Johnston v. Electrum Partners, LLC et al

Filing 67

ORDER: Accordingly, the Court DISMISSES this action with prejudice. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 11/1/2022) (rro)

Case 1:17-cv-07823-KPF Document 67 Filed 11/01/22 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PAMELA JOHNSTON,
Plaintiff,
17 Civ. 7823 (KPF)

-v.ELECTRUM PARTNERS, LLC and
LESLIE BOCSKOR,

ORDER

Defendants.
KATHERINE POLK FAILLA, District Judge:
On June 21, 2018, the Court granted Defendants’ motion to stay this
action pending the outcome of a parallel proceeding in the District of Nevada
and any ensuing arbitration. (Dkt. #34). The Court ordered the parties to
provide joint status updates on the Nevada proceedings every 90 days. (Id.).
Initially, the parties complied with this directive. (See, e.g., Dkt. #38-44). On
May 26, 2020, the Court permitted Joshua Alan Sliker and John A Snyder II of
Jackson Lewis P.C. to withdraw as counsel for Defendants. (Dkt. #52). From
that point forward, the Court made Plaintiff solely responsible for submitting
the status reports. (See, e.g., Dkt. #53 (noting that the parties did not submit
the status update due in June 2020 and ordering Plaintiff to provide that
update on or before July 13, 2020)).
Shortly thereafter, Plaintiff began a troubling pattern of failing to comply
with the Court’s orders. For example, Plaintiff missed her May 5, 2021 status
update deadline. (Dkt. #60). The Court reset that deadline and “admonished
[Plaintiff] to be more mindful of the Court’s orders[.]” (Id.). Despite this

Case 1:17-cv-07823-KPF Document 67 Filed 11/01/22 Page 2 of 4

warning, Plaintiff failed to file a status update in November 2021. (Dkt. #63).
Again, the Court extended Plaintiff’s deadline, but cautioned that Plaintiff’s
“continued failure to comply with the Court’s orders will not be tolerated.” (Id.).
Plaintiff did not meet the extended deadline. (Dkt. #64). The Court advised
Plaintiff that it considered dismissing the action pursuant to Federal Rule of
Civil Procedure 41(b), but gave Plaintiff a “final opportunity” to provide the
update. (Id.). The Court explicitly noted that failure to provide that update
would result in dismissal of the case with prejudice. (Id.). Plaintiff eventually
provided that update on February 2, 2021, two days after the twice-revised
deadline. (Dkt. #65). The Court accepted the late submission and repeated its
familiar admonition: “[N]o further warnings will be issued. Plaintiff’s failure to
provide an update by the Court’s deadline will result in dismissal of this case.”
(Id.).
The present Order is prompted by Plaintiff’s failure, yet again, to timely
file a status update. On May 31, 2022, the Court ordered Plaintiff to file an
update on or before October 1, 2022, and noted that “failure to comply with the
Court’s orders will result in dismissal of the case.” (Dkt. #66). Nearly one
month after the deadline, Plaintiff has still not complied with that directive.
Courts may dismiss an action due to a plaintiff’s failure to comply with
court orders. See Fed. R. Civ. P. 41(b) (“If the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may move to dismiss the
action or any claim against it.”); Link v. Wabash R.R. Co., 370 U.S. 626, 629

2

Case 1:17-cv-07823-KPF Document 67 Filed 11/01/22 Page 3 of 4

(1962) (recognizing federal courts’ inherent authority to dismiss for the same
reasons). A district court considering such a dismissal must weigh five factors:
[i] [T]he duration of the plaintiff’s failure to comply with
the court order, [ii] whether plaintiff was on notice that
failure to comply would result in dismissal, [iii] whether
the defendants are likely to be prejudiced by further
delay in the proceedings, [iv] 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
[v] 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)). No single factor is dispositive. Nita v. Conn.
Dep’t of Env’t Prot., 16 F.3d 482, 485 (2d Cir. 1994).
Each of the five factors articulated in Baptiste supports dismissal of this
action. Plaintiff has consistently missed status update deadlines since May
2021. This pattern of non-compliance has persisted despite the Court’s
repeated and explicit notices that failure to meet court-ordered deadlines would
result in dismissal. (See Dkt. #64, 65, 66). Further, dismissal will neither
prejudice Defendants nor deprive Plaintiff of her right to be heard, as the
parties are already litigating the merits of this action in the pending Nevada
proceedings. And finally, the Court has considered — and attempted to
implement — less drastic sanctions in the form of warnings. Those
admonitions had no effect on Plaintiff’s behavior in this litigation. The Court
has generously provided Plaintiff with warnings and deadline extensions. That
generosity has reached its limit. It is finally time for this long-pending case to
come to an end.
3

Case 1:17-cv-07823-KPF Document 67 Filed 11/01/22 Page 4 of 4

Accordingly, the Court DISMISSES this action with prejudice. The Clerk
of Court is directed to terminate all pending motions, adjourn all remaining
dates, and close this case.
SO ORDERED.
Dated: November 1, 2022
New York, New York
KATHERINE POLK FAILLA
United States District Judge

4