Taylor v. Broadway Gourmet Deli & Grill Corp. et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATION: The Court adopts the 12/19/2016 R&R of Judge Gold (Doc. No. 29 ). It is hereby ordered that this case is dismissed with prejudice 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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NAQUONE TAYLOR,
Plaintiff,
- against -

ORDER ADOPTING
REPORT AND RECOMMENDATION
15-CV-4461 (RRM) (SMG)

WOODHULL DELI CORP. d/b/a BROADWAY
GOUR1v1ET DELI & CAFE and BROADWAY
GOURMET DELI & GRILL CORP. d/b/a
BROADWAY GOURMET DELI & CAFE,
Defendants.

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ROSL YNN R. MAUSKOPF, United States Di strict Judge.
PlaintiffNaquone Taylor commenced this action through counsel on July 30, 2015
against defendants Broadway Gourmet Deli & Grill Corp. (" Broadway Gourmet"), Woodhull
Deli Corp. ("Woodhu ll Deli"), and Mercer Square Owners Corp. (" Mercer Square"). (See
generally Comp!. (Doc. No. 1).) On February 1, 2016, Taylor filed an amended complaint. (See

Doc. No . 11.) On February 3, 2016, Taylor voluntari ly dismissed the action as to Mercer Square
pursuant to Federal Rule of Civi l Procedure (" Rule") 4 l (a)(l)(A) and subsequently requested a
certificate of default as to Broadway Gourmet and Woodhull Deli. (See Dismissal (Doc. No.
12); 5/3/2016 Certificate of Default (Doc. No. 14).)
Following Taylor' s request for a certificate of default, the Cl erk of Court sought
information from Tay lor's counsel with respect to service of the amended complaint. (See
12/ 19/20 16 Report and Recommendation ("R&R") (Doc. No . 29) at 1.) After Taylor fai led to
provide any information regarding service, the magi strate judge assigned to this case, the
Honorable Steven M. Gold, directed Taylor to submit a status report by June 23, 2016.
(6/ 10/2016 Status Report Order) When Taylor fai led to respond to the status report order, Judge

Go ld issued an R&R recommending that thi s case be dismissed fo r failure to prosecute.
(6/28/201 6 R& R (Doc. No 15).) On July 15, 201 6, Taylor sought additional time to serve, and
on July 19, 201 6, Judge Gold granted Taylor additional time. 1 (7/ 15/201 6 Status Report;

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2016 Scheduling O rder.) Subsequently, Taylor filed affidavits of service, but neither
Broadway Gourmet nor Woodhull Deli appeared at a November l 0, 201 6 status conference.
(S ummons (Doc. Nos. 24- 25; 11 /1 0/201 6 Minute Entry (Doc. No. 28).) Accordingly, Judge
Go ld directed Taylor to seek entry of default by November 22, 20 16. (11 /1 0/201 6 Minute
Entry.)
Since the conference on November I 0, 2016, Taylor has neither sought entry of default nor
communicated with the Court in any way. ( 12/ 19/20 16 R&R at 2.) On December 19, 201 6, Judge
Gold issued a second R&R recommending that the action be dismissed fo r failure to prosecute
and reminded the parties that, pursuant to 28 U.S .C. § 636(b), any objectio ns to the R&R had to
be fi led by January 2, 2017. (Id.) T hat deadline passed, and no party fi led an objection.
Pursuant to 28 U.S.C. § 636(b) and Rule 72 , the Court has reviewed the 12/ 19/201 6 R&R
fo r clear error and, fi nding none, concurs in its entirety. See Covey v. Simonton, 481 F. Supp. 2d
224, 226 (E.D.N.Y. 2007).
Rule 4 1(b) governs the dismi ssal of an action for fa ilure to prosecute, providing that " [i] f
the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may

1 Judge

Go ld ' s 6/28/20 16 Order conditioned that the Court would not dismiss the instant case if Taylor provided a
status report and service in fo rmation by 7/15/201 6. (See 6/28/20 16 R& R.) Taylor provided the req uested
information. (See 7/15/20 16 Status Report (Doc. No. 16).) As such, the 6/28/20 16 R&R recommending that th is case
be dismissed fo r fai lure to prosecute is moot.

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move to dismiss the action or any claim against it." Fed. R. Civ. P. 4 1(b). Rule 4l (b) also
"gives the di strict court authority to dismi ss a plaintiff's case sua sponte for failure 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 647, 648 (2d Cir. 201 2).
In considering whether dismissal is proper, com1s consider the fo ll owing factors: ( 1) the
duration of plaintiff's fa ilure to comply with court orders; (2) whether pl aintiff was on notice that
fa ilure to comply would result in dismissal; (3) whether defendant is li kely to be prejudiced by
further delay in the proceedings; (4) a balan ci ng of the court 's interest in managing its docket
w ith the plaintiff's interest in receiving a fa ir chance to be heard; and (5) whether the judge has
adequately considered a sanction less drastic than dismissal. See Davis v. Town of Hempstead,
597 Fed. App'x 3 1, 32 (2d Cir. 2015). Generall y, no one factor is dispositive. Baptiste v.

Sommers, 768 F.3d 2 12, 2 16 (2d Cir. 201 4). Here, the requi site factors, on balance, support
Judge Gold ' s recommendation.

CONCLUSION
Accordingly, the Court adopts the 12/19/201 6 R&R of Judge Go ld (Doc. No. 29). It is
hereby ordered that this case is dismissed w ith prejudice for failure to prosecute. The C lerk of
Court is directed to enter judgment accordingly and close the case.
SO ORDERED.
Dated: Brooklyn, New York
~? ,201 7

s/Roslynn R. Mauskopf
ROSL YNN R . MAUSKOPF
United States District Judge

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