Fernandes v. Blumenthal et al

Filing 33

ORDER: Accordingly, the Court DISMISSES this action with prejudice for failure to prosecute and failure to comply with Court orders. See Murphy v. Spaulding, No. 20 Civ. 9013 (KMK), 2022 WL 1063138, at *1 (S.D.N.Y. Mar. 30, 2022) (dismissing case fo r failure to prosecute after plaintiff neglected to file a second amended complaint or respond to the Courts show cause order); Djokovic v. U.S. Justice Dep't, No. 07 Civ. 2608 (SJ), 2008 WL 3200191, at *1-2 (E.D.N.Y. Aug. 6, 2008) (dismissing c ase for, among other reasons, failure to prosecute where the plaintiffs were ordered to submit a letter stating "whether [they] intend[ed] to proceed with th[e] action," but plaintiffs failed to submit such a letter); Lopez v. Catholic Char ities of the Archdiocese of N.Y., No. 00 Civ. 1247 (AGS), 2001 WL 50896, at *4 (S.D.N.Y. Jan. 22, 2001) (dismissing for failure to prosecute where plaintiff ceased to prosecute [the] action at all" for three months). The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 9/24/2024) (sgz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TRISTAN MATHEW FERNANDES,
Plaintiff,
-v.TODD BLUMENTHAL; BRIAN ENG; STEPHEN
WEAFER; LOCAL 32BJ SEIU; and FIRST
SERVICE RESIDENTIAL,

23 Civ. 9534 (KPF)
ORDER

Defendants.
KATHERINE POLK FAILLA, District Judge:
Plaintiff filed the Complaint in this action on October 27, 2023. (Dkt.
#1). On April 8, 2024, Defendants filed a pre-motion letter regarding their
anticipated motion to dismiss in this matter. (Dkt. #22). The parties then
appeared before this Court on April 25, 2024, for a pre-motion conference
regarding Defendants’ anticipated motion to dismiss. (See April 25, 2024
Minute Entry; Dkt. #24 (Transcript of Proceedings)). At that conference, the
Court directed Plaintiff to submit a letter within 45 days, informing the Court
of his intention to amend his complaint. (April 25, 2024 Minute Entry).
Plaintiff failed to do so. Accordingly, on July 18, 2024, the Court ordered
Plaintiff to submit a letter on or before August 1, 2024, indicating whether
Plaintiff intended to amend the complaint, proceed on his original complaint, or
voluntarily discontinue this action either with or without prejudice pursuant to
Fed. R. Civ. P. 41. (Dkt. #29). Despite the Court’s warning that Plaintiff’s
continued failure to comply with the Court’s orders may result in dismissal of
the action, Plaintiff failed to comply with the Court’s directive.

On August 6, 2024, Defendants Todd Blumenthal, Brian Eng, Stephen
Weafer, and FirstService Residential filed a letter renewing their request for
dismissal of this action. (Dkt. #30). Defendant Local 32BJ SEIU joined that
letter. (Dkt. #31). As such, the Court issued an Order to Show Cause on
August 12, 2024, directing Plaintiff to show cause, in writing, why his case
should not be dismissed for failure to prosecute and comply with Court orders
by August 26, 2024. (Dkt. #32). Almost one month after the deadline, Plaintiff
has still not complied with the Court’s instructions.
Courts may dismiss an action due to a plaintiff’s failure to comply with
court orders. See Fed. R. Civ. P. 41(b) (“If the plaintiff fails to prosecute or
comply with these rules or a court order, a defendant may move to dismiss the
action or any claim against it.”); Link v. Wabash R.R. Co., 370 U.S. 626, 629
(1962) (recognizing federal courts’ inherent authority to dismiss for the same
reasons). Although Rule 41(b) expressly addresses a situation in which a
defendant moves to dismiss for failure to prosecute, it has long been recognized
that a district court has the inherent authority to dismiss for failure to
prosecute sua sponte. See LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206,
209 (2d Cir. 2001) (citing Link, 370 U.S. at 630).
While dismissal under Rule 41(b) is subject to the sound discretion of the
district courts, see U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 250-51
(2d Cir. 2004), the Second Circuit has stated that a Rule 41(b) dismissal is a
“harsh remedy to be utilized only in extreme situations,” LeSane, 239 F.3d at
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209 (internal quotation mark omitted) (quoting Theilmann v. Rutland Hosp.,
Inc., 455 F.2d 853, 855 (2d Cir. 1972)). Nonetheless, it has also stated that the
authority to invoke dismissal for failure to prosecute is “vital to the efficient
administration of judicial affairs and provides meaningful access for other
prospective litigants to overcrowded courts.” Lyell Theatre Corp. v. Loews
Corp., 682 F.2d 37, 42 (2d Cir. 1982).
Before exercising its discretionary authority to dismiss for failure to
prosecute, a district court considering should weigh five factors:
[i] [T]he duration of the plaintiff’s failure to comply with
the court order, [ii] whether plaintiff was on notice that
failure to comply would result in dismissal, [iii] whether
the defendants are likely to be prejudiced by further
delay in the proceedings, [iv] a balancing of the court’s
interest in managing its docket with the plaintiff’s
interest in receiving a fair chance to be heard, and
[v] whether the judge has adequately considered a
sanction less drastic than dismissal.
Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (quoting Lucas v. Miles,
84 F.3d 532, 535 (2d Cir. 1996)). No single factor is dispositive. Nita v. Conn.
Dep’t of Env’t Prot., 16 F.3d 482, 485 (2d Cir. 1994).
The Court concludes that these factors weigh in favor of dismissal in this
action. Plaintiff has consistently failed to comply with Court orders or
prosecute this case over a period of many months. This pattern of noncompliance has persisted despite the Court’s attempts to work with Plaintiff
and its explicit notice to him that his failure to prosecute and comply with
Court orders would result in dismissal. (Dkt. #29, 32). Further, the Court has
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considered — and attempted to implement — less drastic sanctions in the form
of warnings. Despite that fact, Plaintiff has not communicated with the Court
since the pre-motion conference held on April 25, 2024. (See April 25, 2024
Minute Entry).
Accordingly, the Court DISMISSES this action with prejudice for failure
to prosecute and failure to comply with Court orders. See Murphy v.
Spaulding, No. 20 Civ. 9013 (KMK), 2022 WL 1063138, at *1 (S.D.N.Y. Mar. 30,
2022) (dismissing case for failure to prosecute after plaintiff neglected to file a
second amended complaint or respond to the Court’s show cause order);
Djokovic v. U.S. Justice Dep’t, No. 07 Civ. 2608 (SJ), 2008 WL 3200191, at *1-2
(E.D.N.Y. Aug. 6, 2008) (dismissing case for, among other reasons, failure to
prosecute where the plaintiffs were ordered to submit a letter stating “whether
[they] intend[ed] to proceed with th[e] action,” but plaintiffs failed to submit
such a letter); Lopez v. Catholic Charities of the Archdiocese of N.Y., No. 00 Civ.
1247 (AGS), 2001 WL 50896, at *4 (S.D.N.Y. Jan. 22, 2001) (dismissing for
failure to prosecute where plaintiff “ceased to prosecute [the] action at all” for
three months).
The Clerk of Court is directed to terminate all pending motions, adjourn
all remaining dates, and close this case.
Dated: September 24, 2024
New York, New York
KATHERINE POLK FAILLA
United States District Judge
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