Kuar v. Mawn

Filing 82

ORDER denying 74 Motion to Dismiss for Lack of Prosecution; denying 78 Motion to Dismiss for Lack of Prosecution; denying 79 Motion to Take Deposition from Shawn M. Kuar. For the reasons set forth in the attached Memorandum and Order, IT I S HEREBY ORDERED that Mawn's motion to dismiss is denied without prejudice to renewal. Plaintiff shall file with the Court by October 31, 2012 a copy of the application that he filed with the Secretary of the Department of Homeland Security for written consent to grant the plaintiff permission to reapply for admission to the United States. In the alternative, plaintiff may retain an attorney and have that attorney file a notice of appearance in this case on plaintiff's behalf by Oct ober 31, 2012. If plaintiff takes neither of these actions by October 31, 2012, this action will be dismissed with prejudice for failure to prosecute upon letter motion by the defendant. Discovery is stayed. Plaintiff's motion to take his deposition by telephone is denied without prejudice to renew his application at a later date. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/4/2012. (O'Neil, Jacquelyn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 08-CV-4401 (JFB) (ETB)
_____________________

SHAWN M. KUAR,
Plaintiff,
VERSUS

MICHAEL P. MAWN, ET AL.,
Defendants.

___________________
MEMORANDUM AND ORDER
September 4, 2012
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Shawn M. Kuar (“plaintiff” or
“Kuar”) brought this action, pro se, against
defendants New York State Trooper
Michael P. Mawn (“Mawn” or “defendant”),
Suffolk County Assistant District Attorney
Melissa Price,1 and Mark G. Kirshner, Esq.,2
alleging various constitutional and state
common law claims stemming from a
1

Price moved to dismiss on the ground of absolute
immunity, and by Memorandum and Order dated
March 4, 2011, this Court granted Price’s motion.
2
The Court notes that defendant Kirshner has not yet
appeared in this action and, accordingly, has not
submitted any motion to dismiss. However, for the
reasons discussed infra, if plaintiff fails to file for
permission to reapply for admission to the United
States by October 31, 2012, or obtain counsel, the
Court will sua sponte dismiss the case against
Kirshner for failure to prosecute for the same reasons
such a result would be warranted for defendant
Mawn.

February 7, 2008 incident during which
Mawn allegedly shot and used pepper spray
against plaintiff. Specifically, plaintiff has
brought Fourth Amendment excessive force
and Eighth Amendment cruel and unusual
punishment claims against Mawn, along
with state common law claims for assault,
battery, and negligence.
By Memorandum and Order dated
March 4, 2011, this Court granted Mawn’s
motion to dismiss plaintiff’s Eighth
Amendment claims, but denied defendant’s
motion in all other respects. The Court also
precluded plaintiff from relying on certain
factual assertions in the amended complaint
that were clearly contradictory to statements
that were made by plaintiff during his plea
allocution and were adopted by the state
court in accepting plaintiff’s plea.

Mawn now moves to dismiss plaintiff’s
claims, pursuant to Federal Rule of Civil
Procedure 41, for failure to prosecute.
Specifically, defendant argues that, because
plaintiff has been deported and cannot
appear for trial, and because plaintiff failed
to inform the Court of his deportation for
over one year, the Court should dismiss the
complaint for failure to prosecute.

discovery (including a deposition of plaintiff
by teleconference) unless plaintiff is able to
rectify the current situation which will
otherwise result in dismissal of this case
because of his inability to return to the
United States to represent himself at any
future trial in this case.

For the reasons set forth below, the
Court denies Mawn’s motion to dismiss at
this juncture, without prejudice to renewal.
In particular, although the Court agrees with
Mawn that the case should be dismissed for
failure to prosecute if the pro se plaintiff is
unable to appear for trial because of his
deportation, the Court will permit plaintiff
an opportunity to try to obtain the written
consent of the Secretary of the Department
of Homeland Security granting plaintiff
permission to reapply for admission to the
United States, or to retain counsel in this
action so that he does not have to travel to
the United States to conduct the trial pro se.
Mawn is granted leave to submit a letter
requesting dismissal of this action after
October 31, 2012, if plaintiff does neither of
the following: (1) files a copy with this
Court of his request for the written consent
of the Secretary of the Department of
Homeland Security granting plaintiff
permission to reapply for admission to the
United States, or (2) has retained counsel
file a notice of appearance in this case.
Moreover, given the potential renewed
motion for failure to prosecute due to the
deportation, the Court, in its discretion, will
stay this action pending plaintiff’s response
to this Court’s direction.3 There is no reason
for defendant to incur the cost of additional

