Pondexter v. Jack's Cartage, Inc. et al

Filing 10

MEMORANDUM AND OPINION re 7 : Since Magistrate Judge Tiscione's issuance of the R&R, Defendants have answered the Complaint, (see D.E. # 9 ); the case has been consolidated with a related action, (see D.E. dated May 11, 2017); and litigation of the claims is ongoing. In light of its preference for having cases decided on the merits, the Court declines to adopt Magistrate Judge Tiscione's recommendation that the case be dismissed. All of the parties are advised, however, that further dilatory conduct will not be tolerated. Ordered by Judge Carol Bagley Amon on 8/18/2017. (Fernandez, Erica)

OFBGB

UNITED STATES DISTRICT COURT

U,t. biStScf COUST E.D.N.Y.

EASTERN DISTRICT OF NEW YORK

^ AUG 1 8 2017 ^
X

ROBERT PONDEXTER,

BROOKLYN OFFICE

Plaintiff,

-against-

NOT FOR PUBLICATION

JACK'S CARTAGE,INC. and DT
TRUCKING,

MEMORANDUM & ORDER
No. I6-CV-4803(CBA)
(RML)

Defendants.
-X

AMON,United States District Judge:

On August 26,2016, Plaintiff Robert Pondexter filed the instant action against Defendants

Jack's Cartage, Inc. and DT Trucking, asserting tort claims under New York law. (D.E.#1.) After

Defendants failed to respond to the Complaint by their September 23, 2016, deadline, the
Honorable Steven L. Tiscione, United States Magistrate Judge, who then presided over pre-trial
proceedings, ordered Plaintiff to file a status report by October 28, 2016. (D.E. dated Oct. 25,

2016.) Plaintiff having not filed the report, Magistrate Judge Tiscione reasonably granted an order

extending the deadline to November 15, 2016, and noted that another failure to file would result
in a sua sponte Report and Recommendation ("R&R") recommending dismissal of the case for
failure to prosecute. (D.E. dated Nov. 8, 2016.)

Plaintiff again failed to abide by Magistrate Judge Tiscione's order, and the Magistrate

Judge issued the R&R on January 18, 2017. (D.E.# 7.) In the R&R, Magistrate Judge Tiscione
correctly found that Plaintiffs failure to abide by his pre-trial orders,"essential[] unreachab[ility],"
and "pattern of dilatory conduct," as well as his "ample notice" to Plaintiff of potential dismissal

and the presumption of prejudice against Defendants as established by case law,heavily counseled
for dismissal. (See id. at 3-5.)

Since Magistrate Judge Tiscione's issuance of the R&R, Defendants have answered the
Complaint,(see D.E. # 9); the case has been consolidated with a related action,(see D.E. dated
May 11, 2017); and litigation ofthe claims is ongoing. In light of its preference for having cases
decided on the merits, the Court declines to adopt Magistrate Judge Tiscione's recommendation
that the case be dismissed. All of the parties are advised, however, that further dilatory conduct
will not be tolerated.
SO ORDERED.

Dated: August 18, 2017
Brooklyn, New York

s/Carol Bagley Amon
Carol Bagley
United States District Judge