Waller v. City Of New York et al
Filing
19
ORDER with respect to 18 Letter Motion for Discovery. The Court treats this letter as a motion for reconsideration and to discuss any papers in opposition shall be be filed on or before Feb. 11, 2025. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 1/29/2025) (ar)
Case 1:21-cv-00209-LAK
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VSDC SONY
DOCUMENT
MEMO ENDORSED
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THE CITY OF NEW YORK
MURIEL GOODE-TRUFANT
Corporation Counsel
LAW DEPARTMENT
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I 00 CHURCH STREET
EW YORK, NY 10007
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IN A SHAPOVALO VA
Senior Counsel
Phone: (2 12) 356-2656
Fax: (212) 356-3509
Email : inshapov@law.nyc.gov
BYECF
Ho norable Lewis A. Kaplan
United States District Judge
United States District Court
Southern District of New York
500 Pearl Street
New York, New York I 0007
Christian Waller v. City of ew York, et al.,
21 Civ. 209 (LAK)
Your Honor:
I am a Senior Counsel in the Office of Muriel Goode-Trufant, Corporation
Counsel of the City of New York, and the attorney for defendants City of New York and Kurwi n
Klein ("defendants") in the above-mentioned matter. 1 Defendants write to respectfully request
that the Court: ( I) reconsider its decision to re-open discovery in this matter; and (2) dismiss this
action for failure to prosecute pursuant to Rule 4l (b) of the Federal Rules of Civil Procedure.
On January 14, 2025, Your Honor ordered the plaintiff to show cause as to w hy
this case should not be dismissed for failure to prosecute. See ECF No. I 3. In response,
plaintiffs counsel Sameer Nath filed a letter on January 20, 2025 indicating that although he
drafted the Complaint, the mediation memo and attended the mediation representing the plaintiff
in this case, a more senior attorney in the firm, Samuel DePaola, indicated to him that Mr.
DePaola would be hand ling the remainder of the prosecution fo llowing the mediation in th is
matter. See ECF o. 14. Mr. Nath further requested that the Court re-open d iscovery. See id.
Defendants respectfu lly submit that plaintiffs January 20, 2025 letter omits relevant
communication attempts to which Mr. ath was privy following the June 202 1 mediation and
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January 24, 2025
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T his case has been assigned to Senior Counsel Jonathan Hutchinson, who is awaiting admission
to the Southern District. Mr. Hutchinson is handling this matter under my supervision and may
be reached at (2 12) 356-24 10 or jhutchin@law.nyc.gov.
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which are relevant for the Court's consideration of dismissal of this matter for failure to
prosecute.
By way of relevant background, plaintiff brings this action pursuant to 42 U,S,C,
§ 1983, alleging, inter alia, unlawful search and seizure, false arrest, excessive force, malicious
prosecution, fai lure to intervene, and a claim for municipal liability, stemming from an incident
alleged to have occurred on January 10, 2019. On June 15, 2021 , the parties attended a mediation
conference but were unable to resolve the matter. See ECF No. 12. Thereafter, Senior Counsel
Nicolette Pellegrino contacted both Samuel DePaola and Sameer Nath as counsel for plaintiff by
e-mail on four separate occasions between February 8, 2022 and February 2, 2023. On each
occasion Ms. Pellegrino requested that Mr. DePaola and Mr. ath respond to her in order for the
parties to confer and jointly request discovery deadlines from the Court. Neither Mr. DePaola nor
Mr. Nath ever responded to any of Ms. Pellegrino' s e-mails. Plaintiff then only appeared in
response to Your Honor's Order to Show Cause over three and a half years later.
The plaintiffs failure to take any action to prosecute his claims for over three and
a half years is grounds for dismissal for failure to prosecute pursuant to Rule 41 (b) of the Federal
Rules of C ivil Procedure. The Second Circuit has held that a case may be dismissed for a
plaintiffs failure to prosecute when "lying dormant with no significant activity to move it."