Plaintiff filed this action on October 27,
2008.
Defendants Mawn and Price
separately filed motions to dismiss, and by
Memorandum and Order dated March 4,
2011, this Court granted Price’s motion and
granted Mawn’s motion with respect to the
Eighth Amendment claim. Kuar v. Mawn,
No. 08-CV-4401 (JFB)(ETB), 2011 WL
838911, at *14 (E.D.N.Y. Mar. 4, 2011).

I. PROCEDURAL HISTORY4

Plaintiff was deported on November 18,
2010. (Affirmation of Anne C. Leahey (the
“Leahey Aff.”), Ex. B). By letter filed
December 7, 2010, Mawn’s counsel
informed Magistrate Judge E. Thomas Boyle
that she attempted to serve a copy of the
order scheduling a telephone conference on
April 20, 2012 at plaintiff’s address at the
time – 2350 Federal Drive, Bativa, New
York 14020 – but the Order was returned.
(Letter Regarding Plaintiff’s Address,
December 7, 2010, ECF No. 64.) On or
about December 20, 2010, plaintiff informed
the Court that his new address was 26-15
94th Street, East Elmhurst, NY 11369.
(Notice of Change of Address, December
20, 2012, ECF No. 65.)
On April 13, 2011, Magistrate Judge
Boyle cancelled the April 20, 2011
telephone conference, ordered that discovery
be completed by October 28, 2011, and
scheduled a final telephone conference for

3

As explained infra, plaintiff filed a motion to
conduct his deposition by telephone. However,
because discovery is stayed, the Court denies
plaintiff’s motion without prejudice to renew his
application if he obtains the ability to return to the
United States for purposes of conducting the trial.

4

A summary of the factual background of this action
can be found in this Court’s prior decision. Kuar v.
Mawn, No. 08-CV-4401 (JFB)(ETB), 2011 WL
838911, at *1-2 (E.D.N.Y. Mar. 4, 2011).

2

November 15, 2011. (Scheduling Order,
April 13, 2011, ECF No. 68.) By letter
dated April 4, 2011, and addressed to
Magistrate Judge Boyle, plaintiff informed
the Court that he was out of the country.
(Letter dtd. 4/4/11, April 22, 2011, ECF No.
69.) By letter dated May 19, 2011, plaintiff
advised this Court that he was out of the
country, but he could be contacted at the
address in East Elmhurst or at 28 Gardenia
Drive, Roystonia, Couva, Trinidad, W.I.
(Letter dtd. 5/19/11, May 31, 2011, ECF No.
70.) By letter dated October 19, 2011,
defendant informed Judge Boyle that, while
document discovery had been completed,
and plaintiff informed defendant that he
would be returning to New York for his
deposition, defendant had discovered that
plaintiff was deported. (Letter Motion to
Stay or Adjourn Discovery Regarding
Deportation of Plaintiff, October 19, 2011,
ECF No. 71.)

reconsideration of Magistrate Judge Boyle’s
ruling on November 22, 2012. (First Motion
to Dismiss for Lack of Prosecution,
November 18, 2011, ECF No. 74; Motion
for Reconsideration, November 22, 2011,
ECF No. 75.) On or about November 28,
2012, plaintiff provided the Court with an
updated address – 28 Gardenia Drive,
Roystoria, Couva, Trinidad W.I. (Notice of
Change of Address, November 28, 2011
ECF No. 76.) On December 2, 2011, this
Court waived the pre-motion conference on
Mawn’s motion to dismiss and set a briefing
schedule ordering that plaintiff’s opposition
was to be filed by January 16, 2012, and that
Mawn may submit a reply by January 30,
2012. (Order, December 6, 2011, ECF No.
77.)

