Afzal v. Flushing Hospital, New York
MEMORANDUM DECISION AND ORDER granting defendant's 29 34 Motion to Dismiss; and plaintiffs second amended complaint is dismissed pursuant to Federal Rule of Civil Procedure 41(b). ( Ordered by Judge Brian M. Cogan on 1/27/2017 ) *forwarded for jgm. (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------FIAZ AFZAL, MD,
- against FLUSHING HOSPITAL, NEW YORK,
DECISION AND ORDER
16 Civ. 1287 (BMC)(RML)
COGAN, District Judge.
Before the Court is defendant’s renewed motion to dismiss the second amended
complaint pursuant to Federal Rule of Civil Procedure 41(b), citing pro se plaintiff’s inability to
prosecute this case because of his deportation from this country for his convictions for Medicaid
fraud. The Court previously deferred ruling on defendant’s motion because, although the
relevant case law indicates that dismissal is warranted in such cases, it is inappropriate unless the
Court gives the plaintiff a reasonable opportunity to rectify his deportation order. The Court
granted plaintiff 60 days to either rectify his immigration status or to submit a letter update to the
Court regarding the disposition of any matters, either before the Department of Homeland
Security or a federal court, relating to his immigration status.
The Court further advised plaintiff that if his immigration status was not resolved or if he
failed to apprise the Court of the status of his efforts, this case may be dismissed. Plaintiff’s 60
days has expired without any update from plaintiff. After defendant renewed its motion,
however, plaintiff opposed, advising that his visa application remained pending. For the
following reasons, defendant’s motion to dismiss is granted and plaintiff’s complaint is
dismissed with prejudice.
Federal Rule of Civil Procedure 41(b) authorizes a district court to “dismiss a complaint
for failure to comply with a court order, treating the noncompliance as a failure to prosecute.”
Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995); see also Wynder v. McMahon, 360 F.3d 73,
79 (2d Cir. 2004) (“Rule [41(b) ] is intended to serve as a rarely employed, but useful, tool of
judicial administration available to district courts in managing their specific cases and general
caseload.”). Dismissal may be warranted when the plaintiff, either represented or proceeding pro
se, fails to comply with legitimate court directives. Yulle v. Barkley, No. 9:05-CV-0802, 2007
WL 2156644, at *2 (N.D.N.Y. July 25, 2007).
“[W]here there is no reasonable possibility that a pro se plaintiff can appear at trial
because of deportation, the court may dismiss the case for failure to prosecute after providing
plaintiff with a reasonable time to rectify the order of deportation.” Kuar v. Mawn, No. 08-CV4401, 2012 WL 3808620, at *6 (E.D.N.Y. Sept. 4, 2012); see also Brown v. Wright, No. 05-CV82, 2008 WL 346347, at *4 (N.D.N.Y. Feb. 6, 2008) (“Before the harsh remedy of dismissal is
imposed based on [plaintiff’s] failure to appear in person for a trial, [plaintiff] should be afforded
an opportunity to obtain lawful re-admission to the United States.”); Fox v. Tryon, No. 15-CV6196, 2016 WL 4558325, at *2 (W.D.N.Y. Sept. 1, 2016) (giving a removed plaintiff 60 days to
rectify his deportation order).
A district court considering the dismissal of a plaintiff’s claim for failure to prosecute
pursuant to Rule 41(b) must consider the following factors:
1) the duration of plaintiff’s 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 plaintiff’s interest in receiving an opportunity to be heard; and
5) whether the court adequately considered the efficacy of a sanction less
draconian than dismissal.
Bafa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000). When the
deportation of plaintiff provides the basis for the defendant’s Rule 41(b) motion, these same five
factors should be considered. See, e.g., Reynoso v. Selsky, No. 02-CV-6318, 2011 WL
3322414, at *3 (W.D.N.Y. Aug. 2, 2011). A plaintiff proceeding pro se who cannot return to the
United States to prosecute his case will inherently satisfy these four of the five factors:
plaintiff’s duration of non-compliance with a trial order will be indefinite; defendant will
certainly be prejudiced in being burdened with the costs of litigating a matter but being left to
wait indefinitely to reach the closure of a verdict; the Court’s interest in managing its docket
disfavors permitting a case to languish indefinitely; and there is no other alternative for the
With respect to the second factor, notice to plaintiff, the Court effected notice when it
deferred ruling on the motion to dismiss when defendant first raised it, instead giving plaintiff a
chance to rectify his status or update the Court. Plaintiff has not rectified his status, and all that
he offers the Court is that his visa application remains pending and was not denied. This is not
enough; defendant cannot be left in limbo indefinitely for until the immigration authorities act on
his application. In addition, it is relevant to consider the substantial likelihood that plaintiff will
not be allowed to return because, under 8 U.S.C. § 1182(a)(2)(A)(i)(I), “any alien convicted of,
or who admits having committed, or who admits committing acts which constitute the essential
elements of a crime involving moral turpitude,” which includes fraud, is “ineligible to receive
visas and ineligible to be admitted to the United States.” That is plaintiff’s present situation.
Defendant’s motions to dismiss   are granted, and plaintiff’s second amended
complaint is dismissed pursuant to Federal Rule of Civil Procedure 41(b). The Clerk is directed
to enter judgment accordingly.
Digitally signed by Brian
Dated: Brooklyn, New York
January 27, 2017
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