Harvey v. Greenwich et al

Filing 164

ORDER: For the reasons set forth in the attached order, Kordick's motion to dismiss, doc. no. 130, is granted and this case is dismissed with prejudice. All remaining motions 129 133 134 145 157 160 are denied as moot. The Clerk is directed to enter judgment in accordance with the terms of this order and close this case. Signed by Judge Stefan R. Underhill on 8/17/2022. (Guerrier, C.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

RUSSEL HARVEY,
Plaintiff,

No. 3:17-cv-1417 (SRU)

v.
TOWN OF GREENWICH, et al.,
Defendants.
ORDER
Nearly five years ago, Russel Harvey (“Harvey”) commenced this lawsuit against several
Defendants—Police Officer Mark Kordick (“Kordick”), the Town of Greenwich, and State’s
Attorney Steven Weiss—for conduct that allegedly occurred over two decades ago. Principally,
Harvey alleges that Kordick and other officers, “illegally entered [his] apartment, wrongfully
arrested [him], used excessive force to beat [him], … threatened [him] with additional bodily
injury and death, wrongfully jailed [him], and through perjurious statements in their police
[reports and complaints], brought criminal charges against [him].” Am. Compl., Doc. No. 11, at
¶ 1.
Kordick, the only remaining Defendant, now moves to dismiss the case, doc. nos. 130,
134, due to Harvey’s failure to comply with several of my orders directing Harvey to produce all
outstanding discovery.
For the reasons stated below, Kordick’s motion to dismiss, doc. no. 130, is granted.
I.

BACKGROUND
A. Factual Allegations
Nearly thirty years ago, Harvey moved to Greenwich, Connecticut from his hometown of

Mamaroneck, New York. Id. at ¶ 9. The relocation was precipitated by a legal battle between
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Harvey and the Mamaroneck Police Department, which culminated in Harvey receiving a
substantial settlement. Id. Upon his move, Harvey was met with the same harassment that he had
received from Mamaroneck Police Department, only this time from the Greenwich Police
Department. Id. at ¶¶ 9, 11–12. One instance of harassment is of significance.
On August 19, 1996, several Greenwich Police Officers forcefully entered Harvey’s
home without a warrant and brutally assaulted him. Id. at ¶¶ 25–45. Officer Kordick arrested
Harvey for disorderly conduct and interfering with an officer. Id. at ¶¶ 45, 49. Several days later,
Harvey appeared in court and entered a plea of not guilty, maintaining that the arrest was in
violation of his Fourth and Sixth Amendments rights. Id. at ¶ 60.
As the case was pending, Harvey continued to experience harassment from Officer
Kordick and other officers alike. Id. at ¶¶ 62–63. In fact, it reached a point where Harvey’s
counsel recommended that Harvey move because he “didn’t want to feel responsible if [Harvey]
stayed in Greenwich and the police killed [him].” Id. at ¶ 64. Acting on that advice, Harvey
moved to California. Id. at ¶¶ 65, 78.
In California, the abuse continued. Previously, Harvey was not required to attend the
Connecticut criminal court proceedings in-person. Id. at ¶ 66. But his attorney filed a motion to
withdraw from the case, and in doing so, made false statements about Harvey. Id. at ¶¶ 78–83.
Nonetheless, the motion was granted, which prompted the judge to increase Harvey’s bond to
$5,000 and issue a capias to compel his appearance at the next court date in Connecticut. Id. at ¶
86. Further, Greenwich Police faxed authorities in Santa Monica, California a warrant
demanding that Harvey be arrested and held for extradition. Id. at ¶ 87. As a result, Harvey was
jailed for 36 hours and held on $5,000 bail. Id.

