Ortega et al v. U.S. Department of Education et al

Filing 43

MEMORANDUM OPINION AND ORDER re: 39 MOTION to Dismiss pursuant to Fed. R. Civ. P. 41(b) and 37(b)(2)(A) filed by Blanca Torres Mutt. The defendant, Blanca Torres Mutt, has moved to dismiss the Amended Complaint for failure to prosecut e pursuant to Federal Rule of Civil Procedure 41(b) or, in the alternative, as a sanction for failure to comply with this Court's Orders pursuant to Federal Rule of Civil Procedure 37(b)(2)(A). The plaintiff, Moises Ortega, proceeding pro se, ha s failed to respond to the motion. (As further set forth in this Order.) The Amended Complaint is dismissed without prejudice for failure to prosecute. The Clerk of the Court is directed to enter judgment and to close this case. The Clerk is also directed to close all pending motions. (Signed by Judge John G. Koeltl on 3/23/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
ORTEGA,

14-cv-09703 (JGK)
Plaintiff,

MEMORANDUM OPINION AND
ORDER

- against MUTT,
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The defendant, Blanca Torres Mutt, has moved to dismiss the
Amended Complaint for failure to prosecute pursuant to Federal
Rule of Civil Procedure 41(b) or, in the alternative, as a
sanction for failure to comply with this Court’s Orders pursuant
to Federal Rule of Civil Procedure 37(b)(2)(A). The plaintiff,
Moises Ortega, proceeding pro se, has failed to respond to the
motion. It is plain that the case should be dismissed for
failure to prosecute pursuant to Federal Rule of Civil Procedure
41(b).1
Federal Rule of Civil Procedure 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). A district
court contemplating dismissal of a plaintiff’s claim for failure
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Accordingly, it is unnecessary to address the defendant’s
alternative grounds for dismissal.

to prosecute and/or to comply with a court order pursuant to
Rule 41(b) must consider:
1) the duration of [the] plaintiff’s failures or
noncompliance; 2) whether [the] plaintiff had notice
that such conduct would result in dismissal; 3)
whether prejudice to the defendant is likely to
result; 4) [the court’s] interest in managing its
docket against [the] plaintiff’s interest in receiving
an opportunity to be heard; and 5) . . . the efficacy
of a sanction less draconian than dismissal.
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52,
63 (2d Cir. 2000). “No one factor is dispositive” in determining
the proper outcome and the Court must weigh all five factors in
determining whether dismissal is appropriate under Rule 41(b).
United States ex rel. Drake v. Norden Sys., 375 F.3d 248, 254
(2d Cir. 2004); see also Avila v. Comm’r of Soc. Sec., No. 15CV-2456 (JGK), 2016 WL 1562944, at *3 (S.D.N.Y. Apr. 18, 2016).
It is unnecessary to catalogue in detail all of the ways in
which the plaintiff has failed to prosecute this action.
Briefly, the plaintiff has failed to engage in the discovery
process in any meaningful way. See, e.g., Dervin Decl. ¶¶ 4-5,
7. For example, pursuant to the Original Scheduling Order dated
September 15, 2015, the plaintiff’s initial disclosures were to
be due on October 16, 2015, with all discovery to be completed
by February 26, 2016, see Dkt. 14; more than seventeen months
later, the plaintiff’s initial disclosures, as well as his

