Mazzone v. Daily Press LLC et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, upon due consideration and review, Plaintiff's objections to the Report and Recommendation ("R&R") issued by the Hon. Ramon E. Reyes, U.S.M.J., on December 30, 2016 are overruled and the R&R is adopted in its entirety. Accordingly, Defendant 1151-1153 Fulton Street Corporation is dismissed from this action for failure to prosecute. Plaintiff is directed to serve a copy of this Electronic Order and the Attached Written Memorandum and Order on said defendant within five days of the date of this Order and immediately thereafter file proof of such service with the Court. SO ORDERED by Chief Judge Dora Lizette Irizarry on 09/30/2017. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
EDITH C. MAZZONE,
MEMORANDUM AND ORDER
ADOPTING REPORT AND
DAILY PRESS LLC d/b/a DAILY PRESS and
1151-1153 FULTON STREET CORPORATION, :
DORA L. IRIZARRY, Chief United States District Judge:
On June 17, 2016, Plaintiff Edith C. Mazzone (“Plaintiff”) initiated this proceeding against
Defendants Daily Press LLC d/b/a Daily Press (“Daily Press”) and 1151-1153 Fulton Street
Corporation (“Fulton Street”) (collectively, “Defendants”), alleging violations of the American
with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq. (See Complaint (“Compl.”), Dkt. Entry
For over six months, Plaintiff did nothing to prosecute the action, including failing to serve
Defendants with the Summons and Complaint. Thus, on December 22, 2016, United States
Magistrate Judge Ramon E. Reyes, Jr. directed Plaintiff to prosecute this action, warning Plaintiff
that unless: (a) the parties filed a stipulation extending the Defendants time to answer; (b) Plaintiff
filed a motion for the entry of a notation of default; or (c) the Defendant filed an answer by
December 29, 2016, the magistrate judge would deem Plaintiff to have abandoned the case and
would recommend to this Court that the case be dismissed for failure to prosecute.
On December 28, 2016, Plaintiff requested an additional twenty days to serve Defendants
properly. The magistrate judge denied the request. Later that day, Plaintiff personally served
Defendant Daily Press; Plaintiff did not serve Defendant Fulton Street.
On December 30, 2016, Magistrate Judge Reyes issued a Report and Recommendation
(“R & R”) recommending that Fulton Street be dismissed from this action for failure to serve and
prosecute. Plaintiff timely objected to the R & R. (See Plaintiff’s Objections to Court Order Date
12/30/2016 Containing Report and Recommendation of Dismissal of Action for Failure to
Prosecute (“Objections”), Dkt. Entry No. 8.)
For the reasons set forth below, Plaintiff’s objections are overruled, and the R & R is
adopted in its entirety.
STANDARD OF REVIEW
When a party objects to an R & R, a district judge must make a de novo determination as
to those portions of the R & R to which a party objects. See FED. R. CIV. P. 72(b)(3); United States
v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pursuant to the standard often articulated by the
district courts of this Circuit, “[i]f a party simply relitigates his original arguments, the Court
reviews the Report and Recommendation only for clear error.” Antrobus v. New York City Dep’t
of Sanitation, No. 11-CV-5434 (CBA) (LB), 2016 WL 5390120, at * 1 (E.D.N.Y. Sept. 26, 2016)
(internal citations and quotation marks omitted); see also Rolle v. Educ. Bus Transp., Inc., No. 13CV-1729 (SJF) (AKT), 2014 WL 4662267, at *1 (E.D.N.Y. Sept. 17, 2014) (“[A] rehashing of the
same arguments set forth in the original papers . . . would reduce the magistrate’s work to
something akin to a meaningless dress rehearsal.”) (internal citations and quotation marks
omitted). On the other hand, the Second Circuit Court of Appeals has suggested that a clear error
review may not be appropriate “where arguably ‘the only way for [a party] to raise . . . arguments
[is] to reiterate them.’” Moss v. Colvin, 845 F.3d 516, 520 n.2 (2d Cir. 2017) (quoting Watson v.
Geithner, No. 11-CV-9527 (AJN), 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27, 2013)).
Nonetheless, a court will not “ordinarily . . . consider arguments, case law and/or evidentiary
material which could have been, but [were] not, presented to the magistrate judge in the first
instance.” Santiago v. City of New York, No. 15-CV-517 (NGG) (RER), 2016 WL 5395837, at *1
(E.D.N.Y. Sept. 26, 2016) (internal citation and quotation marks omitted). After its review, the
district court may then “accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” FED. R. CIV. P. 72(b)(3);
see also 28 U.S.C. § 636(b)(1).