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Ultimately, Harvey’s criminal case was not dismissed until August 20, 2015 because of
“the misconduct by the Greenwich Police and the Prosecutor.” Id. at ¶ 1, 87, 91.
B. Procedural History
Against Kordick, Harvey brought four claims—false arrest, excessive force, malicious
prosecution and slander. Kordick moved to dismiss all the claims against him. After rounds of
briefing and oral argument on the issue, I permitted only the malicious prosecution claim to go
forward. 1 See Harvey v. Town of Greenwich, 2019 WL 1440385, at *8 (D. Conn. Mar. 31, 2019).
To reach that holding, I explained that in order to prevail on his malicious prosecution
claim, Harvey needed to establish that he “suffered a post-arraignment liberty restraint sufficient
to implicate his Fourth Amendment rights.” Turner v. Boyle, 116 F. Supp. 3d 58, 85 (D. Conn.
2015); see also Rohman v. New York City Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000) (“In
order to allege a cause of action for malicious prosecution under [section] 1983, [plaintiff] must
assert ... that there was [ ] a sufficient post-arraignment liberty restraint to implicate the
plaintiff’s Fourth Amendment rights.”) (cleaned up). Importantly, I held that Harvey had
“sufficiently alleged a seizure for purposes of his malicious prosecution claim” based on his
allegations that:
(1) A Connecticut state court judge increased Harvey’s bond in Connecticut to
$5,000 and issued a capias to compel Harvey’s appearance at a subsequent court
date; and
(2) Greenwich Police contacted authorities in Santa Monica, California and asked
that Harvey be held for extradition, at which point Harvey was jailed for 36
hours and held on $5,000 bail.
The remaining claims were dismissed with prejudice because they were barred by the statute of limitations. See
Conf. Memo. and Order, Doc. No. 38, at 2. As for the instant claim, the statute of limitations does not begin to run
on a federal malicious prosecution claim until the claimant obtains a favorable termination.” Gojcaj v. City of
Danbury, 2016 WL 67688, at *6 (D. Conn. 2016). The charges against Harvey were dismissed on August 20, 2015
and he filed his complaint on August 22, 2017, well within the three-year statute of limitations. See Lounsbury v.
Jeffries, 25 F.3d 131, 1333–34 (2d Cir. 1994).

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See Harvey, 2019 WL at 1440385 *9; see also Am. Compl., Doc. No. 11, at ¶¶ 86–87. Since that
ruling, this case has badly stagnated.
i.

First Extension
Discovery was initially set to be completed by May 26, 2020. Acting on that timeline,

Harvey served Kordick with a discovery request in November 2019. See Request for a Status
Conf., Doc. No. 65, at 1. 2 Kordick produced the responsive documents to Harvey on March 20,
2020. Id. at 2.
Around the same time, Kordick served Harvey with a written discovery request 3 in
December 2019. Id. A month later, Harvey requested a 30-day extension of time to respond to
Kordick’s discovery request. Id. Kordick agreed. Id. Sometime in March 2020, notably the
period when the coronavirus hit the United States, Harvey contacted Kordick to suggest that the
parties file a joint motion to extend the discovery deadlines by six months. Id. Kordick stated that
he was amenable to an extension but requested a shorter duration. Id. at 2–3. No motion
followed.
In May 2020, Kordick contacted Harvey to obtain a status update. Id. at 3. At that point,
Harvey indicated that he still required a six-month extension. Id. On May 26, 2020, the date
discovery was set to be completed, Kordick filed a motion requesting a status conference to
discuss the scheduling order. Id. at 1. Three days after the close of discovery, Harvey filed a
motion for an extension of time. See Mot. for Extension of Time, Doc. No. 68. In it, Harvey
contended that:
While I can respond to some of these requests, I cannot respond to others due to the
COVID-19 [p]andemic. Some of the documents requested are in a storage facility,
The motion was docketed as a motion for an extension of time but is captioned “Request for Status Conference
Concerning Modification to the Scheduling Order.”
3
That request included: (1) Kordick’s first set of interrogatories; and (2) requests for production. See Doc. No. 65-1.
2

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in another [s]tate, more than 2,000 [miles] from my home. Though I had saved for
and planned a trip to retrieve those documents earlier this year, the [q]uarantine
[l]ockdown completely disabled me from making this trip earlier. Now, and in the
[immediate] future, even as some restrictions are being lifted, this trip remains both
unsafe, impracticable and unduly burdensome.
Id. at ¶ 7.
On June 15, 2020, I held a telephonic status conference with the parties. See Conf.
Memo. and Order, Doc. No. 72. During that conference, I reset the discovery deadlines and
ordered that: (1) by September 15, 2020, Harvey must respond to Kordick’s already-served
interrogatories and requests for production; and (2) by December 15, 2020, all discovery shall be
completed. Id.
ii.