At the telephone conference before
Magistrate Judge Boyle on November 15,
2011, Magistrate Judge Boyle directed the
plaintiff “to ascertain the feasibility of a
deposition of him at the United States
Embassy (or consulate) in Trinidad in view
of his present citizenship, residence and
status as someone who is deported and not
permitted to gain re-entry into the United
States at this time without consent of the
Attorney General of the United States.”
(Minute Entry, November 15, 2011, ECF
No. 73.)

On December 12, 2012, Magistrate
Judge Boyle granted in part and denied in
part Mawn’s motion for reconsideration.
(Order Granting in Part and Denying in Part
Motion for Reconsideration, December 12,
2011.) Magistrate Judge Boyle stayed,
without opposition, the deposition of
plaintiff, pending the outcome of the instant
motion to dismiss. (Id.) In January 2012,
plaintiff submitted opposition to the motion
to dismiss, and also made a motion to take
his deposition.
(Motion to Conduct
Deposition, January 26, 2012, ECF 79.) On
January 30, 2012, Mawn filed a reply.
(Motion to Dismiss for Lack of Prosecution
Reply Memorandum in Further Support,
January 30, 2012, ECF No. 78.)

Mawn filed the instant motion on
November 18, 20115 and a motion for

The Court has considered all of the
arguments of the parties.

5

Mawn’s motion to dismiss filed on November 18,
2011 includes a Notice of Motion, Memorandum in
Support and Certificate of Service. The Certificate of
Service indicates that the Notice of Motion,
Memorandum in Support and an Affirmation were
served on the plaintiff. However, the Affirmation
was not filed on ECF. At the Court’s request, Mawn
filed the previously served Affirmation on August 16,

2012. (Affidavit/Affirmation, August 16, 2012, ECF
No. 81.)

3

comply with a court order pursuant to Rule
41(b) must consider:

II. DISCUSSION
A. Legal Standard

1) the duration of plaintiff’s failures
or non-compliance; 2) whether
plaintiff had notice that such conduct
would result in dismissal; 3) whether
prejudice to the defendant is likely to
result; 4) whether the court balanced
its interest in managing its docket
against
plaintiff’s
interest
in
receiving an opportunity to be heard;
and 5) whether the court adequately
considered the efficacy of a sanction
less draconian than dismissal.

Rule 41(b) authorizes a district court to
“dismiss a complaint for failure to comply
with a court order, treating the
noncompliance as a failure to prosecute.”
Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir.
1995) (citing Link v. Wabash R.R. Co., 370
U.S. 626, 633, 82 S.Ct. 1386, 8 L.Ed.2d 734
(1962)); see Lucas v. Miles, 84 F.3d 532,
535 (2d Cir. 1996) (“[D]ismissal [pursuant
to Rule 41(b)] is a harsh remedy and is
appropriate only in extreme situations.”);
Wynder v. McMahon, 360 F.3d 73, 79 (2d
Cir. 2004) (“Rule [41(b)] is intended to
serve as a rarely employed, but useful, tool
of judicial administration available to
district courts in managing their specific
cases and general caseload.”); see also
Original Ballet Russe, Ltd. v. Ballet Theatre,
Inc., 133 F.2d 187, 188 (2d Cir. 1943)
(citing Blake v. De Vilbiss Co., 118 F.2d 346
(6th Cir. 1941)); Refior v. Lansing Drop
Forge Co., 124 F.2d 440, 444 (6th Cir.
1942) (“The cited rule [41(b)] enunciates a
well-settled [sic] concept of practice that a
court of equity, in the exercise of sound
judicial
discretion,
has
general
authority. . . to dismiss a cause for want of
diligence in prosecution or for failure to
comply with a reasonable order of the court
made in the exercise of a sound judicial
discretion.”).

