Levine et al v. Pegasus Star Limitada et al

Filing 76

ORDER ADOPTING REPORT AND RECOMMENDATIONS: No objections file, I adopt the recommendation of Judge Pollak with its reservation. Complaint dismissed. Court will close case. SO Ordered by Judge Raymond J. Dearie on 5/25/2017. (Ramesar, Thameera)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

Aue^y7\.)
STEVEN LEVINE and CARMEN FERMAINT,

/

REPORT AND

Plaintiffs,

RF.rOMMENDA'

14 CV 7151(RJD)

-against-

S/ Raymond J. Dearie

FILED

PEGASUS STAR LIMITADA,et. al,
Defendants.

POLLAK,United States Magistrate Judge:

IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y

5

MAY 25 2017 *

Brooklyn office

On December 8,2014,Steven Levine and Carmen Fermaint(collectively,"plaintiffs"),
commenced this action against defendants Pegasus Star Limitada("Pegasus"), Centam Partners,

LLC("Centam"), UTA Capital, LLC("UTA"),Ed Sklar, David MaUuck, Michael Starkey, Brian
Albury, and Edwin Acosta Gutierrez'(collectively,"defendants"), raising claims offraud and
breach ofcontract based on defendants* conduct relating to the sale ofproperty in Costa Rica.

After plaintiff Steven Levine passed away,the Court granted a motion on December 7,2015 to

substitute plaintiff Carmen Fermaint for plaintiffLevine. On April 21,2016, plaintiff Fermaint
filed a letter stating that the parties had settled the claims against defendants UTA, Ed Sklar, and
David Matluck.

On July 28,2016, plaintifffiled a letter request asking the court to approve a "consent

judgment*' against defendant Pegasus on the grounds that the corporation was in default, and was
now defunct and without assets. Plaintiffstated that the judgment was being sought"for tax
purposes."

'The Court notes that the docket sheet spells the defendant's last name as "Gutterrez," but

the Complaint spells the name as "Guiterrez." Since both versions appear to be misspelled, the
Court has spelled the name as "Gutierrez."

On December 7,2016,the Honorable Raymond J. Dearie issued an Order denying

plaintiffs request to enterjudgment against Pegasus"without prejudice to a fonnal motion for

defaultjudgment," because plaintiff had not filed the appropriate supporting papers nor taken the
necessary steps to perfect a motion for defaultjudgment. Since that December 7th Order, it does
not appear that plaintiff has taken any further steps to file an appropriate motion for default
judgment.

Instead, on March 16,2017,in response to this Court's request for a status report,

plaintiffs counsel filed a letter simply reiterating plaintiffs request for an entry ofjudgment
against Pegasus.^ The district judge has already denied plaintiffs earlier request to enter

judgment against Pegasus without prejudice to plaintiff filing a proper motion for default
judgment. In the absence ofa proper motion and an inquest hearing, the court simply cannot
enter an order ofjudgment against Pegasus.

On March 17,2017, this Court Ordered that by March 31,2017,if plaintifffailed to

comply with Judge Dearie's December 7,2016 Order requiring her to file a proper motion for
defaultjudgment, "accompanied by proofs ofservice, the Clerk's notation of default and
accompanying documentation in accordance with the Local Rules and Federal Rules of Civil
Procedure," then this Court would recommend that the claims against Pegasus be dismissed for
failure to prosecute and the case be closed.

As of the date ofthis Order, plaintiff still has not filed a proper motion for default
judgment against Pegasus.

^In her March 16,2017 status report, plaintiff also indicated that defendant Centam,like

Pegasus, was no longer in existence and had not answered the Complaint. Since then,plaintiff
has not pursued any action against Centam.

»

DISCUSSION

Under Rule 41 ofthe Federal Rules of Civil Procedure,courts have the power to dismiss a

case for failure to comply with court orders, treating such noncompliance as a failure to prosecute.

Simmons V. Abuzzo.49 F.3d 83,87(2d Cir. 1995). A 'dismissal for failure to prosecute may be
ordered syg sponte. See LeSane v. HalPs Sec. Analvst. Inc.. 239 F.3d 206,209(2d Cir. 2001)

(noting that "[a]lthough the text of Fed. R. Civ. P. 41(b)expressly addresses only the case in which
a defendant moves for dismissal ofan action, it is unquestioned that Rule 41(b)also gives the

district court authority to dismiss a plaintiffs case sua sponte for failure to prosecute *); see also
Minnettev. Time Warner.997 F.2d 1023,1027(2d Cir. 1993). "Courts have repeatedly found that
dismissal of an action is warranted when a litigant...fails to comply with legitimate court

directives." Robinson v. Snosato. No. 13 CV 3334,2014 WL 1699001,at *1 (E.D.N.Y. Apr. 24,

2014). In considering whether to dismiss an action, courts in this district consider five factors:
1)the duration of plaintiffs failures or non-compliance;2)whether
plaintiff had notice that such conduct would result in dismissal; 3)
whether prejudice to the defendant is likely to result;4)whether the
court balanced its interest in managing its docket against plaintiffs

interest in receiving an opportunity to be heard; and 5)whether the
court adequately considered the efficacy ofa sanction less draconian
than dismissal.

