejudice. The "continued pattern of
inaction" present in this case justifies dismissal with
prejudice. See Liberty Mut. Ins. Co. v. Bella Transp.,
~No. 07-CV-716 (CBA) (JO), 2009 WL 1606489, at *6
(E.D.N.Y. June 8, 2009) (adopting Liberty Mut. Ins. Co.