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responses to even basic discovery requests, remain outstanding.
See, e.g., Dervin Decl. ¶¶ 25, 27.
Following a conference before this Court on April 19, 2016,
to address the plaintiff’s failure to engage in discovery, see
Dkt. 19, this Court issued a Revised Scheduling Order that
extended the close of discovery to July 15, 2016. See Dkt. 26.
The plaintiff continued to fail to comply with his discovery
obligations, see, e.g., Dervin Decl. ¶¶ 17-18, prompting the
defendant to move to compel discovery and to seek another
discovery extension. Dkt. 28.
Following another conference before this Court on July 21,
2016, this Court extended the close of discovery to October 28,
2016 to provide the plaintiff time to retain counsel, and
ordered the plaintiff to provide the defendant with initial
disclosures and other discovery materials by September 2, 2016,
and to “provide answers to interrogatories and documents
requests to the defendants” by September 16, 2016. Dkt. 33. This
Court warned that the “plaintiff is required to participate in
discovery. Failure to participate in discovery will result in
dismissal of the plaintiff’s case.” Dkt. 33 (emphasis added).
The plaintiff ignored these deadlines. See, e.g., Dervin
Decl. ¶ 22. On October 19, 2016, the defendant filed a letter
motion to dismiss the case for failure to prosecute. Dkt. 35. In
response, on October 24, 2016, this Court ordered the plaintiff

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to comply with certain discovery obligations by November 25,
2016, and extended the close of discovery to December 9, 2016.
Dkt. 36. The Court advised that, “If the parties do not comply
with their discovery obligations, the parties may move for
sanctions or any other appropriate relief, including the
dismissal of this case, or a default judgment.” Dkt. 36. The
plaintiff again ignored the Court’s directives, see, e.g.,
Dervin Decl. ¶ 27, and this motion followed. The Court advised
that the plaintiff should respond to the motion by February 13,
2017, see Dkt. 38, which the plaintiff has not done.
“This case cannot proceed without the plaintiff’s
prosecution of it and his availability and willingness to
respond to discovery requests.” Beauford v. Doe #1, No. 04 CIV.
7533 (JGK), 2007 WL 549432, at *2 (S.D.N.Y. Feb. 16, 2007).
The plaintiff’s conduct during the preceding approximately year
and a half clearly warrants dismissal for failure to prosecute,
especially in light of this Court’s repeated reminders with
respect to the plaintiff’s discovery obligations and the
warnings that failure to comply with those discovery obligations
would result in dismissal. See, e.g., Avila, 2016 WL 1562944, at
*3; Wingate v. Ctr., No. 12 CIV. 2134 (JGK), 2014 WL 3346319, at
*1 (S.D.N.Y. July 1, 2014); Waters v. Camacho, 288 F.R.D. 70, 71
(S.D.N.Y. 2013); Varney v. Batman, No. 08cv9702 (SHS), 2012 WL
1080137, at *1 (S.D.N.Y. Mar. 30, 2012).

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The Court has considered various alternatives and it is
clear that dismissal without prejudice is a reasonable, lesser
sanction, rather than dismissal with prejudice. Any prejudice to
the defendant from awaiting the plaintiff’s discovery responses
has been minor. See LeSane v. Hall’s Sec. Analyst, Inc., 239
F.3d 206, 210 (2d Cir. 2001) (“[T]here is no evidence in the
record that plaintiff’s delay . . . caused any particular, or
specially burdensome, prejudice to defendants beyond the delay
itself.”). “[U]nder the circumstances described above, the
lesser sanction of dismissal without prejudice (rather than with
prejudice) is appropriate in order to strike the appropriate
balance between the right to due process and the need to clear
the docket and avoid prejudice to defendant by retaining open
lawsuits with no activity.” Amoroso v. County of Suffolk, No. 08
Civ. 826 (JFB), 2010 WL 2985864, at *3 (E.D.N.Y. July 21, 2010).
Ultimately, “[d]ismissal 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.” Wingate, 2014 WL
3346319, at *1 (citing Reeder v. Hogan, 515 F. App’x 44 (2d Cir.
2013) (summary order)).
The Amended Complaint is dismissed without prejudice for
failure to prosecute. The Clerk of the Court is directed to

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enter judgment and to close this case. The Clerk is also
directed to close all pending motions.
SO ORDERED.
Dated:

New York, New York
March 23, 2017

____________/s/______________
John G. Koeltl
United States District Judge

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