Second Extension
On November 11, 2020, Kordick filed a consent motion seeking to extend the discovery

deadline by four months. See Mot. for Extension of Time, Doc. No. 81. The extension was
requested because, among other things, Harvey had failed to respond to Kordick’s written
discovery requests by the court-imposed deadline of September 15, 2020. Id. at 2. Instead,
Harvey had waited until October 9, 2020 and October 19, 2020 to provide responses and
objections. Id.; Pl.’s Answer to Interrogatories, Doc. 82-2.
The next day, on November 12, 2020, Kordick filed a motion to compel seeking
Harvey’s responses to the outstanding discovery. Doc. No. 82. I held a status conference on
December 2, 2020. See Conf. Memo. and Order, Doc. No. 86. On that call, we discussed the
need for Harvey to produce the audio tapes and documents that he has in storage in California.
Id. at 1–2. Because Harvey largely agreed that he needed to produce the documents but was
awaiting a time to travel, I denied the motion to compel without prejudice. Id. at 2. Additionally,
I granted the parties’ consent motion for an extension of time and held that all discovery needed

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to be completed by April 15, 2021 with the caveat that Harvey may make a motion for an
extension of time should that timeline prove to be infeasible. Id. at 1–2.
iii.

Third Extension
Anticipating the April 2021 discovery deadline, Kordick filed a second motion to compel,

doc. no. 88, with an accompanying memorandum, doc. no. 90, in February 2021. This time,
Kordick sought an order compelling Harvey to comply with the requests for production,
including producing the audio tapes and documents in storage. See Mot. to Compel, Doc. No. 88,
at 2. On March 23, 2021, Kordick filed a second motion to modify the scheduling order because
he had “not received numerous items ordered by the Court.” See Second Mot. for Extension of
Time, Doc. No. 93.
On March 30, 2021, I held a status conference to discuss both motions. See Conf. Memo.
and Order, Doc. No. 98. Following that conference, I issued several relevant discovery orders
(“April 2021 Order”). First, I ordered that, by May 31, 2021, Harvey needed to produce “all
relevant documents within his possession, custody, or control regarding the case or cases brought
against him in California that are described in his amended complaint.” Id. at 1. I also ordered
that, by July 1, 2021, Harvey needed to produce:
(1) relevant documents regarding those California case(s) that are not currently
within his possession, custody, or control because they are sealed court
records;
(2) all relevant recordings of Mark Kordick within his possession, custody, or
control, including a relevant recording that is in storage in California;
(3) all relevant recordings of incidents involving police officers at his home in
1996 and any and all transcripts of such recordings within his possession,
custody, or control; and
(4) the photographs in his possession, custody, or control that are referenced in
paragraph 56 of the amended complaint, which apparently depict his
injuries.

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Id. at 1–2. As reflected in the April 2021 Order, I indicated that those deadlines could be
extended for good cause. Id. at 2.
iv.

Fourth Extension
In June 2021, a third motion to compel by Kordick followed. Doc. No. 100. In that

motion, Kordick asserted that Harvey had not produced “any of the items” outlined in the April
2021 Order by May 31, 2021. Id. at 1. Because of that failure, Kordick requested that I issue an
order alerting Harvey that failure to comply with the April 2021 Order would result in the
sanction of dismissal with prejudice. Id. Several days passed, and Harvey did not file a response
or objection to Kordick’s motion. On June 8, 2021, I issued an order (“June 2021 Order”)
clarifying that Harvey was not required to produce all the items outlined in the April 2021 Order
by May 31, 2021. Order, Doc. No. 102. Accordingly, I only granted Kordick’s motion with
respect to the production that was due by May 31, 2021 and ordered that Harvey make such
production by June 29, 2021. Id. Importantly, I warned that if Harvey did not comply with that
order, I would “dismiss this case with prejudice.” Id. The July 1, 2021 deadline for production of
the remaining discovery items remained intact, and I reset the overall discovery deadline to
August 2, 2021. Order, Doc. No. 104.
v.

Fifth Extension and Deposition Issue
In July 2021, I ordered the parties to file status reports regarding Harvey’s compliance

with the April 2021 and June 2021 Orders. See Order, Doc. No. 105. Both parties filed status
reports. See Def.’s Status Reports, Doc. Nos. 106 and 107 (sealed); Pl.’s Status Report, Doc. No.
110. The reports indicated that Harvey was not in full compliance with my prior discovery
orders. Furthermore, the reports raised a new dispute regarding whether Harvey’s deposition
should occur remotely or in person. Around the same time, Kordick filed two motions to dismiss

