Mount Whitney Investments LLLP v. Goldman Morgenstern & Partners Consulting, LLC et al

Filing 129

ORDER: DISMISSES Plaintiff's action without prejudice. The Clerk of Court is respectfully directed to terminate any pending motions and to close the case. It is SO ORDERED. (Signed by Judge Edgardo Ramos on 8/31/2020) (ks)

Case 1:15-cv-04479-ER-GWG Document 129 Filed 08/31/20 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MOUNT WHITNEY
INVESTMENTS LLLP,
Plaintiff,
– against –

ORDER

GOLDMAN MORGENSTERN &
PARTNERS CONSULTING, LLC,
MANFRED RITTER, and STEFAN
ELSTERMAN,

15 Civ. 4479 (ER) (GWG)

Defendants.
RAMOS, D.J.:
Plaintiff’s last action in this case was to oppose Charles C. Rainey’s motion to
withdraw as counsel on May 12, 2017. See Doc. 124. On April 9, 2019, the Court
ordered Plaintiff to file a status report by April 23, 2019. Doc. 127. Plaintiff did not do
so. ]e Court renewed this request on April 6, 2020, asking the parties to submit a status
report by May 1, 2020. Doc. 128. More than three months have passed without a
response. For the below reasons, the Court dismisses Plaintiff’s action for failure to
prosecute under Federal Rule of Civil Procedure 41(b).
“Although the text of Fed. R. Civ. P. 41(b) expressly addresses only the case in
which a defendant moves for dismissal of an action, it is unquestioned that Rule 41(b)
also gives the district court authority to dismiss a plaintiff’s 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)). ]e Second Circuit lists five factors
for a district court to consider while determining whether the “harsh remedy” of Rule
41(b) dismissal is appropriate:
(1) the duration of the plaintiff’s failures,
(2) whether plaintiff had received notice that further delays would result
in dismissal,

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(3) whether the defendant is likely to be prejudiced by further delay,
(4) whether the district judge has taken care to strike the balance between alleviating court calendar congestion and protecting a party's
right to due process and a fair chance to be heard and
(5) whether the judge has adequately assessed the efficacy of lesser
sanctions.
Id. (internal quotations and alterations omitted). ]ese factors counsel in favor of
dismissal in Plaintiff’s case.
First, Plaintiff’s last action in this case was to oppose Charles C. Rainey’s motion
to withdraw as counsel on May 12, 2017. See Doc. 124. Over three years have passed
without any notice from Plaintiff. Furthermore, the Court ordered Plaintiff to file a status
report by May 1, 2020. Doc. 128. ]is was the Court’s second such request. More than
three months have passed since that deadline. Given the length of time without action
from Plaintiff, the Court finds that this factor weighs in favor of dismissal.
Second, the Court was clear in its Order of April 6, 2020 for a status report that
failure to comply could result in the dismissal of Plaintiff’s action under Rule 41. It
wrote, “Failure to comply with this Order may result in sanctions, including dismissal for
failure to prosecute.” Doc. 128 (citing Fed. R. Civ. P. 41). Plaintiff was on notice of the
consequences of its failure to obey the Court’s Order.
Bird, “prejudice to defendants resulting from unreasonable delay may be
presumed . . . .” LeSane, 239 F.3d at 210. ]e Court sees no facts in this matter that
could rebut this presumption.
Fourth, although the lack of action in this matter does not pose too heavy a
burden on the Court’s docket, Plaintiff has failed to take advantage of its “right to due
process and a fair chance to be heard.” Id. at 209. ]is factor weighs weakly against
dismissal.
Fifth, in the face of Plaintiff’s failure to respond to the Court’s orders at all, there
are no weaker sanctions that could remedy plaintiff’s failure to prosecute.

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Given that four of the five factors weigh in favor of dismissal, the Court
DISMISSES Plaintiff’s action. ]e Clerk of Court is respectfully directed to terminate
any outstanding motions and to close the case.
It is SO ORDERED.
Dated:

August 31, 2020
New York, New York
EDGARDO RAMOS, U.S.D.J.

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