Rogers v. NYPD (New York City Police Department) et al

Filing 12

ORDER denying without prejudice 11 Motion to Dismiss. Plaintiff must execute and return to counsel for defendant by February 14, 2013 the authorizations for release of sealed arrest and criminal prosecution records and medical records previously sent to plaintiff. Ordered by Magistrate Judge Marilyn D. Go on 2/1/2013. (Proujansky, Josh) (Main Document 12 replaced on 2/1/2013. Footnote added on page 1) (Abdallah, Fida)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ERVIN B. ROGERS,
Plaintiff,
ORDER
- against CV 2012-3042 (CBA)(MDG)
POLICE OFFICER JOSE VILLAFANE,
Defendant.
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Defendant moves to dismiss the complaint for failure to
prosecute pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure.1

On December 24, 2012, defendant moved to compel

plaintiff to execute and return releases for plaintiff's arrest
record and medical records so that defendant could obtain
information necessary to respond to plaintiff's complaint.
ct. doc. 10.

See

On December 26, 2012, this Court granted

defendant's request and directed plaintiff to execute and
promptly return to counsel for defendant by January 14, 2013 the
authorizations for release of sealed arrest and criminal
prosecution records and medical records which counsel for the
defendant had sent.

See electronic order dated 12/26/12.

However, there is no indication on the docket sheet that the
Court mailed plaintiff a copy of the December 26, 2012 order.

1

Since defendant moves to dismiss as a sanction for failure
to comply with my order concerning pretrial discovery, I will
address it in the first instance. However, were dismissal an
appropriate sanction, I would address the motion as a report and
recommendation. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900
F.2d 522, 525 (2d Cir. 1990).

Since plaintiff may not have received a copy of the order, it is
premature to entertain a motion to dismiss.
Accordingly, plaintiff must execute and return to counsel
for defendant by February 14, 2013 the authorizations for release
of sealed arrest and criminal prosecution records and medical
records previously sent to plaintiff.

Failure to comply with

this order may result in sanctions being imposed against
plaintiff, including dismissal of this action.
SO ORDERED.
Dated:

Brooklyn, New York
February 1, 2013
_/s/_________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

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