Bafifa V. Donaldson. Lufkin & Jenrette Sec. Corp.,222 F.3d 52,63(2d Cir. 2000). No one factor

is dispositive in making this determination. See Lewis v. Rawson.564 F.3d 569,576(2d Cir.
2009).

Here,the Bafifa factors weigh in favor of dismissal. Plaintifffailed to comply with Judge
Dearie's December 7,2016 directive to file a proper motion for default Judgment against Pegasus
in accordance with the Federal Rules. More than four months have passed since the date ofthat

Order and all that plaintiif has done is file a similar letter request without the required supporting
documentation.

In addition, plaintifffailed to timely submit several status reports in accordance with the

deadlines set by this Court. On February 14,2017, after plaintiff had filed the stipulations of
discontinuance as to defendants UTA, Ed Sklar, and David Matluck,this Court Ordered plaintiff

to file a status letter by March 14,2017 indicating how plaintiff planned to proceed with respect
to the remaining defendants. Plaintiff belatedly submitted a status letter on March 16,2017.
Thereafter, this Court Ordered plaintiffto file a proper motion for defaultjudgment against

Pegasus by March 31,2017. Plaintiff once again failed to meet this Court's deadline, despite the

Court's explicit warning that failure to comply might result in a recommendation that the claims

against Pegasus be dismissed and the case against Pegasus be closed. Moreover,despite settling
the claims against defendants UTA,Sklar, and Matluck in February, plaintiff has taken no further

steps to pursue the claims against the remaining individual defendants, Starkey,^ Albuiy,^ and
Gutierrez.'

Given the posture ofthis case, the prejudice to plaintiffthat would be caused by dismissal
for failure to prosecute is minimal. Plaintiff has already settled her claims against three ofthe

^In her March 16,2017 status report, plaintiff indicated that defendant Michael Starkey

would likely be discharged from the case because Mr, Starkey had filed for bankruptcy and
plaintiffs claims against Mr.Starkey had been added to the ongoing bankruptcy proceedings.
^During a telephone conference on March 25,2016,the Court was informed that
defendant Brian Albuiy had filed for bankruptcy and thereafter, stayed all proceedings against
Albury.

'Although defendant Gutierrez has also failed to respond to the Complaint, plaintiff has
not sought a defaultjudgment against him.
4

defendants in this case. In her March 16,2017 status letter, plaintiffs counsel noted that

although Pegasus is no longer in existence and is believed to be defunct, plaintiff would seek a

defaultjudgment against Pegasus "for tax purposes." (Pl.*s 3/16/17 Ltr. at 1). Therefore,the
Court finds that the potential prejudice to plaintiff that would be caused by the dismissal of her

claims against Pegasus would be minimal,given Pegasus*s defunct status. With respect to the
other individual defendants, it is unclear whether they may bejudgment proof at this time,
rendering further pursuit of plaintiffs claims fniitless.

CONCLUSION

In light ofthe foregoing,the Court respectfully recommends that plaintiffs case against

Pegasus be dismissed for failure to prosecute. It is further recommended that, unless plaintiff
submits a letter by Mav 15.2017 indicating that she intends to pursue her claims against the

remaining individual defendants, the claims against them also be dismissed and the case closed.
Any objections to this Report and Recommendation must be filed with the Clerk ofthe
Court, with a copy to the undersigned, within fourteen(14)days of receipt ofthis Report. Failure

to file objections within the specified time waives the right to appeal the District Court's Order.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a),6(e), 72; Caidor v. Onondaea Ctv.. 517 F.3d 601,
604(2d Cir. 2008).

The Clerk is directed to send copies ofthis Report & Recommendation to the parties either
electronically through the Electronic Case Filing(ECF)system or by mail.
SO ORDERED.

Dated: Brooklyn, New York
May*2017
/

/s/ Cheryl L. Pollak
f

—f

Cheryl L. Mllak

United Stpes Magistrate Judge
Eastern District of New York