Minzer v. Shawarma Avenue Brooklyn, Inc. et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons stated in the attached Memorandum and Order, this action is dismissed pursuant to Fed. R. Civ. P. 41(b). The Clerk of Court is respectfully directed to enter judgment dismissing the action, serve a copy of the Memorandum and Order and the Judgment on pro se plaintiff, note service on the docket, and close the case. Ordered by Judge Kiyo A. Matsumoto on 1/12/2018. (Renzler, Katie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
- against –
SHAWARMA AVENUE BROOKLYN, INC. d/b/a MY
GRILL BAR; and TIMAR I, LLC,
MATSUMOTO, United States District Judge:
Plaintiff Aryeh Minzer (“plaintiff”) initiated this
lawsuit on June 22, 2017, against Shawarma Avenue Brooklyn,
Inc., d/b/a My Grill Bar (“Defendant Shawarma Ave. Brooklyn”),
and Timar I, LLC (“Defendant Timar”) (collectively,
(ECF No. 1, Complaint.)
After being granted an
extension of time (ECF Order, Granting Motion for Extension of
Time to Answer, dated 8/1/2017), Defendant Shawarma Ave.
Brooklyn filed an answer to the complaint on August 1, 2017.
(ECF No. 11, Defendant Shawarma Ave. Brooklyn’s Answer, dated
On August 22, 2017, plaintiff’s attorney filed a
motion to withdraw as attorney.
as Attorney, dated 8/22/2017.)
(ECF No. 12, Motion to Withdraw
On August 25, 2017, Magistrate
Judge Levy granted plaintiff’s attorney’s motion to withdraw as
attorney and directed plaintiff to “advise the court in writing
no later than 9/29/17 whether he wishes to continue with
If he does, he shall either find an attorney or
be prepared to proceed at the next conference . . . .
to comply with this Order may result in the dismissal of this
lawsuit for failure to prosecute.”
(ECF Order, dated
Plaintiff did not advise the court by September 29,
2017 whether he intended to continue with the lawsuit.
Additionally, plaintiff did not appear for the October 10, 2017
conference referred to in the August 25, 2017 Order.
Following plaintiff’s failure to advise the court and
failure to appear, Magistrate Judge Levy issued a Report and
Recommendation on October 10, 2017.
Recommendation, dated 10/10/2017.)
(ECF Entry, Report and
The Report and
Recommendation recounted the contents of the August 25, 2017
Order and noted plaintiff’s failure to comply with that Order.
It also noted that “[m]onths have now passed during which
plaintiff has failed to communicate with his attorney or the
Court or to comply with basic court orders.
plaintiff has abandoned this case.”
It is apparent that
Magistrate Judge Levy recommended that this case be dismissed
for failure to prosecute and gave the parties until October 24,
2017 to file any objections.
The Report and
Recommendation was mailed to plaintiff on October 16, 2017.
(ECF Entry, dated 10/16/2017.)
None of the parties filed
objections to the Report and Recommendation by Magistrate Judge
Levy’s deadline of October 24, 2017.
On October 30, 2017, the court issued another order,
recounting the procedural history in this action, and warning
that if plaintiff did not file any objections to the Report and
Recommendation by November 6, 2017, the matter would be
dismissed with prejudice for failure to prosecute.
A copy of the Order was mailed to plaintiff
on October 31, 2017.
(ECF Entry, dated 10/31/2017.)
objections were filed by November 6, 2017.
On November 15,
2017, the court issued its final warning to plaintiff.
court recounted the procedural history in this action and gave
plaintiff until November 22, 2017 to file objections.
Order, dated 10/15/2017.)
The Order also advised plaintiff that
“[f]ailure to file objections within the specified time waives
[plaintiff’s] right to appeal the district court’s order.”
A copy of the Order was mailed to plaintiff on November
(ECF Entry, dated 11/16/2017.)
Plaintiff did not
file any objections by November 22, 2017.
A district court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the
magistrate judge” in a Report and Recommendation.
28 U.S.C. §
Where no objections are made, the court may adopt
the Report and Recommendation without de novo review, see Thomas
v. Arn, 474 U.S. 140, 150 (1985), and need only review for clear
error on the face of the record.
