Belesis et al v. Kerr

Filing 6

MEMORANDUM OPINION & ORDER. Accordingly, plaintiff's complaint is DISMISSED for failure to prosecute pursuant to Fed. R. Civ. P. 41(b).The Clerk of Court is directed to terminate this action. (Signed by Judge Katherine B. Forrest on 12/1/2014) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------------)(

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:~~~~~~

DATE FILED:

DEC 0 12014

ANASTASIOS BELESIS and JOSEPH
CASTELLANO,
Petitioners,
14-cv-8306 (KBF)

-v-

EUBULUS J. KERR III,

MEMORANDUM
OPINION & ORDER
Respondent.

-------------------------------------------------------------------)(
KATHERINE B. FORREST, District Judge:
On October 16, 2014, Anastasios Belesis and Joseph Castellano
("petitioners") filed a petition to vacate an arbitration award (ECF No. 1.) On
November 3, 2014, the Court ordered petitioners to serve the Summons and Petition
on respondent Eubulus J. Kerr, III ("respondent") within 14 days, and to file proof of
service on ECF. (ECF No. 4.) The Court also directed petitioners to file proof of
service on ECF and to explain any delay in serving respondent within that
timeframe. (Id.) Further, the Court ordered petitioners to submit a memorandum
of law in support of its petition on ECF and to serve this memorandum on
respondent within 14 days.
Because petitioners failed to comply with the Court's November 3, 2014
order, on November 18, 2014 the Court issued an order stating, in bold print, that
"[i]f by November 24, 2014 petitioners have still not complied with the Court's

November 3, 2014 order, the Court will dismiss this action pursuant to Rule 41(b) of
the Federal Rules of Civil Procedure." (ECF No. 5.)
Rule 4l(b) of the Federal Rules of Civil Procedure "gives the district court
authority to dismiss a plaintiffs case sua sponte for failure to prosecute." LeSane v.
Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing Link v. Wabash

R.R. Co., 370 U.S. 626, 630 (1962)). A district court considering a Rule 41(b)
dismissal with prejudice must weigh five factors:
(1) the duration of the plaintiffs failure to comply with the
court order, (2) whether 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.
Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (quoting Lucas v. Miles, 84
F.3d 532, 535 (2d Cir. 1996)). Even where a plaintiff fails to comply with a court
order that includes a notice of possible dismissal, "the court must still make a
finding of willfulness, bad faith, or reasonably serious fault" by evaluating those
criteria. Id. at 217 (quoting Mitchell v. Lyons Profl Servs., Inc., 708 F.3d 463, 467
(2d Cir. 2013)).
Here, each of these factors weights in favor of dismissal of plaintiffs
complaint: (1) petitioners have failed to comply with the Court's order for over three
weeks; (2) petitioners were notified in a clear, explicit, bold-font statement that
their failure to comply with the Court's order would result in dismissal;
2

(3) respondent has not appeared in this action and so will not be prejudiced by any
further delay in the proceedings; (4) the Court is currently managing a heavy
caseload consisting of many potentially meritorious lawsuits, where as plaintiff has
not made any submissions to the Court since filing the action; and (5) the Court has
considered other sanctions less drastic than dismissal and concluded that dismissal
is the most appropriate sanction in the circumstance of this case. The Court also
concludes that plaintiffs failure to comply with the Opinion & Order is willful and
demonstrates reasonably serious fault.
Accordingly, plaintiffs complaint is DISMISSED for failure to prosecute
pursuant to Fed. R. Civ. P. 4l(b).
The Clerk of Court is directed to terminate this action.
SO ORDERED.
Dated:

New York, New York
December_/_, 2014
=
KA THERINE B. FORREST
United States District Judge

3