Baffa v. Donaldson, Lufkin & Jenrette Sec.
Corp., 222 F.3d 52, 63 (2d Cir. 2000); see
also Shannon v. Gen. Elec. Co., 186 F.3d
186, 193-94 (2d Cir. 1999); Lucas, 84 F.3d
at 535; Jackson v. City of NY, 22 F.3d 71,
74-76 (2d Cir. 1994). In deciding whether
dismissal is appropriate, “[g]enerally, no one
factor is dispositive.” Nita v. Conn. Dep’t of
Env. Prot., 16 F.3d 482, 485 (2d Cir. 1994);
see Peart v. City of NY, 992 F.2d 458, 461
(2d Cir. 1993) (“‘[D]ismissal for want of
prosecution is a matter committed to the
discretion of the trial judge . . . , [and] the
judge’s undoubtedly wide latitude is
conditioned
by
certain
minimal
requirements.’” quoting Merker v. Rice, 649
F.2d 171, 173-74 (2d Cir. 1981))). When
the deportation of a party provides the basis
for an adversary’s Rule 41(b) motion, these
same five factors should be considered. See,
e.g., Reynoso v. Selsky, No. 02-CV-6318
(CJS), 2011 WL 3322414, at *3 (W.D.N.Y.
Aug. 2, 2011) (citing Kele v. Pelkey, No. 03CV-170 (LEK/GHL), 2006 WL 581144, at
*2-3 (N.D.N.Y. Mar. 8, 2006)).

Courts have repeatedly found that
“[d]ismissal of an action is warranted when
a litigant, whether represented or instead
proceeding pro se, fails to comply with
legitimate court directives. . . .” Yulle v.
Barkley, No. 9:05-CV-0802, 2007 WL
2156644, at *2 (N.D.N.Y. July 25, 2007)
(citations omitted). A district court
contemplating dismissal of a plaintiff’s
claim for failure to prosecute and/or to

In considering these factors, courts have
routinely found that “it is the plaintiff’s
responsibility to keep the Court informed of
his current address, and failure to do so may
justify dismissal for failure to prosecute.”
4

two-day adjournment); see also Jackson, 22
F.3d at 75 (“We do not mean even to imply
that one warning is per se insufficient to
constitute notice.”).

Sims v. Fernandez, No. 03 Civ. 2997
(KMW) (DF), 2004 U.S. Dist. LEXIS 6108,
at *4 (S.D.N.Y. Mar. 16, 2004) (collecting
cases); see, e.g., Parris v. Local 32B-32J,
No. 96 Civ. 3604, 1998 U.S. Dist. LEXIS
8672, at *2 n.1 (S.D.N.Y. June 12, 1998)
(“In addition, the plaintiff’s failure to notify
either the Court or the Postal Service of her
change in address indicates that the
complaint
should
be
dismissed
independently for failure to prosecute.”).
However, the failure to provide a current
address must not be considered in isolation,
but rather in the context of the other abovereferenced factors articulated by the Second
Circuit.

Defendant Mawn argues that the first
factor favors dismissal because plaintiff did
not notify the Court of his deportation until
more than a year after he was deported, and
that he only admitted to deportation after
direct questioning from Judge Boyle at the
telephone conference on November 15,
2011. Moreover, defendant notes that
“plaintiff actively led the Court and
Defendant to believe that he was available at
his East Elmhurst address.” (Def.’s Br. at 9.)
Mawn also notes that plaintiff did not meet
his obligation under Local Rule 1.3(d) to
immediately notify the Clerk of the Court of
a change of his address. (Id. at 6.) In
response, plaintiff argues that he “[h]as filed
prompt responses to all court orders, letters
from defendant was accessible for all
schedule teleconference phone calls to this
Honorable Court initiated by defendant.”
(Pl.’s Br. at ¶ 2.)

B. Application
As set forth below, although an analysis
of the five factors favors dismissal of this
case for failure to prosecute because of
plaintiff’s deportation, the Court concludes
that, before implementing that sanction,
plaintiff should be given an opportunity to
rectify the situation by obtaining permission
of the Secretary of the Department of
Homeland Security to re-enter the United
States.
If plaintiff does not attempt to
obtain such permission or is unsuccessful in
those efforts, the Court will dismiss the case
for failure to prosecute under Rule 41 of the
Federal Rules of Civil Procedure.

