Golden v. Tapestry Medical Inc. et al
ORDER ADOPTING REPORT AND RECOMMENDATION: Pursuant to 28 U.S.C. § 636(b) and Rule 72, the Court has reviewed the R&R for clear error and, finding none, concurs with it in its entirety. See Covey v. Simonton, 481 F. Supp. 2d224, 226 (E.D.N .Y. 2007). Accordingly, the Court hereby orders that the complaint against the remaining defendants, Triad Pharmaceutical, Triad Group and H&P, is dismissed with prejudice for failure to prosecute the action. The Clerk of Court is directed to mail a copy of this Memorandum and Order to the non-appearing defendants and, in light of the stipulation of dismissal between Golden and the appearing defendants, enter the accompanying Judgment, and close the case. Ordered by Judge Roslynn R. Mauskopf on 9/5/2017. (Taronji, Robert)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-- against --
MEMORANDUM AND ORDER
14-CV-1834 (RRM) (JO)
TAPESTRY MEDICAL, INC. et al. ,
ROSLYNN R. MAUSKOPF, United States Di strict Judge.
Plaintiff John Golden brings this action, fil ed on March 2 1, 2014, against defendants
Tapestry Medical Inc. ("Tapestry"), A lere, Inc. (" Alere"), Alere Home Monitoring, Inc. ("Alere
Home Monitoring"), Alere San Diego, Inc. (" Alere San Diego") , Triad Pharmaceutical, Inc.
("Triad Pharmaceutical"), Triad Group, Inc. ("Triad Group") and H&P Industries, Inc. ("H&P")
asserting claims for negligence, strict liability and breach of warranty arising from the
manufacture and sale of alcohol prep pads, swabs and swab sticks. (Compl. (Doc. No. l ).) On
July 17, 2014, Magistrate Judge James Orenstein directed Golden to fil e proof of timely service
on defendants, warning that he would recommend dismissal for failure to prosecute if Golden did
not. On July 25, 2014, one day after Judge Orenstein ' s deadline passed, Golden fil ed an affidavit
attesting to timely service on all seven defendants. Tapestry, Alere, Alere Home Monitoring and
Alere San Diego subsequently entered appearances in this action, settled with Golden, and, along
with Golden, filed a stipulation of di smissal with prejudice as to the claims among them . (Doc.
Nos. 5- 9.)
The remaining defendants, Triad Pharmaceutical, Triad Group and H&P, never appeared,
and Golden has done nothing to prosecute his claims against them after filing his proof of
service. 1 On December 4, 2014, Judge Orenstein issued an order to show cause by December 11,
2014 as to why he should not recommend that Golden's claims against the non-appearing
defendants be dismissed for failure to prosecute. Golden has not responded.
On December 17, 2014, Judge Orenstein issued a Report and Recommendation ("R&R")
recommending that Go lden' s claims against the remaining defendants be dismi ssed with
prejudice for fai lure to prosecute. (R&R (Doc. No . 10).) In his R&R, Judge Orenstein noted
that, pursuant to 28 U.S .C. § 636(b)(l) and Federal Rule of Civil Procedure ("Rule" ) 72(b), any
fai lure to fi le objections to the R&R or objections designating the particular issues to be
reviewed by January 5, 20 15 would waive the right to appeal the district court's order. That
deadline has now passed, and Golden has neither filed an objection nor communicated with the
Court in any fashion regarding the non-appearing defendants.
In reviewing an R&R, a district court "may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l)(C).
Where no "specific, written objection" is made, the Court may, but is not required to, accept the
magistrate's findings absent clear error. See Fed. R. Civ. P. 72(b); Keating v. Leviton Mfg. Co.,
Inc. , No. 06-CV-6027(JFB)(ARL), 2009 U.S. Dist. LEXIS 6839, at *2- 3, 6 n. l (E.D.N.Y. Jan.
30, 2009). Finding no clear en-or, this court adopts the findings and recommendations contained
in the R&R as to dismissal of this action.
A di strict court contemplating dismissal for failure to prosecute must consider five
[l] the duration of the plaintiffs failures,  w hether plaintiff had received notice
that fu1ther delays would result in dismissal,  whether the defendant is likely to
On August 6, 20 14, the deadline for answers passed. On October 15, 201 4, Judge Orenstein issued an order
indicating that if defendants did not fil e answers, the patties did not file a stipulation extending defendants ' time to
answer, or Golden did not fil e a request for certificate of default by November 5, 20 14, that he would deem Golden
to have abandoned the case as to those defendants and issue the instant Repo11 and Recommendation.
be prejudiced by further delay,  . .. the balance between alleviating court
calendar congestion and protecting a party's right to due process and a fair chance
to be heard, and  ... the efficacy of lesser sanctions.
Shannon v. Gen. Elec. Co. , 186 F.3 d 186, 193-94 (2d C ir. 1999) (quoting Nita v. Connecticut
Dep 't of Envll. Protection, 16 F.3d 482 , 485 (2d Cir. 1994)). No one facto r is d ispositive. Id. In
Shannon , the Second Circuit affirmed a district court's dismissal as a sound exercise of
discretion where it found that, viewing the record as a whole, these factors cou ld support such a
sanction. Id. Viewing the record as a whole, dismissal is warranted in this case.
