GUSTAVE et al v. CITY OF NEW YORK et al
MEMORANDUM AND ORDER: Plaintiffs' complaint is dismissed with prejudice. Any appeal must be filed within thirty days after judgment is entered in this case. 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. C/M. (Fwd'd for judgment) (Brucella, Michelle)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - - X
EDWINA K. GUSTAVE
and MERANDE S. GUSTAVE,
MEMORANDUM & ORDER
- against -
10-cv-3314 (KAM) (RLM)
CITY OF NEW YORK; NEW YORK CITY POLICE
DEPARTMENT; ZANLEONE, Sergeant; PAROLE
OFFICER WASHINGTON, Police Officer,
Badge Number 2770; MARCONI, Police
Officer, Badge Number 7375; LEE
BENJAMIN, Sergeant, Tax Number 932887;
CRIMINAL COURT OF THE CITY OF NEW YORK,
County of Queens; CIVILIAN COMPLAINT
REVIEW BOARD; NORTH SHORE HOSPITAL-LONG
ISLAND JEWISH HEALTH SYSTEM,
- - - - - - - - - - - - - - - - - - - - X
KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE:
Presently before the court are letter motions by
defendants City of New York and Civilian Complaint Review Board
(the "City Defendants") and defendant Criminal Court of the City
of New York, County of Queens (the "State Defendant")
requesting, inter alia, that the court dismiss this case
pursuant to Federal Rule of Civil Procedure 41(b) for failure to
prosecute and failure to comply with the court's orders.
the reasons set forth below, the complaint is dismissed with
On June 25, 2010, plaintiffs Edwina K. Gustave and
Merande S. Gustave (together, "plaintiffs") commenced the abovereferenced civil suit (the "instant Civil Action"), asserting
claims arising from Edwina Gustave's arrest on April 20, 2009
and subsequent criminal prosecution in Queens County Criminal
Court (the "Criminal Proceeding,,).l
alleged that several officers of the New York Police Department
("NYPD") entered their home without permission or cause,
arrested Edwina Gustave without cause, and assaulted both
plaintiffs during the course of the arrest.
Compl. at 3, 5, 15.)
(See ECF No. I,
Plaintiffs also alleged that Edwina
Gustave was being maliciously prosecuted and that numerous
procedural violations occurred during the Criminal Proceeding.
(See generally id. at 7-15.)
On August 26, 2010, the City Defendants moved for a
stay of the instant Civil Action on the basis that plaintiff
Edwina Gustave's criminal charges stemming from her arrest that
gave rise to the claims alleged in the instant civil Action were
pending in Queens County Criminal Court.
(See ECF No. 14,
Plaintiffs originally filed the action in the United States District Court
for the District of Columbia.
(See generally ECF No.1, Complaint filed
Pursuant to an order of that court dated June 28,
2010 finding that venue was proper in the Eastern District of New York, the
case was transferred to this court on July 20, 2010.
(ECF No.2, Order
transferring case to the U.S. District Court for the Eastern District of New
York, dated 6/28/2010; ECF No.3, Case transferred in from District of
District of Columbia, dated 7/20/2010.)
Motion to Stay by City of New York, filed 8/26/2010.)
denied the request without prejudice, directing defendants to
seek plaintiffs' consent to a stay.
(See ECF No. 16, Order
On September 17, 2010, plaintiffs moved for a stay of
the Criminal Proceeding pending the outcome of the instant Civil
(ECF No. 27, Motion to Stay the Criminal Proceeding,
The City Defendants renewed their motion to
stay the instant Civil Action on September 21, 2010.
31, Motion to Stay, filed 9/21/2010.)
After numerous letters in
response from plaintiffs, on October 6, 2010, the court granted
the City Defendants' motion to stay the instant Civil Action and
denied plaintiffs' request to stay Edwina Gustave's Criminal
(ECF No. 40, Memorandum and Order, dated
Between October 6, 2010 and August 1, 2011,
plaintiffs sent numerous applications to the court, including
motions for discovery, renewed motions to stay the Criminal
Proceeding, and requests to lift the stay of the instant civil
(See ECF Nos. 44, 46, 50, 54, 55, 56, 63, 64, 67, 68,
The court denied these requests.
(See ECF Nos. 52, 53,
69, 72; Orders dated 12/10/2010, 4/11/2011, 8/5/2011.)
on July 29, 2011, the court notified plaintiffs that additional
applications for the same relief would not be granted, and may
subject them to sanctions.
(ECF No. 72, Memorandum and Order,
On February 13, 2012, having heard nothing from the
parties since August 1, 2011, the court directed all parties to
file a status report by February 23, 2012.
(ECF No. 76, Order
On February 23, 2012, the City Defendants and
the State Defendant together filed a status letter advising the
court that, upon information and belief, on August 4, 2011,
plaintiff Edwina Gustave was convicted of at least one criminal
charge stemming from her April 20, 2009 arrest, the incident
underlying the instant Civil Action.
(See ECF No. 77, Letter,
dated 2/23/2012, Pursuant to Court's 2/13/12 Order.)
further stated that Edwina Gustave had failed to appear for
sentencing on September 27, 2011, that a warrant had been issued
for her arrest, and that the Kings County District Attorney's
Office had filed additional charges against her for bail
On February 24, 2012, Magistrate Judge Mann ordered
all counsel of record and all pro se parties to appear for a
scheduling conference on March 7, 2012, and warned that "[t]he
failure to appear at the scheduled time will be deemed a waiver
of that party's claims or defenses."
Order, dated 2/24/2012.)
