Trocchia v. Desy's Clam Bar Restaurant Corp. et al

Filing 8

ORDER. For the reasons set in the attached Memorandum and Order, plaintiff's complaint is dismissed with prejudice for failure to prosecute. Any appeal must be filed within thirty days after judgment is entered in this case. Fed. R. App. P. 4(a)(1)(A). The Clerk of the Court is respectfully requested to enter judgment dismissing this action and close this case. Ordered by Judge Kiyo A. Matsumoto on 4/5/2012. (Chang, Emily)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANTHONY TROCCHIA,
Plaintiff,

MEMORANDUM & ORDER

- against –

09-cv-4583 (KAM)(RML)

DESY’S CLAM BAR RESTAURANT CORP., SUNG
RO YUN, and HYUNG BOON YUN,
Defendants.
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MATSUMOTO, UNITED STATES DISTRICT JUDGE:
Plaintiff filed the instant action on October 23,
2009.

For the reasons set forth below, plaintiff’s complaint is

dismissed with prejudice for failure to prosecute.
BACKGROUND
On October 23, 2009, plaintiff Anthony Trocchia
(“plaintiff”) commenced this action against Desy’s Clam Bar
Restaurant Corp. (“Desy’s”) and Desy’s commercial landlords,
Sung Ro Yun and Hyung Boon Yun (collectively, “defendants”),
invoking jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367,
alleging that defendants failed to provide a wheelchairaccessible route to Desy’s, a restaurant at which he wishes to
dine, in violation of the Americans with Disabilities Act, 42
U.S.C. §§ 12182, 12204, et seq., New York Human Rights Law §

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296, and New York City Human Rights Code § 8-107(4)(a).

(See

generally ECF No. 1, Complaint.)
On October 26, 2009, the Honorable Robert M. Levy
ordered the parties to appear for an initial conference on
February 24, 2010, at 12:00 p.m., and ordered plaintiff’s
counsel to confirm with defendants’ counsel 1 that all necessary
participants were aware of the initial conference.
dated 10/26/2009.)

(See Order

The docket reflects that the initial

conference never took place, and that plaintiff’s last activity
occurred on December 23, 2009, when plaintiff moved for entry of
default against all defendants.

(See ECF No. 6, Motion for

Entry of Default.)

The Clerk noted the defendants’ default on

December 23, 2009.

(ECF No. 7, Clerk’s Entry of Default.)

On January 31, 2012, having observed that more than
two years had passed since plaintiff’s last activity in this
action, the court issued the following order:
ORDER TO SHOW CAUSE. The plaintiff is hereby
ordered to show cause in writing no later
than 2/7/2012 why his case should not be
dismissed for failure to prosecute in light
of the fact that plaintiff has taken no
action in this case since the Clerk's entry
of default on 12/23/2009. If the plaintiff
fails to show cause in writing by 2/7/2012,
the court is likely to dismiss this action.
Ordered by Judge Kiyo A. Matsumoto on
1/31/2012.
(Chang,
Emily)
(Entered:
01/31/2012)
1

As of the date of this Memorandum and Order, no counsel has appeared on
behalf of defendants.
2

Plaintiff did not respond to the Order to Show Cause.
STANDARD
A district court has the inherent power to manage its
own affairs “so as to achieve the orderly and expeditious
disposition of cases.”

Lewis v. Rawson, 564 F.3d 569, 575 (2d

Cir. 2009) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 63031 (1962)).

Consistent with that inherent authority, applicable

law explicitly empowers a district court, in the exercise of its
sound discretion, to dismiss an action “[i]f the plaintiff fails
to prosecute or to comply with these rules or a court order[.]”
Fed. R. Civ. P. 41(b); see Lewis, 564 F.3d at 575 (noting that
standard of review is abuse of discretion).

Because dismissal

on such grounds is unquestionably a “harsh remedy” that should
be used only in “extreme situations,” id. at 576 (citations
omitted), a court considering such an action should examine five
factors.

Specifically, the court should consider whether
(1) the plaintiff’s failure to prosecute
caused a delay of significant duration; (2)
plaintiff was given notice that further
delay
would
result
in
dismissal;
(3)
defendant was likely to be prejudiced by
further delay; (4) the need to alleviate
court
calendar
congestion
was
carefully
balanced against plaintiff’s right to an
opportunity for a day in court; and (5) the
trial court adequately assessed the efficacy
of lesser sanctions.

Id. (quoting United States ex rel. Drake v. Norden Sys., Inc.,
375 F.3d 248, 254 (2d Cir. 2004)).
3

No one factor is

dispositive.

Id.

In weighing the five factors, the court must

consider the record of the entire case as a whole.

Id.

A court

may find the standard for dismissal satisfied where it finds a
“pattern of dilatory tactics” or “an action lying dormant with
no significant activity to move it.”

Lyell Theatre Corp. v.

Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982).
All five factors weigh in favor of dismissal.

First,

plaintiff has neither advanced his claims nor filed a
stipulation of dismissal.

Instead, plaintiff failed to appear

at the initial conference before Judge Levy on February 24,
2010, as Judge Levy ordered on October 26, 2009; failed to
comply with Judge Levy’s order dated October 26, 2009 and this
court’s order to show cause for failure to prosecute dated
January 31, 2012; and has allowed plaintiff’s case to lie
dormant with no activity on plaintiff’s part since his December
23, 2009 motion for entry of default.

A lack of activity for

over two years and an ongoing failure to comply with court
orders provide a sufficient basis to justify dismissal.

See

e.g., Antonio v. Beckford, No. 05 Civ. 2225, 2006 U.S. Dist.
LEXIS 71859, at *8-9 (S.D.N.Y. Sept. 29, 2006) (citing decisions
dismissing cases for delays of three months or more).

Second,

on January 31, 2012, the court gave plaintiff notice that
failure to respond to the order to show cause could lead to
dismissal for failure to prosecute.
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(See Order dated

1/31/2012.)

Plaintiff failed to respond.

Third, applicable

case law establishes a presumption that a plaintiff’s
unreasonable delay will normally prejudice a defendant.

See,

e.g., Shannon v. Gen. Elec. Co., 186 F.3d 186, 195 (2d Cir.
1999) (citing Lyell Theatre Corp., 682 F.2d at 43).

Fourth,

this dormant case has remained on the court’s docket for over
two years with no indication that plaintiff will move it forward
in the future.

Finally, no lesser sanction than dismissal is

likely to be effective in light of plaintiff’s failure to
respond to the court’s order directing plaintiff to take action
or face dismissal of his action.

Indeed, plaintiff and his

counsel would likely have faced sanctions for failure to comply
with the Judge Levy’s October 26, 2009 scheduling order and this
court’s January 31, 2012 order to show cause, had this case
proceeded.
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CONCLUSION
For the reasons set forth above, plaintiff’s complaint
is dismissed with prejudice.

Any appeal must be filed within

thirty days after judgment is entered in this case.
App. P. 4(a)(1)(A).

Fed. R.

The Clerk of the Court is respectfully

requested to enter judgment dismissing this action and close
this case.
SO ORDERED.
Dated:

Brooklyn, New York
April 5, 2012
____________/s/________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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