Ryczak v. Deutsche Bank National Trust Company et al

Filing 19

MEMORANDUM ORDER & OPINION: that the plaintiff's cases is dismissed without prejudice for failure to prosecute. The Clerk is directed to close this case. (Signed by Judge John G. Koeltl on 4/2/2015) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
CATHERINE RYCZAK,
Plaintiff,
- against -

14 Cv. 8362 (JGK)
MEMORANDUM ORDER &
OPINION

DEUTSCHE BANK NATIONAL TRUST CO., ET
AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:

After the plaintiff failed to appear at a conference in
this case held on January 13, 2015, the Court issued an Order
that same day scheduling another conference for January 23,
2015, and warning the plaintiff that her failure to appear at
that conference could result in the dismissal of the case
without prejudice for failure to prosecute.

On January 21,

2015, defense counsel submitted a letter stating that defense
counsel had been advised that the plaintiff’s counsel had passed
away on January 8, 2015, and that defense counsel was attempting
to reach the plaintiff.

The Court subsequently adjourned the

January 23 conference until February 18, 2015.
In a letter dated February 17, 2015, the plaintiff
submitted a letter to the Court stating that she was only
recently informed of the February 18 conference, and that
another attorney was substituting in for her deceased counsel.

After the plaintiff did not appear at the February 18
conference, the Court issued an Order scheduling another
conference for March 31, 2015, and warning the plaintiff that if
she did not appear for that conference, either personally or
with new counsel, her case would be dismissed without prejudice.
On March 31, 2015, the plaintiff did not appear for the
scheduled conference at the appointed time, or at any time after
the appointed time.

At the conference, defense counsel assured

the Court that defense counsel sent the transcript of the
February 18 conference to the plaintiff’s registered address, as
directed by the Court.

The defendant also provided the Court

with copies of its correspondence with the plaintiff.
also sent copies of its Orders to the plaintiff.

The Court

The

plaintiff’s failure to participate in this case now spans
approximately two and a half months, and the Court has
repeatedly warned the plaintiff that her failure to appear at
conferences would result in the dismissal of her case without
prejudice for failure to prosecute.

Dismissal without

prejudice, rather than dismissal with prejudice, is proper
because courts considering dismissal for failure to prosecute
pursuant to Rule 41(b) must consider the efficacy of lesser
sanctions.

See Reeder v. Hogan, 515 F. App’x 44, 45 (2d Cir.

2013) (summary order) (quoting Lewis v. Rawson, 564 F.3d 569,
576 (2d Cir. 2009)).

Accordingly, the plaintiff’s cases is dismissed without
prejudice for failure to prosecute.

The Clerk is directed to

close this case.
SO ORDERED.
Dated:

New York, New York
April 2, 2015

_____________/s/_______________
John G. Koeltl
United States District Judge