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on the basis that Harvey had, to date, failed to comply with my discovery orders, doc. nos. 108,
113, and a motion to modify the scheduling order, doc. no. 115.
After reviewing the report and the motions, I issued an order on August 23, 2021
(“August 2021 Order”). Order, Doc. No. 117. Of significance here, that order required Harvey to
produce the several recordings, transcripts, and photographs outlined in the April 2021 Order by
October 22, 2021. Id. at 9. On the deposition issue, I ordered that the parties report back to me
after they had met and conferred, but that regardless of the manner of the deposition, it must
occur before November 8, 2021. Id. at 10. I also ordered that “[d]iscovery will close in this
matter on November 8, 2021,” and I stated that I could not “conceive of any good reason that
would warrant extending that deadline.” Id. at 11. And finally, I denied Kordick’s motions to
dismiss because I chose to “exercise my discretion not to sanction Harvey.” Id. at 10 n.4, 12 n.5.
But I made clear that “both parties are on notice that I will very likely impose sanctions upon any
party who does not comply with my discovery orders moving forward.” Id. at 12 n.5.
vi.

Sixth Extension
In September 2021, Kordick and Harvey filed several notices regarding the status of their

discussions about the manner of Harvey’s deposition. Def.’s Report, Doc. No. 118; Pl.’s Status
Report, Doc. No. 119. In response, I held a status conference with the parties. See Min. Entry,
Doc. No. 122. During that lengthy conference, Harvey reiterated that he is uncomfortable with
the idea of traveling during the pandemic, whether that be for the purposes of a deposition or
retrieving the documents held in storage. After affording Harvey an opportunity to be heard, I,
again, extended the discovery timeline. This time, I ordered that Harvey must produce all
outstanding discovery by March 15, 2022. See Conf. Memo. and Order, Doc. No. 123; Supp.
Conf. Memo. and Order, Doc. No. 124. Further, I ordered that all discovery, including

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depositions, must be completed by April 15, 2022. See Conf. Memo. and Order, Doc. No. 123.
Regarding the manner of the deposition, I held that it must proceed in-person in Connecticut. Id.
vii.

Continued Requests for Extension and Present Motions to Dismiss
On December 31, 2021, Harvey filed a motion to reset the discovery deadlines due to the

COVID-19 Omicron surge. Doc. No. 125. I denied that motion. Order, Doc. No. 128. Critical to
my reasoning was that continuing to “grant[] such requests will delay this case even further,
resulting in prejudice to [Kordick].” Id. The order went on to say that:
Harvey must produce all outstanding discovery, including the records in storage,
by March 15, 2022. The deadline for the completion of discovery is April 15, 2022.
Defendant’s deposition of Harvey shall go forward in-person in Connecticut at
Defendant’s law office. If Harvey fails to adhere to any of these deadlines or
orders, I will dismiss this case with prejudice.
Id. (emphasis in original). On March 16, 2022, after the March 15, 2022 deadline, Harvey filed
what I construe to be a motion for an extension of time. Doc. No. 129. On that same day,
Kordick filed a motion to dismiss based on Harvey’s failure to produce all outstanding
discovery. Doc. No. 130. Several days later, Kordick filed a second motion to dismiss because
Harvey failed to appear for his properly noticed deposition. Doc. No. 134. Harvey objected to
both motions, doc. nos. 138, 142, to which Kordick filed a reply, doc. no. 142. On May 11, 2022,
I held a telephonic hearing on the motions. See Min. Entry, Doc. No. 146. I declined to issue a
ruling at that time and expressed that I would take Korick’s motions under advisement, but
would likely not issue a written decision until at least June 1, 2022. In doing so, I alerted Harvey
that if he had complied with my discovery orders before June 1, 2022, the motions to dismiss
would likely be moot. Nonetheless, June 1, 2022 came and went with no filing by Harvey.
Kordick, however, filed a status report indicating that Harvey had still not produced all
outstanding discovery. See Status Report, Doc. No. 151, at 2.

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II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 41(b) provides 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.” A central purpose of the rule is to prevent “undue delays” and “congestion in
the calendars of the District Courts.” Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962).
Thus, a court need not even wait for a motion to dismiss because district courts are “necessarily
vested” with the control required “to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Id. That inherent authority includes the ability to dismiss an
action with prejudice where a plaintiff fails to prosecute his case. Id. at 630–31.
Pursuant to the law of this Circuit, five factors must be weighed by this Court in
considering a Rule 41(b) dismissal: “(1) the duration of the plaintiff’s failure to comply with the
court order, (2) whether [the] plaintiff was on notice that failure to comply would result in
dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the
proceedings, (4) a balancing of the court’s interest in managing its docket with the plaintiff’s
interest in receiving a fair chance to be heard, and (5) whether the judge has adequately
considered a sanction less drastic than dismissal.” Baptiste v. Sommers, 768 F.3d 212, 216 (2d
Cir. 2014) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)) (cleaned up). “No single
factor is generally dispositive.” Id. (citing Nita v. Conn. Dep’t of Envtl. Prot., 16 F.3d 482, 485
(2d Cir. 1994)).
While dismissals under Rule 41(b) are reviewed for abuse of discretion, the Second
Circuit has stressed that such a dismissal is the “harshest of sanctions” and must “‘be proceeded
by particular prerequisites,’ including ‘notice of the sanctionable conduct, the standard by which
it will be assessed, and an opportunity to be heard.’” Id. at 217 (quoting Mitchell v. Lyons Prof’l