As a threshold matter, the Court agrees
with defendant that plaintiff deliberately
misled the Court about his permanent
deportation to Trinidad and Tobago.
Moreover, because plaintiff provided an
incorrect address in East Elmhurst, Queens
after he had been permanently deported to
Trinidad and Tobago, he was not in contact
with the Court and the defendants for a
period of approximately five months.
Specifically, the following facts in the
record are uncontroverted: (1) the United
States
Immigration
and
Customs
Enforcement (ICE) deported plaintiff from
the United States to Trinidad and Tobago on
November 18, 2010; (2) on December 20,
2010, about one month after being
permanently deported, plaintiff filed a
misleading notice with the Court stating the
was changing his address to 26-15 94th

1. Duration of Plaintiff’s Failures or NonCompliance
There is no minimum period of noncompliance necessary to warrant dismissal
under Rule 41(b). See, e.g., Peart, 992 F.2d
at 461-62 (dismissal appropriate where
attorney requested ten-day adjournment of
trial date); Maiorani v. Kawasaki Kisen
K.K., Kobe, 425 F.2d 1162, 1163 (2d Cir.
1970) (per curiam) (dismissal appropriate
where attorney failed to appear for
commencement of trial, and requested a
5

his current permanent address until
approximately one year after his deportation.
During that period, he failed to correct the
false inference that he was available at his
East Elmhurst address and failed to tell
defense counsel during their correspondence
the truth about his ability to return to the
United States for a deposition. In short, his
failure to advise the defendant and the Court
of his deportation and his current permanent
address certainly impeded the progress of
this case and supports dismissal for failure
to prosecute.

Street, East Elmhurst, New York; (3) the
letters from defendant dated March 29, April
11, and April 14, 2011, sent to plaintiff, at
the East Elmhurst address that he provided
to the Court, were returned to defendant as
“unclaimed” and “unable to forward”; (4)
plaintiff’s letter to Judge Boyle, dated April
4, 2011, merely advised the Court that
plaintiff was “out of the country,” but failed
to disclose that he had changed his address
from East Elmhurst, and failed to indicate
that plaintiff had been deported; (5)
defendant sent a letter, dated May 17, 2011,
to plaintiff at the return address in Trinidad
and Tobago (that was displayed on the
envelope of the letter received by defendant
from plaintiff on April 22, 2010), which
advised plaintiff that if he was unable to
participate in discovery, defendant would be
compelled to move to dismiss for failure to
prosecute; (6) by letter, dated May 19, 2011,
plaintiff again advised the Court that he was
“out of the country,” and advised the Court
that he could be contacted at either an
address in East Elmhurst or an address in
Trinidad, but again failed to disclose that he
had been permanently deported from the
United States; (7) by letter dated October 14,
2011, defendant wrote to plaintiff and
advised him that he would move for failure
to prosecute unless plaintiff was available
for discovery; and (8) on November 15,
2011, during a telephone conference with
Judge Boyle, plaintiff finally disclosed, in
response to a direct question from Judge
Boyle, that he had been deported.

Moreover, even apart from plaintiff’s
past failures regarding the prosecution of
this case, his current situation also favors
dismissal of the case for failure to prosecute.
In particular, even assuming arguendo that
somehow plaintiff could comply with all his
discovery obligations (including a video
deposition) from Trinidad and Tobago, his
permanent deportation prevents him from
appearing at trial and prosecuting the case as
a pro se plaintiff. The Court concludes that,
where there is no reasonable possibility that
a pro se plaintiff can appear at trial because
of deportation, the court may dismiss the
case for failure to prosecute after providing
plaintiff with a reasonable time to rectify the
order of deportation.
Other courts have reached a similar
conclusion under analogous circumstances.
For example, in Brown v. Wright, No. 05CV-82 (FJS/DRH), 2008 WL 346347
(N.D.N.Y. Feb. 6, 2008), the court
explained:

Thus, plaintiff’s claim that he was
“accessible” is incorrect. From November
18, 2010 until approximately April 22, 2011,
when he advised the Court that he was out
of the country, he was not accessible to the
defendant or the Court; in fact, plaintiff only
advised the Court that he was not at the East
Elmhurst address until three letters from
defendant had been returned as unclaimed.
Moreover, he failed to inform the Court of

It appears beyond question that
dismissal must occur upon Brown’s
nonappearance at trial even if that
nonappearance results from his
deportation. Brown, proceeding pro
se, must, of course, appear in person
at trial both to present his claims and
to testify concerning them. In his
6

appear for his trial as a pro se plaintiff, this
factor favors dismissal of the case once
plaintiff is given a reasonable opportunity to
rectify the order of deportation.

absence, the trial cannot proceed. In
these
circumstances,
it
is
unreasonable and unfair to both
defendants and the Court to refrain
from dismissal if there exists no
reasonable possibility that Brown
will appear in person for trial.