Lyell Theatre Corp. v. Loews Corp .• 682 F,2d 37. 42 (2d Cir. 1982). Significant activity includes
participating in discovery. Stoute v. Rockefeller Found., 93 Civ. 2628 (SAS), 1995 U,S, Djst,
LEXIS 17875, at *I (S.D . .Y. Nov. 27, 1995).
In considering a Rule 41 (b) dismissal, courts weight five factors: "( l ) the duration
of the plaintiffs failures; (2) whether plaintiff had received notice that further delays would result
in dismissal; (3) whether defendant is likely to be prejudiced by further delay; (4) whether the
district judge has carefully balanced the need to alleviate court calendar congestion and a party's
right to due process; and (5) whether the court has assessed the efficacy of lesser sanctions."
United States ex rel. Drake v. Norden Sys .. Inc .. 375 F,3d 248, 254 (2d Cir. 2004). "Generally,
no one factor is dispositive." Nita v. Connecticut Oep't of Envtl. Protection, 16 F,3d 482, 485
(2dCir.1994).
Firstly, the forty-two (42) month period of inactivity in this matter far exceeds
periods of inactivity that have justified dismissal in the Second Circuit. See, e.g., Ruzsa v.
Rubenstein & Sendy Att'ys at L., 520 F.3d 176. 177 (2d Cir. 2008) (per curiam) (characterizing a
delay of under eight months as a "delay of significant duration"); Lyell Theatre Corp .. 682 F.2d
at 43 (delays that are "merely a matter of months" may support dismissal); Chira v. Lockheed
Aircraft Corp., 634 F.2d 664, 666-68 (2d Cir. 1980) (concluding that a six-month delay sufficed
for dismissal).
Secondly, despite the defendants' repeated attempts, plaintiff failed to respond to
any of the e-mails from Ms. Pel legrino and fai led to move forward with this litigation in any way
for over three and a half years.
Third, the defendants are likely to be prejudiced by further delay. " Prejudice to
defendants resulting from unreasonable delay may be presumed." Lyell Theater Corp .. 682 F 2d
.at...13.. As the proceedings become more remote from the alleged incident underlying plaintiffs
claims, the defendants' ability to persuasively defend against those claims degrades with the
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memories of the relevant witnesses. Particularly as in this case, where the delay was over three
and a half years.
Fourth, the court must take into consideration judicial economy and alleviating
court congestion in a balancing test against the p laintiff s due process rights. G iven the primary
purpose of Rule 41 (b) - to promote the "swift disposition of cases" - the balance between
judicial resources and the plaintiff s due process rights should weigh " heavily in favor of the
former." Stoute v. Rockefeller Found., 1995 U.S. Djst, LEXIS 17875, at *8.
Fifth, the imposition of lesser sanctions would be unlikely to provide a remedy
that would adequately protect the rights of the defendants and further the swift reso lution of the
case, given the duration of the existing delay. See, e.g .. Yan v. Kohler, 91 Civ. 1689 (LAP), 1m
U,S, Dist, LEXIS 1626, at *I I (S.D.N.Y. Feb. 17, 1994) ("Given the duration of the plaintiffs
dilatory conduct, and its persistence in the face of efforts by the court and opposing counse l to
move the case forward, there is no basis to conclude that sanctions short of dismissal wo uld
remedy the s ituatio n.").
The Court sho uld appropriately exercise its discretion in dismissing this case for
failure to prosecute in the interest of judicial economy, " to prevent undue delays in the
disposition of pending cases and to avoid congestion in the calendars of the District Court." L ink
v. Wabash Railroad Co., 370 U,S, 626, 629-30 (1962).
Accordingly, defendants respectfully request that the Court: ( I ) reconsider its
decision to re-open discovery in this matter; and (2) dismiss this action for failure to prosecute
pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure.
Thank you for your consideration here in.
Respectfully submitted,
/6I Jnna Sftapcu.ial,wa
Inna Shapovalova
Senior Counsel
Special Federal L itigation Division
cc:
BYECF
Sameer ath, Esq.
Attorney for Plaintiff
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LEWIS A. KAPLA~ / ; } / /
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