Flexborrow LLC et al v. TD Auto Finance LLC

Filing 24

ORDER: SO ORDERED that the above-referenced factors favor dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 4l(b) with prejudice to the federal RICO claims and without prejudice to the New Yark State law claims for lender liability and fraud. The Clerk of the Court shall enter judgment accordingly and close this case. Ordered by Judge Joseph F. Bianco on 7/18/2017. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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FLE){BORROW LLC, et al.,
Plaintiffs,
ORDER
16-CV-6359 (JFB)(ARL)

-againstTD AUTO FINANCE LLC,

1NcEe~~ ED

Defendant.

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JOSEPH F. BIANCO, District Judge:

U.S.

*

DISTR1cr'b~~~~~D.N.Y.

JUL lB 2017

*

LONG ISLAND OrFf CE

By Memorandum and Order dated June 16, 2017, the Court granted defendant's motion to
dismiss the complaint and granted plaintiffs leave to file an amended complaint within thirty days
of that decision. Plaintiffs' time to file an amended complaint has since elapsed, and plaintiffs have
neither filed an amended complaint nor otherwise communicated with the Court. Accordingly, for
the reasons that follow, this case is dismissed for failure to prosecute pursuant to Federal Rule of
Civil Procedure 41 (b) with prejudice to the federal RICO claims and without prejudice to the New
York State law claims for lender liability and fraud.
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 a harsh remedy and is
appropriate only in extreme situations."); Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004)
("Rule [4l(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, 310 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 proceedingpro 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 plaintiffs claim for failure to prosecute and/or
to comply with a court order pursuant to Rule 41 (b) must consider:
1) the duration of plaintiffs 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 plaintiffs 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, Lufkin & 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 of
Env. Prof., 16 F.3d 482, 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."')
(quotingMerkerv. Rice, 649 F.2d 171, 173-74 (2d Cir. 1981)).
Here, plaintiffs have failed to communicate with the Court since June 16, 2017 and did not
file an amended complaint by July 17, 2017. Under these circumstances, no sanction less than
dismissal will alleviate the prejudice to defendant of continuing to keep this action open. Moreover,
the Court needs to avoid calendar congestion and ensure an orderly and expeditious disposition of
cases. Therefore, all the above-referenced factors favor dismissal of the instant case.
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Accordingly, the above-referenced factors favor dismissal of this action for failure to
prosecute pursuant to Federal Rule of Civil Procedure 4l(b) with prejudice to the federal RICO
claims and without prejudice to the New Yark State law claims for lender liability and fraud. The
Clerk of the Court shall enter judgment accordingly and close this case.

EDSTATESDIBTRICTJUDGE
Dated:

July\~' 2017
Central Islip, New York

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