203 17th Realty LLC et al v. City of New York et al

Filing 43

MEMORANDUM AND ORDER. For the reasons set forth in the attached memorandum and order, I decline to recommend the dismissal of plaintiff Gotham Broad LLC's claims for failure to prosecute and instead order the appearing parties, including Gotham Broad LLC, to confer in an effort to ensure that all discovery is completed in a timely fashion. SEE ATTACHED MEMORANDUM AND ORDER. Ordered by Magistrate Judge James Orenstein on 4/3/2012. (Rambaud, Dennis)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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203 17TH REALTY LLC, et al.,
Plaintiffs,
- against CITY OF NEW YORK, et al.,
Defendants.
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MEMORANDUM
AND ORDER
11-CV-1392 (WFK) (JO)

James Orenstein, Magistrate Judge:
On March 6, 2012, I ordered plaintiff Gotham Broad LLC ("Gotham"), along with several
other plaintiffs in this action, to show cause why I should not recommend the dismissal of its
claims for failure to prosecute. Docket Entry ("DE") 38. Gotham had been without counsel since
the withdrawal of its prior attorney due to a potential conflict of interest on January 27, 2012, and
had failed to appear at court-ordered status conferences on January 31, 2012, and March 1, 2012.
Order dated January 27, 2012; DE 28; DE 36. On March 26, 2012, Gotham, through new counsel,
filed a written response urging the court not to recommend the dismissal of its claims. DE 40. On
March 28, 2012, the defendants filed a response arguing in favor of such a dismissal. DE 41. For
the reasons set forth below, I decline to recommend the dismissal of Gotham's claims.
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, 630-31 (1962)). Consistent with that inherent
authority, the Federal Rules of Civil Procedure explicitly empower 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 …
a court order[.]" Rule 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," Lewis, 564 F.3d 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)). 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 conduct" 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).
Considering the record of this case as a whole, I find the extreme remedy of dismissal of
Gotham's claims under Rule 41(b) to be unwarranted. Now that Gotham has responded to the order
to show cause and retained new counsel, there is no reason to believe that it will continue to delay
these proceedings. Moreover, lesser measures than dismissal unquestionably suffice to protect the
defendants against any conceivable harm. Indeed, given that the parties are only one month into a
five month discovery schedule, see DE 37, the delay in Gotham's participation may cause no
prejudice at all. I therefore decline to recommend the dismissal of Gotham's claims for failure to
prosecute and instead order the appearing parties, including Gotham, to confer in an effort to
ensure that all discovery is completed in a timely fashion.

Dated: Brooklyn, New York
April 3, 2012
/s/
JAMES ORENSTEIN
U.S. Magistrate Judge
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