DISMISSAL FOR FAILURE TO PROSECUTE
“The authority of a court to dismiss sua sponte for lack of prosecution has generally been
considered an ‘inherent power,’ governed not by rule or statute but by the control necessarily
vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition
of cases.” Link v. Wabash R. Co., 370 U.S. 626, 630–31 (1962). “Under [Federal Rule of Civil
Procedure 41(b)] and the inherent power of a court to dismiss for failure to prosecute, a district
judge may, sua sponte, and without notice to the parties, dismiss a complaint for want of
prosecution, and such dismissal is largely a matter of the judge’s discretion.” Taub v. Hale, 355
F.2d 201, 202 (2d Cir. 1966). A district court considering dismissal for failure to prosecute must
weigh five factors: (1) the duration of the plaintiff’s failure to comply with the court order; (2)
whether plaintiff was on notice that failure to comply would result in dismissal; (3) whether the
defendants are likely to be prejudiced by further delay in the proceedings; (4) a balancing of the
court’s interest in managing its docket with the plaintiff’s interest in receiving a fair chance to be
heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal.
Peters v. Dep't of Corr. of N.Y. City, 306 F.R.D. 147, 149 (S.D.N.Y. 2015). No one factor is
dispositive. Nita v. Connecticut Dep't of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994).
Here, the factors largely weigh in favor of dismissing Fulton Street from the action. First,
Plaintiff failed to serve the Summons and Complaint on any Defendant or prosecute the action in
any manner for over six months.1 Second, the magistrate judge notified Plaintiff that Plaintiff was
remiss in this respect, plainly stating what needed to occur by December 29, 2016 to avoid
dismissal for failure to prosecute. Still, Plaintiff failed to serve Fulton Street. Third, Fulton Street
is prejudiced if it is unaware that an action has been pending against it since June 2016.
Furthermore, prejudice to Defendants by further delay in the proceedings may be presumed. U.S.
ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 256 (2d Cir. 2004). Fourth, permitting a case to
languish on the docket in the hope that Plaintiff will prosecute the action eventually is not an
efficient use of the Court’s resources. Davison v. Grillo, No. 05 CV 4960(NG)(LB), 2006 WL
2228999, at *2 (E.D.N.Y. Aug. 3, 2006). Plaintiff has had ample time to inform the Court that she
stood ready to press her claims in an effort to strike a balance between the Court’s docket and
Plaintiff's right to be heard. Peters v. Dep't of Corr. of N.Y. City, 306 F.R.D. 147, 149–50
(S.D.N.Y. 2015). Fifth, sanctions less extreme than dismissal are inappropriate given that Plaintiff
had been completely uncommunicative with the Court and Defendants for over six months. Id. at
Plaintiff argues that dismissal of Fulton Street is inappropriate because Federal Rule of
Civil Procedure 4(m) provides that the Court shall extend the time necessary for Plaintiff to
effectuate service of process upon Defendants, if Plaintiff shows good cause for the failure.
After the R & R and the Objections were filed, on January 17, 2017, Defendant Daily Press filed a Motion to Dismiss.
Plaintiff’s response was due by January 31, 2017. Plaintiff never responded. The motion to dismiss is addressed in a
separate summary order.
(Objections at ¶ 5.) Plaintiff asserts that it has been attempting to effectuate service of process
timely on Defendants. (Id. at ¶ 6.)
Plaintiff’s Objections are utterly without merit. There is no evidence that Plaintiff did
anything more than forward the Summons and Complaint to a process server by email on June 22,
2016. Plaintiff’s own Objections indicate that the process server attempted to effectuate service
on Defendants only once, and the Objections do not specify which defendant. Nowhere does
Plaintiff assert that there have been any efforts beyond the June 22, 2016 email to serve Fulton
The Court especially doubts Plaintiff’s diligence in attempting to serve Fulton Street
because, even if Plaintiff could not locate an address for Fulton Street, Plaintiff could have served
the New York Secretary of State, but failed to do so. Federal Rule of Civil Procedure 4(h)(1)
provides that a summons and complaint may be served on a corporation pursuant to Rule 4(e)(1),
which permits following state law service procedures. New York permits service on the New York
Secretary of State as an agent of a New York corporation. N.Y. Bus. Corp. Law § 306(b)(1)
(“Service of process on such corporation shall be complete when the secretary of state is so
served.”). According to the New York State Division of Corporation records,2 Fulton Street is an
active corporation, and, thus, the Secretary of State is its agent for purposes of service.
In her Objections, Plaintiff requests that she be granted additional time within which to
effectuate service of process on Fulton Street. Plaintiff had over six months to serve Defendants
and failed to do so. No additional time will be granted as there is no good cause to do so.
Plaintiff acknowledges consulting the New York State Division of Corporation records in an attempt to serve
Defendants, yet still failed to serve Fulton Street through the New York Secretary of State.
Upon due consideration and review, the recommendations contained in the R & R are
adopted in their entirety. Accordingly, Defendant Fulton Street is dismissed from this action with
Dated: Brooklyn, New York
September 30, 2017
DORA L. IRIZARRY
Chief United States District Judge
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