J & J Sports Productions, Inc. v. Patin

Filing 46

MEMORANDUM & ORDER granting 42 Motion to Dismiss for Lack of Prosecution: The Motion is granted, and the Clerk of the Court is directed to close the case. (Signed by Judge Louis L. Stanton on 7/7/2023) (ml) Transmission to Orders and Judgments Clerk for processing.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
J & J SPORTS PRODUCTIONS ,

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INC .,

Plaintiff ,
- against -

1 8 Civ . 3914

ZENEYDA PATIN INDIVIDUALLY AND D/B/A
CRAZY LOVE STUDIOS ,

(LLS)

MEMORANDUM & ORDER

Defendant .

Facts and Procedural History

On May 1 , 2018 , Plaintiff J&J Sports Productions , Inc .
(" J&J " ) fi l ed a complaint against defendant Zeneyda Patin ,
individual l y and d . b . a . Crazy Love Studios (" Patin " ) , alleging
that Patin broadcasted a program that J&J had the exclusive
rights to without J&J ' s authorization in violation of 47 U. S . C .
§§

605 and 553 . See generally Complaint (the "Comp ." )

(Dkt . No .

1) .

On June 7 , 2018 , Patin filed an answer and counterclaim
against J&J .

(Dkt . Nos . 7 , 8) . That counterclaim was dismissed

on January 23 , 2019 .

(Dkt . No . 22) . On February 15 , 2019 , the

parties appeared for an initial 16(b) conference , after which
the case was stayed for several months after Patin ' s attorney
informed the Court that that Patin had suffered a medical
ailment that required a four - month rehabilitation program.

( Dkt .

Nos . 25 , 26). A continued 16(b) conference was then held on July
26 , 20 1 9 .
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Following that conference , the Court received no
communication from either party for over two and a half years
until J&J requested leave to file a Motion to Dismiss for
Failure to Prosecute on February 17 , 2022 .

(0kt. No . 26) . On

February 28 , 2022 , Patin filed that motion , which J&J timely
opposed .

(Dkt Nos . 29 , 32) . On May 5 , 2022 , the Motion to

Dismiss for Failure to Prosecute was denied ; the Court found
that "plaintiff ' s delays in processing the case were primarily
the result of plaintiff ' s reliance on defendant ' s assertions
that she was too ill to be able to deal with the case ."

(Dkt .

No . 39).
The Court received no communication from either party for
over a year until Patin again requested leave to file the
present Motion to Dismiss for Failure to Prosecute (the
" Motion " ) on May 1 6 , 2023 . Patin filed that Motion on June 2 ,
2023 .

(0kt . No . 42) . J&J did not respond to Patin ' s request for

leave to file the Motion nor the Motion itself .
Legal Standard

Federal Rule of Civil Procedure 4l(b) authorizes a district
court to dismiss an action if the plaintiff fails to prosecute
its claims . Fed. R. Civ . P . 4l(b) ; Baptiste v . Sommers , 768 F . 3d
212 , 216 (2d Cir . 2014) . Before dismissing a case pursuant to
Rule 4l(b) , the district court must weigh five factors to
determine whether ,
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(1) the plaintiff ' s failure to pro s ecute caused a
delay of significant duration ; (2) plaintiff was given
notice that further delay would result in dismissal ;
(3) defendant was likely to be prejudiced by further
delay ; (4) the need to alleviate court calendar
congestion was carefully balanced against plaintiff ' s
right to an opport u nity for a day in court ; and (5)
the trial court adequately assessed the efficacy of
lesser sanctions .
U. S . ex rel . Drake v . Norden Sys ., Inc ., 375 F . 3d 248 , 254 (2d
Cir . 2004) ; see Baptiste , 768 F . 3d at 216 . No single factor in
the analysis is dispositive . Baptiste , 768 F . 3d at 216.
Discussion

The balance of those factors favors dismissal. With regard
to the first factor , the Court should consider "(l) whether the
failures to prosecute were those of the plaintiff ; and (2)
whether these failures were of significant duration ." Martens v .
Thomann , 273 F . 3d 159 , 180 (2d Cir . 2001)

(internal citations

omitted) . Here , the J&J has not communicated with the Court in
over a year , and Patin ' s attorney has submitted an declaration
attesting to his attempts to contact J&J ' s attorney with no
response . With no evidence to the contrary , the delay can be
attributed to J&J .
" The Second Circuit has not indicated exactly how much time
must elapse before a delay qualifies as ' significant ,' but
precedent suggests that delays of even less than one year may
qualify ." Rubin v . Abbott Lab ' ys , 319 F . R . D. 118 , 120 (S.D . N. Y.
2016) . This case has had no activity for over a year , and with

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the exception of the first motion for failure to prosecute , the
case has not progressed past the initial 16(b) conference since
it began over five years ago . That time lapse is significant and
favors dismissal.
As to the second factor,

J&J had fair notice that failure

to prosecute its case would result in dismissal . J&J was subject
to a prior motion to dismiss for failure to prosecute that it
opposed , which evidences J&J ' s understanding of the consequences
of failure to prosecute its claims . J&J then received a
notification of Patin ' s letter requesting a pre-motion
conference for this instant motion . J&J did not respond to that
pre - motion conference request nor oppose the present motion .
Third , Patin will be prejudiced if dismissal is not
granted . " Prejudice to defendants resulting from unreasonable
delay may be presumed ." Lyell Theatre Corp. v . Loews Corp ., 682
F.2d 37 , 43 (2d Cir . 1982) . As discussed supra , the delay in
this case has been extensive , and J&J has not put forth any
justification for that delay . This factor favors dismissal .
The fourth factor requires the Court to balance its own
interest in managing its docket with J&J ' s interest in receiving
a fair chance to be heard . While this case has not had " an
extreme effect on court congestion ," which would generally be
required to overcome J&J ' s interest in having a fair chance to
be heard , Baptiste , 768 F . 3d at 218 - 19 , J&J had the opportunity
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to respond to Patin ' s Motion. And this Court in fact denied
Patin ' s earlier motion to dismiss for failure to prosecute based
on J&J ' s opposition that motion . That J&J did not respond to
this instant motion is indicative that it no longer wishes to
pursue its claims . Nonetheless , as J&J 's "failure to prosecute
in this case was silent and unobtrusive rather than vexatious
and burdensome ," id . at 218 , this factor cautions against
dismissal .
Finally , lesser sanctions would likely be ineffective in
this case. J&J ' s " effective absence " from the case indicates
that J&J would be unlikely to respond to a lesser sanction .
Rubin , 319 F . R . D. at 121 . In such cases , "district courts are
not required to exhaust possible lesser sanctions before
imposing dismissal or default if such a sanction is appropriate
on the overall record ." Id .
The balance of these factors favors dismissal .
Conclusion

The Motion is granted , and the Clerk of the Court is
directed to close the case .
So ordered .
Dated:

New York , New York
July
2023

1,

L:01M-::,S

L . .s ~

LOUIS L . STANTON
U. S . D.J.
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