Liberty Holdings (NYC) LLC et al v. Aposta, Inc. et al

Filing 76

ORDER OF DISMISSAL For the reasons stated above, this case is hereby DISMISSED pursuant to Federal Rule of Civil Procedure 41(b). Any pending motions are moot. All conferences are canceled. The Clerk of Court is directed to CLOSE the case and mail this Order to Plaintiffs. (And as further set forth herein.) SO ORDERED. (Signed by Judge Jennifer L. Rochon on 12/6/2022) (jca)

Case 1:18-cv-05108-JLR Document 76 Filed 12/06/22 Page 1 of 3

LIBERTY HOLDINGS (NYC) LLC et al.,
Plaintiffs,

1:18-cv-05108 (JLR)

-against-

ORDER OF DISMISSAL

APOSTA, INC. et al.,
Defendants.
JENNIFER L. ROCHON, United States District Judge:
On November 1, 2022, the Court ordered Plaintiffs to, by November 14, 2022, show
cause why this case should not be dismissed for failure to prosecute. ECF No. 75. Plaintiffs
have not made any such filing. For the following reasons, the case is DISMISSED.
DISCUSSION
If a plaintiff fails to prosecute its case, the Court may dismiss the case under Federal Rule
of Civil Procedure 41(b). See, e.g., Shannon v. GE, 186 F.3d 186 (2d Cir. 1999) (affirming Rule
41(b) dismissal for failure to prosecute). In maki

would result in dismissal, (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

and (5) whether the judge has adequately assessed the efficacy of lesser s

Id. at 193-

94.

Court will review the factors as each warrants dismissal. Id
has caused a significant delay. There has been no docket activity by Plaintiffs in this action for

Case 1:18-cv-05108-JLR Document 76 Filed 12/06/22 Page 2 of 3

over 14 months, when P

former counsel moved to withdraw on September 29, 2021 and

served that motion on Plaintiffs that same day. ECF Nos. 67, 70. Since that time, Plaintiffs have
failed to comply and file submissions pursuant to Court orders dated August 16, 2022,
September 15, 2022, October 12, 2022, and November 1, 2022. ECF Nos. 72, 73, 74, 75. The
Court has mailed its orders to Plaintiffs at their address listed on the docket and on the Civil
Cover Sheet filed by Plaintiffs.
undeliverable, Plaintiffs have never contacted the Court to provide any alternative address, even
when directed to by the Court (see ECF No. 74), and the Court is not aware of any other
addresses for Plaintiffs. By failing to communicate to the Court and/or obtain counsel over an
extended period of time,

n strongly suggests an unwillingness to prosecute

Plutus I, LLC v. Itria Ventures LLC, No. 18-cv-09616 (AT), 2019 U.S. Dist. LEXIS
7953, at *6 (S.D.N.Y. Jan. 15, 2019) (dismissing case because the plaintiff limited liability
company failed to obtain counsel or respond to court orders over three months).
Second, the Court warned Plaintiffs on multiple occasions that further delay and noncompliance would result in dismissal. See, e.g., ECF Nos. 74, 75. On October 12, 2022, the
in dismissal
for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b)

in

Third, further
delay is likely to prejudice Defendants, who face a lingering lawsuit without any apparent way to
communicate meaningfully with their adversary and reach a resolution of this litigation, and
where the inexcusable delay has extended over a substantial period of time.
Fourth, by providing Plaintiffs multiple opportunities to respond to Court orders and
delaying dismissal, the Court has balanced the need to alleviate court congestion with Plaintiffs
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Case 1:18-cv-05108-JLR Document 76 Filed 12/06/22 Page 3 of 3

right to proceed with their case. Fifth, no less severe remedy than dismissal would be sufficient,
especially because Plaintiffs have been afforded multiple opportunities to remedy their failure
over a prolonged period of time

and yet have continued to neither respond to nor comply with

the Court.
Accordingly, because the circumstances of this case are sufficiently extreme, this case is
dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See, e.g.,
, 520 F.3d 176 (2d Cir. 2008) (affirming dismissal

prosecute); Shannon, 186 F.3d at 194, 196 (affirming Rule 41(b) dismissal where the plaintiff
; Plutus I, LLC, 2019 U.S. Dist. LEXIS
7953, at *6 (dismissing case because the plaintiff limited liability company failed to obtain
counsel and prosecute the case over three months).
CONCLUSION
For the reasons stated above, this case is hereby DISMISSED pursuant to Federal Rule of
Civil Procedure 41(b). Any pending motions are moot. All conferences are canceled. The Clerk
of Court is directed to CLOSE the case and mail this Order to Plaintiffs.
Dated: December 6, 2022
New York, New York
SO ORDERED.

JENNIFER L. ROCHON
United States District Judge

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