Funes v. The City of New York et al

Filing 80

ORDER OF DISMISSAL... It is hereby ORDERED that the case is dismissed without prejudice for failure to prosecute. Defendants shall promptly mail a copy of this Order on Mr. Funes and file proof of such service on the docket. The Clerk of Court is directed to terminate ECF No. 79 and to close the case. SO ORDERED., Motions terminated: 79 LETTER MOTION to Compel Frederick Funes to Requesting Dismissal of the Claim Pursuant to Fed. R. Civ. P. 41(b) addressed to Judge Jesse M. Furman from John Schemitsch dated December 29, 2020. filed by The City of New York, Fernandez, Muhammad. (Signed by Judge Jesse M. Furman on 1/7/21) (yv)

Case 1:18-cv-09558-JMF Document 80 Filed 01/07/21 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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FREDERICK FUNES,
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Plaintiff,
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-v:
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CITY OF NEW YORK et al.,
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Defendants.
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18-CV-9558 (JMF)
ORDER OF DISMISSAL

JESSE M. FURMAN, United States District Judge:
On July 24, 2020, Defendants filed a motion to compel Plaintiff Frederick Funes,
proceeding pro se, to respond to Defendants’ First Set of Document Requests and
Interrogatories. ECF No. 56. The Court granted the motion and ordered Mr. Funes to “provide
all responses to Defendants’ discovery requests no later than September 4, 2020.” ECF No. 59.
On August 24, 2020, shortly after receiving a letter from Mr. Funes dated August 1, 2020, the
Court extended his deadline to comply to October 5, 2020. See ECF No. 61. In doing so, the
Court warned Mr. Funes that “failure to cure any discovery deficiencies by the date could result
in sanctions, including but not limited to dismissal of his complaint.” Id. at 1. On October 22,
2020, after Mr. Funes failed to cure the deficiencies in his discovery obligations, the Court
ordered him to show cause, within thirty days, why the complaint should not be dismissed for
failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure in light of his
continued failure — long after his deadline had passed — to respond to Defendants’ discovery
requests. See ECF No. 73. Mr. Funes was warned that “[f]ailure to show such good cause (or
otherwise indicate an intention to proceed with the lawsuit) may result in dismissal of the case as
abandoned or for failure to prosecute pursuant to Rule 41.” Id. at 2. Mr. Funes failed to do so.

Case 1:18-cv-09558-JMF Document 80 Filed 01/07/21 Page 2 of 3

On November 23, 2020, Defendants moved to dismiss the complaint for failure to
prosecute pursuant to Rule 41(b). ECF No. 76. Two days later, after receiving a letter from Mr.
Funes dated September 28, 2020, the Court denied Mr. Funes’s request for the appointment of
counsel, but gave him “one final [thirty-day] extension . . . to comply with the Court’s Order to
Show Cause dated October 22, 2020.” ECF No. 77, at 2. Accordingly, Defendants’ motion was
denied without prejudice to renew. Mr. Funes was again warned that “[f]ailure to show such
good cause (or otherwise indicate an intention to proceed with the lawsuit) may result in
dismissal of the case as abandoned or for failure to prosecute pursuant to Rule 41.” Id.
To date, Mr. Funes has not shown such good cause. On December 29, 2020, following
the expiration of Mr. Funes’s final extension to respond, Defendants renewed their motion to
dismiss the complaint for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure. See ECF No. 79.
The Supreme Court and the Second Circuit have long recognized that federal courts are
vested with the authority to dismiss a plaintiff’s action with prejudice because of his failure to
prosecute, a power that is “necessary in order to prevent undue delays in the disposition of
pending cases and to avoid congestion in the calendars of the District Courts.” Link v. Wabash
R.R. Co., 370 U.S. 626, 629-30 (1962); see also United States ex rel. Drake v. Norden Sys., Inc.,
375 F.3d 248, 250 (2d Cir. 2004). Because dismissal is “one of the harshest sanctions at a trial
court’s disposal,” it must be “reserved for use only in the most extreme circumstances.” Id. at
251. In considering a Rule 41(b) dismissal, courts 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

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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.” Lucas v. Miles, 84 F.3d 532, 535
(2d Cir. 1996).
In this case, Mr. Funes was on notice of his obligation to respond to Defendants’
discovery requests at least since the Court’s August 12, 2020 Order compelling him to do so no
later than September 4, 2020. ECF No. 59. Moreover Mr. Funes was repeatedly warned that his
failure to comply with his discovery obligations could result in dismissal of his case. See ECF
Nos. 59, 61, 74, 77. In light of Mr. Funes’s apparent total unwillingness to comply with
Defendants’ discovery requests, dismissal of the case is warranted. However, given Mr. Funes’s
pro se status, the Court finds that dismissal without prejudice is more appropriate than dismissal
with prejudice. See Waters v. Camacho, 288 F.R.D. 70, 71 (S.D.N.Y. 2013) (finding that “the
lesser sanction of dismissal without prejudice . . . is appropriate in order to strike the appropriate
balance between the right to due process and the need to clear the docket and avoid prejudice to
defendants” (internal quotation marks omitted)).
Accordingly, it is hereby ORDERED that the case is dismissed without prejudice for
failure to prosecute.
Defendants shall promptly mail a copy of this Order on Mr. Funes and file proof of such
service on the docket.
The Clerk of Court is directed to terminate ECF No. 79 and to close the case.
SO ORDERED.
Dated: January 7, 2021
New York, New York

__________________________________
JESSE M. FURMAN
United States District Judge

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