Jelen v. Nassau Financial Federal Credit Union et al

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED that this action is dismissed with prejudice for failure to_ prosecute pursuant to Federal Rule of Civil Procedure 41 (b ). The Clerk of the Court shall enter judgment accordingly and close this case.. Ordered by Judge Joseph F. Bianco on 10/2/2017. (Bollbach, Jean)cm by chambers

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SEAN JELEN,
Plaintiff,

FILED.

IN CLERK'S or;FICE
U1S. DlSTRICT COURT E.o·.N.Y.

*

OCT 02 2017

*

LONG ISLAND OFF,CE
ORDER
16-CV-4198 (JFB) (AKT)

-againstNASSAU FINANCIAL FEDERAL CREDIT
UNION and EVERETT BOCCAFOLA,
Defendants.

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JOSEPH F. BIANCO, District Judge:
Before the Court is a Report and Recommendation ("R&R," ECF No. 34) dated September
11, 2017 from Magistrate

Ju~ge

Tomlinson recommending that the Court dismiss this case for

failure to prosecute pursuant to Federal Rule of Civil Procedure 41 (b ). The R&R instructed that
any objections to the R&R be submitted within fourteen (14) days of service of the R&R. (R&R
at 6.) The R&~ was served on pro se plaintiff on September 11, 2017, and the date for filing any
objections has accordingly since expired. Plaintiff has not filed any objection to the R&R, and
for the reasons set forth below, the Court adopts the thorough and well-reasoned R&R in its
entirety and dismisses this action with prejudice.
Where there are no objections, the Court may adopt the report and recommendation without
de novo review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear.that Congress

intended to require district court review of a magistrate's factual or legal conclusions, under a de
novo or any other standard, when neither party objects to those findings."); see also Mario v. P &

C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the
consequences, failure timely to object to a magistrate's report and recommendation operates as a
waiver of further judicial review of the magistrate's decision."); cf 28 U.S.C. § 636(b)(l)(c) and

Fed. R. Civ. P. 72(b)(3) (requiring de novo review after objections). However, because the failure
to file timely objections is not jurisdictional, a district judge may still excuse the failure to object
in a timely manner and exercise its
prevent plain error.

discretio~

to decide the case on the merits to, for example,

See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) ("[B]ecause the waiver

rule is non jurisdictional, we 'may excuse the default in the interests ofjustice."' (quoting Thomas,
474 U.S. at 155)).
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 (1962)); see Lucas v.

Miles, 84 F.3d 532, 535 (2d Cir. 1996) ("[D]ismissal [pursuant to Rule 41(b)] is

aharsh 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.").
Moreover, it is well-settled that a district court "may act sua sponte to dismiss a suit for failure to
prosecute." Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (citing Link, 370 U.S. at 630); see

also Le Sane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) ("Although the text of
Fed. R. Civ. P. 41(b) expressly addresses only the case in which a defendant moves for dismissal
of an action, it is unquestioned that Rule 41 (b) also gives the district court authority to dismiss a
plaintiffs case sua sponte for failure to prosecute.").
Courts have repeatedly found that "[d]ismissal of an action is warranted when a litigant,
whether represented or instead proceeding prose, fails to comply with legitimate court directives."

Yu/le 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 plaintiffs claim for failure to prosecute

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and/or to comply with a court order pursuant to Rule 4l{b) must consider:
1) the duration of plaintifrs 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 plaintifr 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.

Baffa v. Donaldson, Luf/dn & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000). In deciding
whether dismissal is appropriate, "[g]enerally, no one factor is dispositive." Nita v. Conn. Dep 't _

ofEnv. Prof., 16 F.3d482, 485 (2d Cir. 1994); see Peart v. City ofNew York, 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 Cii. 1981)).
Although plaintiff has waived any objection to the R&R and thus de novo review is not
required, the Court has conducted a de novo review of the R&R in ·an abundance of caution.
Having conducted a review of the full record and the applicable law, and having reviewed the
R&R de novo, the Court adopts the. findings and recommendations contained in the well-reasoned
and thorough R&R in their entirety. Accordingly, IT IS HEREBY ORDERED that this action is
dismissed with prejudice for failure to_ prosecute pursuant to Federal Rule of Civil Procedure 41 (b ).
The Clerk of the Court shall enter judgment accordingly and close this case.

SO @IHIBRED.
·::.-.--.:---=-~:--~~~-oc-~-

Jo s h F. Bianco
Un d States District Judge
Dated:

October~ 2017
Central Islip, New York

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