(ECF No. 78, Scheduling
Although the City Defendants and the
State Defendant appeared for the conference on March 7, 2012,
neither pro se plaintiff appeared.
(ECF No. 79, Minute Entry
for Scheduling Conference, dated 3/7/2012.)
On March 19, 2012 and March 20, 2012, the State
Defendant and the City Defendants, respectively, filed letters
requesting a pre-motion conference in anticipation of
dispositive motions to dismiss based on, inter alia, plaintiffs'
failure to prosecute or to comply with the court's orders.
No. 80, Letter Motion for Pre-Motion Conference, dated
3/19/2012; ECF No. 81, Letter Motion to Dismiss, dated
In addition to seeking dismissal of the claims
against the State Defendant and City Defendants, the City
Defendants also requested that the court exercise its authority
to dismiss, sua sponte, all claims against the individual
(ECF No. 81, Letter Motion to
officers named in the Complaint.
Dismiss, dated 3/20/2012, at 1 n.1.)
On March 20, 2012, the court issued the following
Whereas pro se plaintiffs have failed to
comply with prior court orders directing the
February 23, 2012.
and to appear for a
scheduling conference on March 7, 2012
., and have been notified that failure to
comply could result in dismissal of their
action, plaintiffs are ORDERED TO SHOW CAUSE
in writing by March 30, 2012 why this case
should not be dismissed pursuant to Fed. R.
Civ. P. 41 (b) for failure to prosecute and
failure to comply with the court's orders.
In addition, all counsel of record and all
pro se parties shall appear before the court
at 10:00 a.m. on April II, 2012 for a show
cause hearing and,
if necessary, a premotion conference
Plaintiffs' failure to show cause in writing
by March 30, 2012 or plaintiffs' failure to
appear for the show cause hearing on April
II, 2012 will each provide separate cause
for the court to dismiss this case for
failure to prosecute and failure to comply
Defendant shall serve a copy of this Order
on pro se plaintiffs and file a certificate
of service on the docket by March 21, 2012.
Ordered by Judge Kiyo A.
(Order dated 3/20/2012.)
On March 20, 2012, the State Defendant
mailed a copy of the Order to the pro se plaintiffs at their
address of record and filed a certificate of service on the
(ECF No. 82, Certificate of Service, dated 3/20/2012.)
The pro se plaintiffs did not respond in writing to
the Order to Show cause by March 30, 2011.
The court has not
received any correspondence or communication from either
plaintiff since August 1, 2011.
A district court has the inherent power to manage its
own affairs "so as to achieve the orderly and expeditious
disposition of cases."
564 F.3d 569, 575 (2d
(quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630Consistent 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).
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
Specifically, the court should consider whether
the plaintiff's failure to prosecute
caused a delay of significant duration; (2)
plaintiff was given notice that further
defendant was likely to be prejudiced by
(4) the need to alleviate
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.
(quoting United States ex rel. Drake v. Norden Sys., Inc.,
375 F.3d 248, 254 (2d Cir. 2004)).
No one factor is
In weighing the five factors, the court must
consider the record of the entire case as a whole.
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 here.
First, plaintiffs have neither advanced their claims nor filed a
stipulation of dismissal.
Instead, plaintiffs have failed to
comply with court orders, and have allowed their case to lie
dormant with no activity on their part since Edwina Gustave's
August I, 2011 letter requesting that the court stay the
Criminal Proceeding, which the court denied because it lacked
authority to do so.
That length of time is sufficient to
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,
(citing decisions dismissing cases for delays of three
months or more).
Second, the court gave plaintiffs notice that
further inactivity and failures to comply with court orders
could lead to dismissal for failure to prosecute and comply with
On February 24, 2012, Magistrate Judge Mann
ordered all parties to appear for a scheduling conference on
March 7, 2012, and warned that "[t]he failure to appear at the
scheduled time will be deemed a waiver of that party's claims or
(ECF No. 78, Scheduling Order, dated 2/24/2012.)
Plaintiffs failed to appear.
(ECF No. 79, Minute Entry for
Scheduling Conference, dated 3/7/2012.)
Further, On March 20,
2012, the court specifically ordered plaintiffs to show cause by
March 30, 2012 why their complaint should not be dismissed for
failure to prosecute and comply with court orders, but they
failed to respond.
(See Order dated 3/20/2012.)
applicable case law establishes a presumption that a plaintiff's
unreasonable delay will normally prejudice a defendant.
e.g., Shannon v. Gen. Elec. Co., 186 F.3d 186, 195 (2d Cir.
(citing Lyell Theatre Corp., 682 F.2d at 43).
plaintiffs' numerous redundant motions for the same relief prior
to August 2011 and their failure to appear for the scheduling
conference on March 7, 2012 constituted a drain on the court's
Further, plaintiffs' total silence since August 2011
suggests that they have abandoned their case.
Fifth, no lesser
sanction than dismissal is likely to be effective in light of
plaintiffs' failure to respond to the court's orders directing
plaintiffs to take action or face dismissal of their case.
Indeed, plaintiffs may have faced sanctions for failure to
comply with court's February 13, February 24, and March 20, 2012
orders, had this case proceeded.
For the reasons set forth above, plaintiffs' 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).
The Clerk of the Court is respectfully
requested to enter judgment dismissing this action and close
The Clerk of the Court is also respectfully
requested to serve a copy of this Memorandum and Order, along
with a copy of the Appeals Packet, on plaintiffs and to note the
service on the docket.
Brooklyn, New York
April 5, 2012
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
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