See Fed. R. Civ. P. 72(b);
Baptichon v. Nev. State Bank, 304 F. Supp. 2d 451, 453 (E.D.N.Y.
2004), aff’d, 125 F. App’x 374 (2d Cir. 2005).
Federal Rule of Civil Procedure 41(b) authorizes a
district court to dismiss an action “[i]f the plaintiff fails to
prosecute or to comply with [the Federal Rules] or a court order
. . . .”
Fed. R. Civ. P. 41(b); see also Simmons v. Abruzzo, 49
F.3d 83, 87 (2d Cir. 1995) (explaining Rule 41(b) authorizes a
district court to “dismiss a complaint for failure to comply
with a court order, treating the noncompliance as failure to
prosecute.” (citing Link v. Wabasha R.R. Co., 370 U.S. 626, 633
(1962)) (additional citation omitted)).
explicitly authorized by the rule, such dismissals may be made
sua sponte” by the district court.
App’x 647, 648 (2d Cir. 2012).
Storey v. O’Brien, 482 F.
In assessing whether dismissal
is proper, the court considers whether: “(1) the duration of
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) [it]
adequately assessed the efficacy of lesser actions.”
Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2015).
no single factor is dispositive.
Baptiste v. Sommers, 768 F.3d
212, 217 (2d Cir. 2014).
Here, the factors weigh strongly in favor of
First, plaintiff has failed to take any action to
move this case forward since filing it nearly six months ago.
See Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 666-67 (2d
Cir. 1980) (noting failure to take action to move case forward
for six months warranted Rule 41(b) dismissal); Sadhoo v.
Triport International Aircraft Ground Equipment Repairs, Inc.,
No. 15-cv-2832, 2016 WL 3752959, at *2 (E.D.N.Y. June 14, 2016),
report and recommendation adopted, No. 15-cv-2832, 2016 WL
3766299 (E.D.N.Y. July 8, 2016) (finding plaintiff’s failure to
communicate with the court or counsel for over three months
militated in favor of Rule 41(b) dismissal).
was warned that failure to comply with the court’s August 25,
2017 Order to advise the court whether plaintiff intended to
proceed with the case and to appear before the court, as well as
failure to object to Magistrate Judge Levy’s Report and
Recommendation, would result in dismissal of this action for
failure to prosecute.
(See ECF Order, dated 8/25/2017; ECF
Report and Recommendation, dated 10/10/2017; ECF Order, dated
10/30/2017; ECF Order, dated 11/15/2017.)
to defendants resulting from unreasonable delay may be
Lauren S. v. Woodlick, No. 13-cv-4164, 2014 WL
5878108, at *4 (E.D.N.Y. Nov. 12, 2014) (quoting Lyell Theatre
Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982)).
plaintiff has failed to comply with court orders starting in
September 2017 when he failed to advise the court of how he
intended to proceed with his action and failed to appear at an
October 2017 status conference.
Fourth, Magistrate Judge Levy’s
August 25, 2017 warning regarding dismissal for failure to
prosecute, his Report and Recommendation, and this court’s two
extensions for time to object to the Report and Recommendation
provided plaintiff sufficient opportunity to be heard when
balanced against the court’s need to avoid calendar congestion
and ongoing efforts to seek responsive action from the
See Davis v. Town of Hemstead, 597 F. App’x 31, 31
(2d Cir. 2015) (finding multiple extensions and three
opportunities to be heard sufficient when weighed against need
to alleviate court congestion).
Fifth, the court has considered
whether less drastic sanctions are appropriate, and concludes
they are not, in light of plaintiff’s lack of communication with
See id. (“[G]iven plaintiff’s repeated disregard for
the court’s instructions, no sanction less severe than dismissal
None of the court’s notices has been returned
and there is no indication that plaintiff’s address has changed.
For the foregoing reasons, the balance of the factors
weighs heavily in favor of dismissal.
Accordingly, the court
finds no clear error in Magistrate Judge Levy’s Report and
Recommendation dated October 10, 2017, and adopts it in its
The action is dismissed with prejudice for failure to
The Clerk of the Court is respectfully directed to
enter judgment dismissing this action, serve a copy of this
order and the judgment on pro se plaintiff, note service on the
docket, and close the case.
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
Dated: January 12, 2018
Brooklyn, New York
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