2. Notice
Mawn argues that the second factor is
met because Mawn “informed plaintiff in
writing on May 17, 2011 and on October 14,
2011, that if plaintiff was unavailable to
participate in discovery, Defendant would be
forced to move to dismiss for failure to
prosecute.” (Def.’s Br. at 10 (citing Leahey
Aff. ¶¶ 7, 11).) Defendant Mawn also
argues that since plaintiff had notified the
Court in writing of his address change on
several occasions during the litigation,
plaintiff was aware of this obligation. (Id.
(citing Reynosco, 2011 WL 3322414, at *3
(“[T]he fact that plaintiff notified the court
of his previous address change strongly
suggests he was aware of this Court’s
requirement and his obligations.”)).) This
Court agrees. Plaintiff clearly knew that he
had an obligation to update the Court in
writing of his current address. Moreover,
plaintiff was given notice of the requirement
to keep his address updated by the Clerk of
the Court. After plaintiff commenced this
action, he was mailed a letter dated
November 4, 2008, which, inter alia, stated
“it is your duty to keep this office informed
of any change of address; failure to do so
may result in your case being dismissed for
failure to prosecute pursuant to Fed. R. Civ.
P. 41(b); a change of address form is
enclosed.” (Letter dtd. 11/4/08, November
4, 2008, ECF No. 5.) Accordingly, plaintiff
clearly had notice of the requirement to keep
his address updated. Moreover, defendant
also sent two letters to plaintiff advising him
that they would move for dismissal of the
case for failure to prosecute if he was
unavailable for discovery.

Id. at *4; see also Villasenor v. City of
Fairfield, No. 11-16887, 2012 WL 2951385,
at *1 (9th Cir. July 17, 2012) (“The district
court did not abuse its discretion in
dismissing Villasenor’s action in light of the
relevant factors, including the pendency of
the action for over a year without
meaningful prosecution, the risk of prejudice
to the defendants from Villasenor’s inability
to respond to discovery or participate in the
action after being deported to Mexico, and
the court’s consideration of alternatives.”);
Chavez-Domiguez v. San Antonio Police
Dep’t, No. 02-50166, 2002 WL 31688329,
at *1 (5th Cir. Oct. 24, 2002) (per curiam)
(“Chavez has been deported to El Salvador
and, despite an order from the district court,
failed to appear of the docket call and failed
to offer any explanation of how he intends to
pursue this action from another country.
This appeal is therefore frivolous.”); Roach
v. Vincent Sobal #10986 C.O., No. 92 CIV
7355 (TPG), 81971, 1999 WL 108612, at *1
(S.D.N.Y. Mar. 2, 1999) (“Because plaintiff
has been deported from the United States
and could not, in any event, legally return to
this country to pursue his lawsuit, and
because plaintiff has further failed to
respond to the instant motion or pursue the
action or contract the Court or defendants in
any respect for a period of more than six
months, the complaint is dismissed for
failure to prosecute under Fed. R. Civ. P.
Rule 41(b).”).
In sum, because of plaintiff’s failure to
advise the Court of his deportation from the
United States and because of his ongoing
inability to re-enter the United States to
7

plaintiff attempts to address his permanent
order of deportation so that he can appear at
any trial in this case.
Thus, once a
reasonable time period is provided to allow
plaintiff to rectify the deportation situation,
this factor strongly favors dismissal of the
action because of the prejudice to Mawn of
keeping this 2008 lawsuit open indefinitely
without any prospect for resolution by trial.

Although plaintiff was certainly aware
that he needed to keep an updated address
and was advised by defendant’s counsel that
he needed to be available for discovery or
they would move for dismissal, the Court
concludes that, prior to dismissal of his case,
he should be given one additional warning
that, unless he can rectify the fact that he is
permanently deported from the United
States and can thereby prosecute any trial in
this case, the case will be dismissed for
failure to prosecute.
Thus, this
Memorandum and Order will provide
plaintiff with such notice before dismissal.

