Newberry v. Moskowitz et al

Filing 27

RULE 41(b) NOTICE and ORDER. Newberry must respond to the defendants' written discovery requests by July 11, 2017, and sit for her deposition by July 31, 2017, or her case will be dismissed for lack of prosecution. Signed by Judge Stefan R. Underhill on 06/20/2017. (Jamieson, K)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JAMIE NEWBERRY,
Plaintiff,
No. 3:16-cv-01455 (SRU)
v.
MATT MOSKOWITZ, et al.,
Defendants.
RULE 41(b) NOTICE AND ORDER
On June 20, 2017, I held a telephone status conference on the record with Rose LongoMcLean, attorney for the plaintiff, Jamie Newberry; and James Newhall Tallberg, attorney for
the defendants, Matt Moskowitz, Katherine Grahn, Tyler Muesel, Nicholas Travisano, and Todd
Kozaryn. The purpose of the conference was to discuss Newberry’s failure both to respond to the
defendants’ written discovery requests and also to sit for her deposition.
Under Federal Rule of Civil Procedure 41(b), I may “dismiss a plaintiff’s case sua sponte
for failure to prosecute.” LeSane v. Hall’s Sec. Analyst, 239 F.3d 206, 209 (2d Cir. 2001).
Dismissal for failure to prosecute is considered a “harsh remedy” and should be “utilized only in
extreme situations.” Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993). Dismissal
must “be proceeded by particular procedural prerequisites, including notice of the sanctionable
conduct, the standard by which it will be assessed, and an opportunity to be heard.” Baptiste v.
Sommers, 768 F.3d 212, 217 (2d Cir. 2014) (internal quotation marks omitted). In addition, I
“must weigh five factors” before dismissing under Rule 41(b), id. at 216, namely:
(1) [whether] the plaintiff’s failure to prosecute caused a delay of
significant duration;
(2) [whether the] plaintiff was given notice that further delay would result
in dismissal;

(3) [whether the] defendant was likely to be prejudiced by further delay;
(4) the need to alleviate court calendar congestion . . . carefully balanced
against [the] plaintiff’s right to an opportunity for a day in court; and
(5) . . . the efficacy of lesser sanctions.
United States ex rel. Drake v. Norden Sys., 375 F.3d 248, 254 (2d Cir. 2004).
Newberry’s failure to participate in discovery has now caused a months-long “delay of
significant duration,” id., which “may be presumed” to have “[p]rejudice[d] . . . [the]
defendants.” See Shannon v. Gen. Elec. Co., 186 F.3d 186, 195 (2d Cir. 1999). In addition,
Attorney Longo-McLean repeatedly has warned Newberry that her suit might be dismissed
should she continue to ignore discovery; Newberry’s continued noncompliance strongly suggests
that “lesser sanctions” would be ineffective. Drake, 375 F.3d at 254. Finally, with regard to “the
need to alleviate court calendar congestion,” id., I am “not at a loss for cases to work on,” and “it
is not an efficient use of . . . time to allow this case to languish on the docket in perpetuity.” See
Lego A/S v. Best-Lock Constr. Toys, __ F.R.D. __, __, 2017 WL 194284, at *10 (D. Conn. 2017).
Newberry hereby is “given notice that further delay w[ill] result in dismissal.” See Drake,
375 F.3d at 254. Newberry must respond to the defendants’ written discovery requests by July
11, 2017, and sit for her deposition by July 31, 2017. If the defendants inform the court that
Newberry has failed to comply with either of those requirements by the dates provided, then I
will dismiss her entire case pursuant to Rule 41(b).

So ordered.
Dated at Bridgeport, Connecticut, this 20th day of June 2017.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
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