Rodriguez v. The City of New York et al

Filing 34

MEMORANDUM AND ORDER: 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 in its entirety. See Covey v. Simonton, 481 F. Supp. 2d 224, 226 (E.D.N.Y. 2007). Accordingly, the Court adopts Judge Levy's unopposed R&R in its entirety, and this case is dismissed for failure to prosecute. The Clerk of Court is directed to enter judgment accordingly and close the case. Ordered by Judge Roslynn R. Mauskopf on 3/8/2017. (Taronji, Robert)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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ALE)( RODRIGUEZ,
Plaintiff,

MEMORANDUM AND ORDER
l 5-CV-793 (RRM) (RML)

- against THE CITY OF NEW YORK; DET. WALTER
MARIN; DET. KATHLEEN GRANT; DET.
EHTASHAM KHAN; SGT. ADAN MUNOZ;
DET. ANDREW PREN DERGAST; DET.
VINCENT BARASE; CAPTAIN GREGORY
STEWART; UC #52; UC #286; JOHN DOES
1- 15,
Defendants.

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ROSL YNN R. MAUSKOPF, United States District Judge.
Plaintiff Alex Rodri guez commenced this action on February 14, 20 15, asserting claims
for, inter alia, fa lse arrest/imprisonment, excessive force, and malicious prosecution. (Comp!.
(Doc. No. I ) at 7-8 ; First Am. Comp!. (Doc. No. 15) at 9- 10; Second Am. Comp!. (Doc. No. 19)
at 9- 10.) On July 13, 2016, the Magistrate Judge assigned to this matter, the Honorable Robert
M. Levy, issued a sua sponte Report and Recommendation ("R&R") recommending that the
Court dismiss this action for lack of prosecution. (R&R (Doc. No . 33) at 2.) Judge Levy
reminded the parties that any objections to the R&R must be filed within fourteen ( 14) days.
(Id.) That deadline has passed and no party has filed an objection.

Pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure ("Rule") 72, the
Court has rev iewed the R&R for clear error and, finding none, concurs with and adopts the R&R
in its entirety.
On April 18, 20 16, Judge Levy granted the motion to withdraw of Ameer Benno,
Rodri guez ' s counsel. (4/ 18/1 6 Order.) Judge Levy then scheduled a status conference fo r June

10, 20 16 and directed Rodriguez to inform the Co m1 in writing by May 19, 20 16 whether he
intended to continue the action. (Id.) Rodriguez did not appear for the June I 0, 20 16 status
conference and did no t communicate with the Court in any way. (See 611 0116 Minute Entry)
After Rodriguez fai led to appear at the June 10, 2016 status conference, Judge Levy set a
conference for Jul y 11 , 2016, noting that "[i]f plaintiff fail s to appear, the court w ill impose
sanctions, including a recommendation that this case be di smissed for failure to prosecute." (Id.)
Rod riguez again failed to appear o r otherwise communicate with the Court. (See 7111116 Minute
Entry) On July 13 , 20 16 Judge Levy issued an R&R recommending dism issal for failure to
prosecute, w hich was mailed to Rodriguez via First-Class Mail. (R&R (Doc. No. 33).)
Rod ri guez has not subsequently communicated with the Court.
Rule 41 (b) governs the di smissal of an action for failure to prosecute, providing that "[i]f
the plaintiff fai Is to prosecute or to comply with these rules or a court order, a defendant may
move to dismiss the acti on or any claim against it. " Fed. R. Civ. P. 41(b). Rule 4 l (b) also
"gives the district court authority to dismiss a plaintiff s case sua sponte for fa il ure to prosecute."

LeSane v. Hall 's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) ; see Storey v. O 'Brien, 482
Fed. App'x 64 7, 648 (2d Cir. 20 12). In considering whether dismissal is proper, courts consider
the fo llowing facto rs: ( 1) the duration of plaintiffs failure to comply w ith court orders; (2)
whether plaintiff was on notice that failure to comply would result in dismissal; (3) whether
defendant is likel y to be prej udiced by further delay in the proceedings; (4) a balancing of the
court' s interest in managing its docket with the plaintiffs interest in receiv ing a fair chance to be
heard; and (5) w hether the judge has adequately considered a sanction less drastic than dismi ssal.

See Davis v. Town of Hempstead, 597 Fed. App'x 3 1, 32 (2d Ci r. 20 15). Generally, no one factor
is di spositive. Baptiste v. Sommers, 768 F.3d 2 12, 2 16 (2d Cir. 20 14).

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Here, the requi site factors , on balance, support Judge Levy's recommendati on. 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 in its entirety. See Covey v. Simonton, 481 F. Supp. 2d 224, 226 (E.D.N.Y. 2007).

CONCLUSION
Accordingly, the Court adopts Judge Levy' s unopposed R&R in its entirety, and this case
is dismissed for failure to prosecute. The C lerk of Court is directed to enter judgment
accordingly and close the case.

SO ORDERED.

s/Roslynn R. Mauskopf
ROSL YNN R. MAUSKOPF
United States District Judge
Dated: Brooklyn, New York

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