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Servs., Inc., 708 F.3d 463, 467 (2d Cir. 2013)). Indeed, “even where the court issues a notice of
possible dismissal and a plaintiff does not comply with the court’s directive, the court must still
make a finding of ‘willfulness, bad faith, or reasonably serious fault’ by evaluating those
criteria.” Id. (quoting Mitchell, 708 F.3d at 467). Moreover, the Second Circuit has instructed
that dismissal “should be used in only extreme situations.” Id. (quoting Mitchell, 708 F.3d at
467) (cleaned up).
III.

DISCUSSION
In the case at the bar, I find that dismissal of this action under Rule 41(b) to be

appropriate and—indeed—necessary, considering the factors articulated in Baptiste.
A. Duration of Delay
The first factor requires a court to analyze the duration of delay. Generally, courts
consider (1) whether the delays were attributable to the plaintiff and (2) the duration of the delay.
See U.S. ex. rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 255 (2d Cir. 2014) (citing Martens
v. Thomann, 273 F.3d 159, 180 (2d Cir. 2001)).
In this case, the length of delay is over two years. Discovery was initially set to be
completed in May 2020. It is now August 2022. Yet still, Kordick is without the documents and
audio recordings that he requested in December 2019. Based on the record, Harvey has not
demonstrated that he has taken diligent steps to obtain this necessary discovery. The delay is
excusable, Harvey contends, because of the COVID-19 pandemic. I disagree.
Admittedly, Harvey is not entirely at fault for the two-year delay; the COVID-19
pandemic has undoubtedly imposed challenges. Still, he bears responsibility for at least half, if
not more, of the delay. Over the last two years, there have been periods where, with the
necessary precautions, it would have been safe for Harvey to fly, or even drive, to California to

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retrieve the requested items. See Jones v. Cuomo, 542 F. Supp. 3d 207, 215 (S.D.N.Y. 2021) (“In
recent months … much of the United States [] has made progress towards the resumption of
‘normal’ life, largely because of improved vaccine availability and the overall decline in
COVID-19 cases and hospitalizations.”). But Harvey chose not to travel. Moreover, Harvey has
not provided any explanation about why he could not solicit a friend, a relative, or hire someone
based in California to retrieve and mail the items to him. Adding to the problem is the fact that
Harvey has not been diligent in seeking to meet discovery deadlines. In fact, Harvey’s practice is
to let the discovery deadline pass and leave Kordick to file motions to modify the discovery
schedule. In the end, the pandemic cannot and does not rid Harvey of his obligation to prosecute
his case.
The Second Circuit has recognized that delays of as little as six months are “significant”
for the purposes of this analysis, and that a “17-month delay” is certainly significant. Drake, 375
F.3d at 255; see also Headley v. Fisher, 559 F. App’x. 83, 84 (2d Cir. 2014) (holding that when
plaintiff’s “failure to prosecute resulted in a nearly year-and-a-half delay from the originally
scheduled trial date,” this weighed in favor of dismissal) (summary order). Thus, Harvey’s delay
of at least one year is beyond sufficient to demonstrate that this factor supports dismissal.
B. Notice
The second factor asks whether the party was given notice that further delays would
result in dismissal. The Second Circuit has made clear that the “sanction of dismissal with
prejudice may be imposed even against a plaintiff who is proceeding pro se, so long as a warning
has been given that noncompliance can result in dismissal.” Valentine v. Museum of Modern Art,
29 F.3d 47, 50 (2d Cir. 1994) (per curiam) (collecting cases).

