Pichardo v. Adams et al

Filing 11

ORDER: Accordingly, this action is hereby DISMISSED without prejudice for failure to prosecute. The Clerk of Court is directed to terminate the motion at Docket Number 10 and to mark this case as closed. (Signed by Judge J. Paul Oetken on 9/16/2022) (ate)

Case 1:22-cv-04624-JPO Document 11 Filed 09/16/22 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FREDDY PICHARDO,

Plaintiff,

22-CV-4624 (JPO)

-vERIC ADAMS, et al.,

ORDER
Defendants.

J. PAUL OETKEN, District Judge:
On June 2, 2022, Plaintiff Freddy Pichardo sued Defendants Eric Adams, in his official
capacity as Mayor of the City of New York, Dr. Ashwin Vasan, in his official capacity as
Commissioner of the New York City Department of Health and Mental Hygiene, and the City of
New York, asserting federal and state claims in the Supreme Court of New York. On June 3,
2022, Defendants removed the action to this Court. (See Dkt. No. 1.) On July 29, 2022, the
Court ordered Plaintiff to file a notice of appearance by August 10, 2022, noting that failure to
do otherwise may result in dismissal for failure to prosecute. (See Dkt. No. 8.) Defendants
served a copy of the order on Plaintiff’s counsel. (See Dkt. No. 9.) To date, Plaintiff has not
appeared.
Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss an action “if
the plaintiff fails to prosecute or to comply with the rules or a court order.” Baptiste v. Sommers,
768 F.3d 212, 216 (2d Cir. 2014). It is settled that Rule 41(b) “gives the district court authority
to dismiss a plaintiff’s case sua sponte for failure to prosecute.” LeSane v. Hall’s Sec. Analyst,
Inc., 239 F.3d 206, 209 (2d Cir. 2001). Dismissal without prejudice is appropriate here. Plaintiff
was “given notice that further delay would result in dismissal,” U.S. ex rel. Drake v. Norden Sys.,
Inc., 375 F.3d 248, 254 (2d Cir. 2004), and there is prejudice where Plaintiff has caused an

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Case 1:22-cv-04624-JPO Document 11 Filed 09/16/22 Page 2 of 2

“unreasonable delay.” Lesane, 239 F.3d at 210. Dismissal without prejudice appropriately
strikes a balance “between alleviating court calendar congestion and protecting a party’s right to
due process and a fair chance to be heard.” Id. at 209.
Accordingly, this action is hereby DISMISSED without prejudice for failure to prosecute.
The Clerk of Court is directed to terminate the motion at Docket Number 10 and to mark
this case as closed.
SO ORDERED.
Dated: September 16, 2022
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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