Holley v. Fein, Such & Crane LLP et al
MEMORANDUM AND ORDER: For the reasons set forth in the attached memorandum, plaintiff's claims against defendant U.S. Bank Trust, N.A., are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Clerk of Court is respectfully directed to terminate defendant's motion to dismiss, Dkt. #7, and motions requesting that that the Court grant defendant's motion as unopposed, Dkts. #10, #11, and #12, and to close this case. Ordered by Judge Rachel P. Kovner on 1/6/2021. (Lewis, Benjamin)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ALICE FAY HOLLEY,
MEMORANDUM AND ORDER
20-CV-970 (RPK) (LB)
-againstFEIN, SUCH & CRANE LLP, REFEREE
GREGORY CERCHIONE, FRANCIS
REAL ESTATE BUYER-856 PROSPECT
PL HOLDINGS LLC, U.S. BANK TRUST,
N.A., BROOKSTONE HOLDING, LLC,
and DOES 1-10,
RACHEL P. KOVNER, United States District Judge:
More than eight months ago, U.S. Bank Trust, N.A. moved to dismiss the complaint in this
action. More than seven months ago, Alice Fay Holley missed her deadline to respond. This
action has been stalled ever since. For the reasons that follow, this action is dismissed without
prejudice for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.
Plaintiff Alice Fay Holley, proceeding pro se, brought this wrongful foreclosure action on
February 21, 2020, alleging unfair trade practices, predatory lending practices, and other violations
of consumer rights. See Compl. ¶¶ 2-3 (Dkt. #1). She named as defendants Fein, Such & Crane
LLP; Referee Gregory Cerchione; Francis Real Estate Buyer-856 Prospect Place Holdings LLC;
Brookstone Holding LLC; and U.S. Bank Trust, N.A. See id. at 1-2.
On April 13, 2020, U.S. Bank Trust, N.A. moved to dismiss the complaint. See Notice of
Mot. (Apr. 13, 2020) (Dkt. #7). It argued that the complaint must be dismissed for failure to make
proper service of process and for failure to state a claim. See Def.’s Mem. of Law 1 (Dkt. #7-1).
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On April 14, 2020, I ordered Plaintiff to submit her opposition by May 29, 2020. See Dkt.
Entry (Apr. 14, 2020). When Plaintiff missed this deadline, I ordered her to file an opposition by
July 17, 2020. See Dkt. Entry (June 22, 2020). I also warned her that I may “dismiss the case for
failure to prosecute” if no opposition was filed by that date. Ibid. After Plaintiff missed this
deadline as well, I ordered her to file an opposition by September 7, 2020. See Dkt. Entry (Aug.
17, 2020). I also warned her that “it is highly likely that defendant’s motion will be granted as
unopposed or this action will be dismissed for failure to prosecute” if no opposition was filed by
that date. Ibid. Plaintiff has not submitted any opposition to date.
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a district court to dismiss an
action “[i]f the plaintiff fails to prosecute or to comply with [the] rules or a court order.”
See Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014). Although the text of Rule 41(b) refers
to a defendant’s “mo[tion] to dismiss the action or any claims against it,” it is “unquestioned that
Rule 41(b) also gives the district court authority to dismiss a plaintiff’s case sua sponte for failure
to prosecute.” LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001). To determine
whether dismissal is appropriate, a district court must weigh:
whether plaintiff “caused a delay of significant duration”;
whether plaintiff was “given notice that further delay would result in dismissal”;
whether defendant was “likely to be prejudiced by further delay”;
whether dismissal would balance “the need to alleviate court calendar congestion . . .
against plaintiff’s right to an opportunity for a day in court”; and
(5) whether lesser sanctions would be effective.
U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). “No single factor is
generally dispositive.” Baptiste, 768 F.3d at 216.