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There can be no question that Harvey received ample notice that continued
noncompliance would result in dismissal. The June 2021 Order stated I would “dismiss the case
with prejudice” if Harvey did not comply with my order. Order, Doc. No. 102. That warning
was reiterated again in my August 2021 Order. Order, Doc. No. 117. And it was reiterated a third
time when I denied Harvey’s January 2022 request to reset the discovery deadlines. There, I
unambiguously stated: “If Harvey fails to adhere to any of these deadlines or orders, I will
dismiss this case with prejudice.” Order, Doc. No. 128 (emphasis in original). Those three
warnings are more than enough notice in the Second Circuit and weigh in favor of dismissal. See,
e.g., Chavis v. City of New York, 2018 WL 6532865, at *1 (S.D.N.Y. Oct. 12, 2018), report and
recommendation adopted, 2018 WL 6528238 (S.D.N.Y. Dec. 11, 2018), 2018 WL 6532865, at
*4 (finding two warnings from the court sufficient to warrant dismissal).
C. Prejudice to Defendants
The third factor asks whether the defendant would be prejudiced by further delays. Put
simply, the prejudice to Kordick cannot be overstated. From the outset, Kordick has been
prejudiced by the age of the case and the fact that the underlying events allegedly occurred
nearly 26 years ago. And, that prejudice continues to compound as this case remains pending.
See Gaeta v. Inc. Vill. of Garden City, 644 F. App’x. 47, 48 (2d Cir. 2016) (holding that, where a
party sought to reopen a case twelve years after the underlying events in the complaint took
place, the defendants were “surely” prejudiced).
Additionally, Kordick has been unable to defend the case without the outstanding
discovery. Rather than move to the next stage of litigation, Kordick has had to wait, file
numerous motions to compel, and attend numerous status conferences—all of which cost money.
See Southridge Partners II, LP v. SND Auto Grp., Inc., 2020 WL 5074296, at *2 (D. Conn. Aug.

13

27, 2020) (finding that “the Defendants have faced prejudice by incurring costs and attorneys’
fees to defend a case that [the plaintiff] is not prosecuting”).
Continuing to grant Harvey’s extensions will leave Kordick in limbo. It is unclear when
the pandemic will subside enough, if ever, for Harvey to feel comfortable to travel. Moreover,
Harvey continues to find new reasons to delay this case, including the Ukraine-Russia war (doc.
no. 129), a hurricane in Florida (doc. no. 152), and most recently, the potential eviction he may
be facing (doc. no. 160). Certainly, I am sympathetic to Harvey’s health concerns and financial
circumstances. And for a while, I found those concerns to be a sufficient basis to continue
extending the discovery timeline. But a case cannot be effectively stayed because a litigant
requires perfect conditions to prosecute his case—especially at the expense of another party.
D. Balance Between Calendar Congestion and the Opportunity to be Heard
Under the fourth factor, “a court considers the balance between district court calendar
congestion and the plaintiff’s right to an opportunity to be heard.” Drake, 375 F.3d at 257.
Harvey contends that he wants to prosecute his case. His actions say otherwise. Throughout the
life of this case, I have given Harvey numerous opportunities to move the action forward. Six
extensions have been granted. Yet, Harvey has missed deadlines and has forced the case to
remain stagnant. Moreover, Harvey’s conduct has required me to issue multiple orders and hold
multiple hearings. It would not be an efficient use of the Court’s resources to allow this case to
stay on the docket for any longer than it already has. Accordingly, the fourth factor favors
dismissal.
E. Consideration of Lesser Sanctions
Lastly, I must consider whether “lesser sanctions would [be] sufficient to remedy any
prejudice resulting from plaintiff’s delay.” Drake, 375 F.3d at 257 (cleaned up). “[D]istrict

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courts are not required to exhaust possible lesser sanctions before imposing dismissal or default
if such a sanction is appropriate on the overall record.” New England Tel. Co. v. Global NAPs
Inc., 624 F.3d 123, 148 (2d Cir. 2010)).
As the record reflects, there is no indication that Harvey will ever respond to Kordick’s
requests in a satisfactory fashion. Thus, a lesser sanction would likely have zero effect and would
unnecessarily prolong this litigation. In these circumstances, I find that the only reasonable
remedy is the sanction of dismissal.
IV.

CONCLUSION
In sum, Harvey has willfully allowed this case to stagnate. The cycles of delay, excuses,

and extensions must end. Accordingly, Kordick’s motion to dismiss, doc. no. 130, is granted,
and this case is dismissed with prejudice. Kordick’s second motion to dismiss, doc. no. 134, is
denied as moot. The Clerk is directed to enter judgment in accordance with the terms of this
order and close this case.
So ordered.
Dated at Bridgeport, Connecticut, this 17th day of August 2022.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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