Vaccaro v. Corporate Resource Services, Inc.

Filing 44

ORDER: For the foregoing reasons, it is hereby ORDERED that this case is dismissed without prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). The Clerk of Court is respectfully directed to close the matter. SO ORDERED. (Signed by Judge Ronnie Abrams on 11/30/2023) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

FRANK VACCARO,
Plaintiff,
No. 15-CV-3895 (RA)
v.
ORDER
CORPORATE RESOURCE SERVICES,
INC.,
Defendant.

RONNIE ABRAMS, United States District Judge:
On May 20, 2015, Plaintiff Frank Vaccaro filed this action for breach of contract against
Defendant Corporate Resource Services, Inc. On July 27, 2015, Defendant advised the Court that
it had filed for Chapter 11 bankruptcy and that this action was thus subject to the automatic stay
provision of the Bankruptcy Code, 11 U.S.C. § 362. On July 28, 2015, the Court directed the
Clerk of Court to place this action on the suspense docket. Since then, the Court has requested
periodic status updates from the parties. Plaintiff has failed to respond to numerous orders of this
Court directing him to file a status update. For the reasons that follow, the case is dismissed,
albeit without prejudice.
BACKGROUND
On October 14, 2022, this Court issued an order directing Plaintiff to submit a status
update by April 14, 2023.1 Dkt. 39. Having received no letter from Plaintiff by that date, this
Court issued another order on April 21, 2023, requiring Plaintiff to submit a status update by
May 1, 2023. Dkt. 40. Again receiving no update from Plaintiff, this Court issued another order

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The Court inadvertently listed the deadline as April 22, 2022, but corrected the date to April 22, 2023 in a
subsequent order. Dkts. 39, 40.

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on October 2, 2023 requiring Plaintiff to submit a status letter to the Court by October 9, 2023.
Dkt. 41. Because Plaintiff once again failed to submit a status letter, this Court issued yet another
order on October 16, 2023 requiring Plaintiff to submit a status letter to the Court by October 23,
2023. Dkt. 42. Plaintiff did not do so. The October 2nd and October 16th orders warned Plaintiff
that the failure to file a status letter “may result in dismissal of this action pursuant to Federal
Rule of Civil Procedure 41(b).” Dkts. 41, 42.
On October 26, 2023, this Court issued its fifth order directing Plaintiff to file a status
letter, this time by November 2, 2023. In the October 26th order, the Court warned that the failure
to file such a letter “will result in dismissal of this action pursuant to Federal Rule of Civil
Procedure 41(b).” Dkt. 43 (emphasis added). To date, Plaintiff has not filed a status letter,
applied for an extension of time, or otherwise communicated with the Court.
LEGAL STANDARD
Rule 41(b) of the Federal Rules of Civil Procedure provides that a district court may
dismiss an action if “the plaintiff fails to prosecute or otherwise comply with [the] rules or a
court order.” Fed. R. Civ. P. 41(b); see also Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir.
2014) (per curiam). Under Rule 41(b), a district court may dismiss an action sua sponte for failure to
prosecute after notifying the plaintiff. See LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d
Cir. 2001). “A district court considering a Rule 41(b) dismissal must weigh five factors: ‘(1) the
duration of the plaintiff’s 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 plaintiff’s interest in receiving a fair chance to be heard, and (5) whether the judge
has adequately considered a sanction less drastic than dismissal.’” Baptiste, 768 F.3d at 216 (quoting
Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). “No single factor is generally dispositive.” Id.

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DISCUSSION
Numerous factors weigh in favor of dismissing this action under Rule 41(b). First, the
duration of Plaintiff’s failure to comply with the Court’s repeated requests for an update is over a
year. Plaintiff first failed to respond to the Court’s order of October 14, 2022, and has not
responded to subsequent orders directing that he provide the Court with an update. Second, it has
been almost two months since the Court warned Plaintiff that the failure to timely file a status
letter may result in dismissal of this action pursuant to Rule 41(b). Additionally, the Court
warned Plaintiff over a month ago, on October 26, 2023, that failure to file a timely status letter
will result in dismissal under Rule 41(b). Finally, this case has been stayed since 2015, and the
Court has an obligation “to secure the just, speedy, and inexpensive determination of every
action and proceeding.” Fed. R. Civ. P. 1. Accordingly, dismissal is appropriate here.
Nonetheless, the Court concludes that a “less drastic” sanction than dismissal with
prejudice is appropriate in this case. Baptiste, 768 F.3d at 216–17 (explaining that dismissal with
prejudice “has harsh consequences for clients, who may be blameless” and therefore “should be
used only in extreme situations”). The case was stayed at an early stage of litigation, just after
the Complaint was filed and it does not appear from the docket that Defendant has put significant
resources into defending the case. This action has also not substantially burdened the Court’s
docket: the Court has not decided any substantive motions, held any hearings, presided over any
discovery, or scheduled trial. Under these circumstances, the Court finds that dismissal without
prejudice is a less harsh, and more appropriate, sanction for Plaintiff’s failure to communicate
with the Court or to comply with the Court’s orders.

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CONCLUSION
For the foregoing reasons, it is hereby ORDERED that this case is dismissed without
prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). The Clerk of
Court is respectfully directed to close the matter.
SO ORDERED.
Dated:

November 30, 2023
New York, New York
__________________________________
Ronnie Abrams
United States District Judge

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