4. The Court’s Interest in Managing its
Docket Versus Plaintiff’s Interest in
Receiving an Opportunity to be Heard
“There must be compelling evidence of
an extreme effect on court congestion before
a litigant’s right to be heard is subrogated to
the convenience of the court.” Lucas, 84
F.3d at 535-36. Defendant Mawn argues
that, in light of plaintiff’s deportation, this
factor favors dismissal because while the
deposition of plaintiff may be taken by
telephone, this does not resolve the issue of
plaintiff’s attendance at trial. (Def.’s Br. at
11-12 (citing Brown v. Wright, No. 05-CV82 (FJS/DRH), 2008 WL 346347, at *4
(N.D.N.Y. Feb. 6, 2008) (order adopting
report and recommendation)).) This Court
agrees.

3. Prejudice to Defendant Mawn
For the purposes of Rule 41(b),
“Prejudice to defendants resulting from
unreasonable delay may be presumed, but in
cases where delay is more moderate or
excusable, the need to show actual prejudice
is proportionally greater.” Lyell Theatre
Corp. v. Loews Corp., 682 F.2d 37, 43 (2d
Cir. 1982) (internal citations omitted); see
Shannon, 186 F.3d at 195 (“[P]rejudice to
defendants resulting from unreasonable
delay may be presumed.”).
In this case, the Court finds that
defendant Mawn has been prejudiced by the
delay and will continue to be prejudiced by
any further delay. As discussed supra,
while document discovery was completed
by communicating with plaintiff in Trinidad,
Mawn has been unable to depose plaintiff.
According to Mawn’s October 19, 2011
letter to Magistrate Judge Boyle, plaintiff
misled Mawn into believing that he would
be returning to New York, and therefore
would be available to be deposed in person.
Accordingly, this delay has already
prejudiced defendant. Moreover, Mawn
certainly will be subjected to prejudice if
this 2008 action, which alleges serious
constitutional misconduct by Mawn,
continues to remain open indefinitely while

Here, the Court’s ability to manage its
docket has been significantly impaired by
the delays caused by plaintiff’s deportation.
Discovery was scheduled to close on
October 28, 2011. However, because of
plaintiff’s deportation, discovery has not
been completed. On the other hand, plaintiff
has had ample opportunity to present his
case and participate in discovery.
By
plaintiff being deported, and not notifying
the Court or Mawn, plaintiff has delayed this
action and avoided being deposed.
Moreover,
unless
plaintiff
obtains
permission from the Secretary of the
Department of Homeland Security to return
to the United States to participate in the trial,
this case could remain open on this Court’s
8

In this case, the Court believes the same
prudent action is warranted. However,
rather than directing that plaintiff provide
the Court with the written consent itself, the
Court will first order that plaintiff provide
the Court with proof that he has submitted
an application to the Secretary of the
Department of Homeland Security6 for
permission to re-apply for admission. If he
does so by October 31, 2012, then the Court
will require him to provide the Court with
the response to his application within 30
days of him receiving such response from
the Secretary of the Department of
Homeland Security.

docket indefinitely because no trial will be
possible. Accordingly, this factor strongly
favors dismissal.
5. The Efficacy of Lesser Sanctions
Under Rule 41(b), “dismissal is a
remedy that a district judge should generally
impose ‘only when he is sure of the
impotence of lesser sanctions.’” Dodson v.
Runyon, 86 F.3d 37, 42 (2d Cir. 1996)
(quoting Chira v. Lockheed Aircraf Corp.,
634 F.2d 664, 665 (2d Cir. 1908)). Here, a
lesser sanction than dismissal is appropriate.
In Brown v. Wright, although plaintiff
had been deported, the Northern District of
New York found that dismissal was not
warranted. 2008 WL 346347, at *1. As the
court stated:

Accordingly, plaintiff shall file with the
Court by October 31, 2012 a copy of the
application that he filed with the Secretary
of the Department of Homeland Security for
written consent to grant the plaintiff
permission to reapply for admission to the
United States. If plaintiff fails to file with
this Court, by October 31, 2012, a copy of

It appears beyond question, that
dismissal
must
occur
upon
[plaintiff’s] nonappearance at trial
even if nonappearance results from
his deportation. . . . The threshold
issue presented, therefore, is whether
there is any reasonable likelihood
that [plaintiff] will be able to appear
in person for trial of this action.

