Delaremore v. Zimmer Inc. et al

Filing 82

MEMORANDUM DECISION AND ORDER, The motion to dismiss 80 and counsel's motion to withdraw 79 are granted. As his last act as counsel, plaintiff's counsel is directed to send an image of this Order by text to plaintiff's cellphone, and file an affidavit stating that he has done so. So Ordered by Judge Brian M. Cogan on 6/29/2021. (fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------BRYANT A. DELAREMORE,
Plaintiff,
- against ZIMMER INC. d/b/a ZIMMER BIOMET;
ZIMMER U.S. INC.; and ZIMMER BIOMET
HOLDINGS, INC. f/k/a ZIMMER HOLDINGS,
INC.,
Defendants.
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MEMORANDUM
DECISION AND ORDER
17-cv-918 (BMC) (RML)

COGAN, District Judge.
This is a diversity products liability action, originally brought by a prisoner appearing pro
se who alleged that his hip replacement device, manufactured by defendants, failed because it
was defective. He then obtained counsel and, with leave of court, filed an amended complaint.
However, plaintiff has disappeared from the case. His able counsel has been unable to locate
him, and plaintiff has not provided the Court or his counsel with any other contact information
that would allow plaintiff to continue with this case.
Throughout the case, there were great difficulties in obtaining plaintiff’s medical records
and in scheduling plaintiff for a hip surgery that he allegedly needed. Magistrate Judge Levy had
to repeatedly extend deadlines to do so. Plaintiff’s disappearance occurred sometime between
March and May of this year, after his release from custody. His counsel reported to Judge Levy
that plaintiff’s hip evaluation was postponed, and that because plaintiff has no permanent

address, counsel has been unable to locate plaintiff. It has thus been impossible for defendants to
schedule an independent medical examination. Plaintiff did have a cell phone, but counsel was
unable to get a response from that either. Counsel also attempted to contact a relative of
plaintiff’s to find out where he is; that yielded no results.
With no means of contacting plaintiff, Judge Levy authorized defendants to move to
dismiss for non-prosecution, and that motion is before me. Plaintiff’s counsel, having no means
of contacting plaintiff, has moved to withdraw as counsel. Both motions are hereby granted.
In reviewing a dismissal for failure to prosecute under Rule 41, courts within the Second
Circuit consider whether: “(1) the plaintiff's failure to prosecute caused a delay of significant
duration; (2) plaintiff was given notice that further delay would result in dismissal; (3) defendant
was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion
was carefully balanced against plaintiff's right to an opportunity for a day in court; and (5) the
trial court adequately assessed the efficacy of lesser sanctions.” Brown v. City of New York,
391 F. App’x 935, 936 (2d Cir. 2010) (summary order) (quoting Ruzsa v. Rubenstein & Sendy
Atty’s at Law, 520 F.3d 176, 177 (2d Cir. 2008)). All the factors are met here. This case has
been going on for four years now; plaintiff is well aware of the action; plaintiff has been given
multiple chances to make his case; and plaintiff has not responded to Judge Levy’s order or the
motion to dismiss.
Accordingly, the motion to dismiss [80] and counsel’s motion to withdraw [79] are

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granted. As his last act as counsel, plaintiff’s counsel is directed to send an image of this Order
by text to plaintiff’s cellphone, and file an affidavit stating that he has done so.
SO ORDERED.

Digitally signed by Brian M.
Cogan
______________________________________
U.S.D.J.

Dated: Brooklyn, New York
June 29, 2021

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