Cereplast, Inc. v. Magna Group, L.L.C. et al

Filing 46

ORDER: In light of the Court's repeated requests for a status letter, and the parties repeated failures to send such a letter, and given the Court's explicit notice that dismissal would result were no such letter submitted by October 29, 2016, the Court hereby DISMISSES the above case without prejudice. The Clerk of the Court is instructed to terminate the case. SO ORDERED (Signed by Judge Alison J. Nathan on 11/02/2016) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Cereplast, Inc.,
Plaintiff,
13-cv-3120 (AJN)

-vORDER
Magna Group, L.L.C., et al.,
Defendants.

ALISON J. NATHAN, District Judge:
The above case is stayed due to Plaintiffs bankruptcy proceedings. In an order dated
April 4, 2016, the Court directed the parties to submit a status letter to the Court no later than
October 1, 2016 indicating whether the case should remain on suspense, be dismissed, or be
restored to the calendar. See Dkt. No. 43. On October 5, 2016, the Court, having received no
such letter, ordered the parties to submit an update no later than October 12, 2016. Dkt. 44. On
October 20, 2016, having received no response whatsoever from the parties, the Court again
informed the parties that it had not yet received any status letter, and ordered that such letter be
submitted no later than October 29, 2016. Dkt. 45. The Court made clear in that order that failure
to submit such letter would result in dismissal of the case. Id. As of the date of this order, the
Court has not received any status update or other communication from the parties.
Federal Rule of Civil Procedure 41 (b) "authorizes a court to dismiss an action '[f]or
failure of the plaintiff to prosecute or to comply with ... any order of court .... "' Spencer v. Doe,
139 F.3d 107, 112 (2d Cir. 1998) (citing Fed. R. Civ. P. 41(b)). "Although not explicitly
authorized by the rule, such dismissals may be made sua sponte." Id.; see also Link v. Wabash
R.R. Co., 370 U.S. 626, 630 (1962) (observing that such power allows federal courts to "clear

their calendars of cases that have remained dormant because of the inaction or dilatoriness of the
parties seeking relief."). Generally, in assessing whether dismissal is appropriate, courts in this
Circuit look to five factors:
( 1) the duration of the plaintiffs failure to comply with the court order; (2)
whether the plaintiff was on notice that failure to comply would result in
dismissal; (3) whether the defendants are likely to be prejudiced by further delay
in the proceedings; (4) a balancing of the court's interest in managing its docket
with the plaintiffs interest in receiving a fair chance to be heard; and (5) whether
the judge has adequately considered a sanction less drastic than dismissal.

Spencer, 139 F.3d at 112-13.
In light of the Court's repeated requests for a status letter, and the parties repeated
failures to send such a letter, and given the Comi's explicit notice that dismissal would result
were no such letter submitted by October 29, 2016, the Court hereby DISMISSES the above case
without prejudice. The Clerk of the Court is instructed to terminate the case.

SO ORDERED

~

, 2016
Dated: November
New York, New York