While dismissal is a “harsh remedy to be utilized only in extreme situations,” Drake, 375
F.3d at 254, “the authority to invoke it for failure to prosecute is vital to the efficient administration
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of judicial affairs and provides meaningful access for other prospective litigants to overcrowded
courts.” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). “When imposed,
the sanction of dismissal ‘operates as an adjudication upon the merits,’ but may be without
prejudice if so specified by the court imposing it.” Id. at 43 (quoting Fed. R. Civ. P. 41(b)).
All five Rule 41(b) factors favor dismissal without prejudice here. First, plaintiff has
caused a significant delay. Plaintiff has not made any filings after commencing this action more
than ten months ago, and the only filing on her behalf is a returned summons. See Proof of Service
(Dkt. #4). Since then, defendant has moved to dismiss the complaint, and plaintiff has missed this
deadline, thereby halting this action completely for more than seven months. A more than sevenmonth delay that prevents a case from moving forward is significant enough to justify dismissal.
See Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 177 (2d Cir. 2008) (finding delay to
be significant where “proceedings ground to a halt for over seven months as a result of [plaintiff]’s
inaction”); Terry v. City of New York, No. 20-CV-81, 2020 WL 5913409, at *2 (S.D.N.Y. Oct. 6,
2020) (more than six-month delay); Morgan v. Does Nos. 1-3, No. 18-CV-2571, 2020 WL
5646133, at *2 (S.D.N.Y. Sept. 22, 2020) (more than six-month delay); Kent v. Scamardella, No.
07-CV-844, 2007 WL 3085438, at *2 (S.D.N.Y. Oct. 18, 2007) (three-month delay).
Second, plaintiff was given notice that further delay would result in dismissal. Plaintiff
has missed three court-ordered deadlines. Most recently, on August 17, 2020, I ordered plaintiff
to respond to defendant’s motion to dismiss by September 7, 2020, and expressly warned that if
plaintiff did not, “it is highly likely that defendant’s motion will be granted as unopposed or that
this action will be dismissed for failure to prosecute.” See Dkt. Entry (Aug. 17, 2020). That order
was mailed to plaintiff at the address that she gave the Court, and there is no indication that plaintiff
did not receive this communication. If for some reason plaintiff did not receive my orders,
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responsibility for that miscommunication lies with her. See, e.g., Terry, 2020 WL 5913409, at *2
(explaining that “it remained [plaintiff’s] duty to diligently pursue [this] case and to inform this
Court’s Pro Se Office of any change of address”).
Third, any further delay would prejudice defendant. That prejudice is presumed where, as
here, plaintiff has caused an “unreasonable delay.” Lesane, 239 F.3d at 210 (quoting Lyell Theatre
Corp., 682 F.2d at 43); see Terry, 2020 WL 5913409, at *2.
Fourth, dismissal without prejudice properly balances the need to alleviate court calendar
congestion against plaintiff’s right to an opportunity for a day in court. That disposition serves the
“need to clear [the] calendar without unduly penalizing a pro se litigant for failing to comply with”
a court order. Thrall v. Cent. New York Reg’l Transp. Auth., 399 F. App’x 663, 666 (2d Cir. 2010);
see Reynel v. Barnhart, No. 01-CV-6482, 2002 WL 2022429, at *1 (S.D.N.Y. Sept. 3, 2002)
(dismissing for failure to prosecute without prejudice “[g]iven the plaintiff’s pro se status”).
Finally, it appears that any sanction less than dismissal without prejudice would be
ineffective because plaintiff has utterly failed to respond to court orders over a lengthy period.
See Ruzsa, 520 F.3d at 178 (affirming dismissal where plaintiff had “fail[ed] to respond to the
notice threatening dismissal” because “it is equally unclear that a ‘lesser sanction’ would have
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Plaintiff’s claims against defendant U.S. Bank Trust, N.A., are dismissed without prejudice
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Clerk of Court is respectfully
directed to terminate defendant’s motion to dismiss, Dkt. #7, and motions requesting that that the
Court grant defendant’s motion as unopposed, Dkts. #10, #11, and #12, and to close this case.
/s/ Rachel Kovner
RACHEL P. KOVNER
United States District Judge
January 6, 2021
Brooklyn, New York
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