6

Although the Court in Brown makes reference to
obtaining the consent of the United States Attorney
General, this authority was transferred to the
Secretary of the Department of Homeland Security
by the Homeland Security Act of 2002. See Elgharib
v. Napolitano, 600 F.3d 597, 606-07 (6th Cir. 2010)
(“When Congress passed the Homeland Security Act
of 2002, it transferred to DHS authority over all
functions that the former Immigration and
Naturalization Services (“INS”) or its officers
previously carried out. 6 U.S.C. §§ 202, 251. This
legislation effectively replaced all statutory
references to the INS or its officers with references to
the applicable DHS official. 6 U.S.C. § 557.”);
Vasquez v. Holder, 602 F.3d 1003, 1006 n.3 (9th Cir.
2010) (“Effective March 1, 2003, the Immigration
and Naturalization Service (INS), under the direction
of the Attorney General, ceased to exist and its
functions were transferred to the Department of
Homeland Security (DHS). See Homeland Security
Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135
(Nov. 25, 2002)”); United States v. Rios-Zamora, 153
F. App’x 517, 520-21 (10th Cir. 2005) (“With the
transfer of authority under § 557, as of March 1,
2003, the title ‘Attorney General’ is synonymous
with the Secretary of Homeland Security.”).

Id. at *4. In addressing that issue, the court
concluded that, “[b]ecause the law appears
to afford [plaintiff] a means of obtaining
lawful reentry into the United States to
appear in person for a trial of this case,”
discovery should be stayed and plaintiff
should be provided with a date by which to
file a copy of the written consent of the
United States Attorney General, or his
designee, granting the plaintiff permission to
reapply for admission to the United States.
Id. at *4-5. The court then noted that, in the
event plaintiff failed to file, defendants were
granted leave to submit a letter requesting
dismissal of the action. Id. at *5.

9

III. CONCLUSION

such application that he has made to the
Secretary of the Department of Homeland
Security, this action will be dismissed with
prejudice for failure to prosecute.

For the reasons set forth above, Mawn’s
motion to dismiss is denied without
prejudice to renewal. Plaintiff shall file with
the Court by October 31, 2012 a copy of the
application that he filed with the Secretary
of the Department of Homeland Security for
written consent to grant the plaintiff
permission to reapply for admission to the
United States. In the alternative, plaintiff
may retain an attorney and have that
attorney file a notice of appearance in this
case on plaintiff’s behalf by October 31,
2012. If plaintiff takes neither of these
actions by October 31, 2012, this action will
be dismissed with prejudice for failure to
prosecute upon letter motion by the
defendant.

The Court notes that there is one other
potential avenue by which plaintiff may be
able to avoid dismissal of this case even if
he is unable to return to the United States
because of the permanent order of
deportation. In particular, if he is able to
retain counsel in this case by October 31,
2012, the Court will explore with his
attorney the feasibility of a videotaped
deposition being taken in Trinidad and
Tobago and then utilized for purposes of any
trial in this case, which could be prosecuted
by his attorney while plaintiff remained in
Trinidad and Tobago. See Fed. R. Civ. P.
30(b) (authorizing a court to order a
deposition take place by telephone or other
remote means); see also Brown v. Wright,
2008 WL 34347, at *3 (discussing
possibility
of
a
deposition
by
teleconference).

SO ORDERED.

________________________
JOSEPH F. BIANCO
United States District Judge

In addition, the Court stays this action
pending plaintiff’s application to the
Secretary of the Department of Homeland
Security. To the extent that plaintiff may
suggest that discovery (such as a videotaped
deposition) should continue in the interim,
the Court, in its discretion, believes it
unreasonable to impose such additional
costs and burdens on the defendant given the
clear possibility that this case will need to be
dismissed in the near future for failure to
prosecute unless plaintiff is able to rectify
his inability to participate in a trial in this
case because of the permanent order of
deportation currently in place against him
that prevents him from legally returning to
the United States.

Date: September 4, 2012
Central Islip, NY
***
Plaintiff Shawn M. Kuar is appearing pro se.
Defendant Michael Mawn is represented by
The Office of the Attorney General of the
State of New York, 300 Motor Parkway,
Suite 205, Hauppauge, New York 11988, by
Anne C. Leahey.

10