As to the first factor, as Judge Orenstein notes, Golden did not file proof of service until
prompted to do so, has subsequently taken no action to obtain default agai nst the non-appearing
defendants fo r almost three years and has provided no response to multiple orders from Judge
Orenstein concerning the prosecution of its case against the non-appearing defendants, including
hi s order to show cause. (See R&R, at 3 .) Under the circumstances, a delay of almost three
years weighs in favor of dismissal. See Aguilar v. Kirschenbaum & Phillips, P. C., No. I I-CV1085 (SJF) (WOW), 2012 U.S . Di st. LEXIS 68638, at *8-9 (E.D.N.Y. May 15, 20 12) (fi nding
that period of plaintiff inaction of between five and six months weighed in favor of dismissal).
As to the second factor, Go lden was clearly on no tice that further delay would result in
dismissal, w ith a warning that fai lure to take action by November 5, 20 14 would result in Judge
Orenstein deeming Golden to have abandoned hi s claims against the no n-appearing defendants.
Judge Orenstein provided further notice on December 4, 2014 in issuing an order to show cause.
In the intervening period between Judge Orenstein 's warning and his issuing of an order to show
cause, Golden signed the stipulation of di smissal with the appearing defendants, indicating that
Golden was otherwise engaged in this case and would have been aware of Judge Orenstein 's
orders. Finally, Judge Orenstein provided notice in the form of his R&R, which recommended
dismissal w ith prejudice, and to w hich Golden made no objection.
As to the third factor, prejudice to defendants arising from an unreasonable delay in
prosecution may be presumed. Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir.
1982). Although the need to show actual prejudice is much greater where the delay is moderate
and excusable, and although the de lay here is much shorter than the seven-year delay in Lyell
Theatre Corp., Go lden here has offered no excuse despite ample opportunity to do so. See id.
Given the lack of explanation from a plaintiff otherwise engaged in the case, this factor weighs
neutrally on the subj ect of dismissal, at best.
As to the fourth factor, Judge Orenstein 's extension of the time to serve defendants, his
October 15, 20 14 order, his order to show cause and the opportuni ty to object to his R&R
preserved Golden's due process rights and opportuni ty to be heard at each stage. Golden has
made no effort to assert those rights. Thus, the interest in all eviating court calendar congestion congestion exacerbated by Golden's non-respons iveness - outweighs any interest in preserving
the due process rights of a party that, despite multiple opportuni ties, has expressed no interest in
Finally, given the repeated warnings and opportunities provided by Judge Orenstein to
Golden, and the lack of any response to these warnings, it is unlikely that a sanction short of
dismissal would be effective. See Brow v. City ofNew York, 39 1 Fed. Appx. 935, 937 (2d Cir.
20 l 0) (upholding dismissal on finding that plaintiffs failure to comply with order warning of
possible dismissal demonstrated that lesser sanctions would be ineffective). Absent clear
language to the contrary, dismissal fo r failm e to prosecute is presumed to be on the merits, and
thus with prejudice. Fed. R. Civ. P. 41 (b) ("Unless the dismi ssal order states otherwise,
a dismissal under th is subdivision ... operates as an adjudication on the merits."); Storey v.
O 'Brien, 482 Fed. Appx. 647, 648 (2d Cir. 2012) ("[S] ince an adjudication on the merits is the
functional equivalent of an order of dismissal with prejudice, the district court's dismissal is
deemed wi th prejudice.").
Here, it is difficult to construe Golden' s actions as expressing anything less than
comp lete ambi valence as to the disposition of its claims against the non-appearing defendants.
A lthough Golden has been actively engaged in certain aspects of this case, with respect to the
non-appearing defendants, he has ignored multipl e orders and filed no objection to the instant
R&R which recommended dismissal with prejudice. The " continued pattern of inaction" present
in this case justifies dismissal with prejudice. See Liberty Mui. Ins. Co. v. Bella Transp., No . 07CY-7 16 (CBA) (JO), 2009 WL 1606489, at *6 (E.D.N. Y. June 8, 2009) (adopting Liberty Mui.
Ins. Co. v. Bella Transp., Inc., No. 07-CY-0716 (CBA) (JO), 2009 WL 1514473 (E.D.N.Y. May
29, 2009)) (d ismissing w ith prejudice based upon "continued pattern of inaction").
Pursuant to 28 U.S.C. § 636(b) and Rule 72, the Court has reviewed the R&R for clear
error and, findi ng none, concurs with it in its entirety. See Covey v. Simonton, 48 1 F. Supp. 2d
224, 226 (E.D.N.Y. 2007).
Accordingly, the Court hereby orders that the complaint against the remaining
defendants, Triad Pharmaceutical, Triad Group and H&P, is dismi ssed with prejudice for failure
to prosecute the action. The Clerk of Court is directed to mail a copy of this Memorandum and
Order to the non-appearing defendants and , in light of the stipulation of dismissal between
Golden and the appearing defendants, enter the accompanying Judgment, and close the case.
Dated: Brooklyn, New York
s/Roslynn R. Mauskopf
ROSL YNN R. MAUSKOPF
United States District Judge
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