Torres et al v. Mount Sinai Hospital et al

Filing 24

DISMISSAL ORDER: For the foregoing reasons, this case is dismissed with prejudice. The Clerk of the Court is respectfully requested to close this case. SO ORDERED. (Signed by Judge Mary Kay Vyskocil on 3/11/2025) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 3/11/2025

MARIA TORRES, individually and as
administrator of the Estate of Rosa Pena and the
Estate of Rosa Pena,
Plaintiff,
-against-

1:24-cv-05769-MKV
DISMISSAL ORDER

MOUNT SINAI HOSPITAL, JANE DOE(S), and
JOHN DOE(S),
Defendants.
MARY KAY VYSKOCIL, United States District Judge:
On February 28, 2025 the Court issue an order explaining the following in more detail: (1)
Plaintiff has been on notice that the operative Complaint does not adequately establish subject
matter jurisdiction for nearly five months, (2) Plaintiff was permitted significant leniency due to
her prior pro se status, (3) now that Plaintiff has appeared as an attorney in this case, Plaintiff is
no longer entitled to the leniency the Court typically affords to pro se litigants, and (4) the Court
will dismiss this case if Plaintiff fails to file an Amended Complaint on or before March 4, 2025.
[ECF No. 23]. Plaintiff did not file an Amended Complaint by the March 4, 2025 deadline set by
the Court. Accordingly, this case will be dismissed under both Rule 41(b) and Rule 12(b)(1) of the
Federal Rules of Civil Procedure. See McLean v. City of New York, No. 04 CIV. 8353 (SAS), 2007
WL 415138, at *1 (S.D.N.Y. Feb. 6, 2007).
First, as explained in prior Court orders, the operative complaint, which Plaintiff has failed
to amend, fails to establish either diversity or federal question jurisdiction over the case. [ECF
Nos. 7, 23]. Dismissal for lack of subject matter jurisdiction is therefore warranted pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure.

Second, the Court may dismiss this case pursuant to Rule 41(b). The Second Circuit has
instructed a district court considering a Rule 41(b) dismissal to “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 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.’” Baptiste v. Sommers, 768
F.3d 212, 216 (2d Cir. 2014) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)).
The Court finds that the first four Lucas factors weigh in favor of dismissal. The first Lucas
factor weighs in favor of dismissal because Torres has repeatedly failed comply with court orders
since this case was initiated, and she has twice failed to comply with Orders directing her to file
an amended complaint. [ECF No. 23]; see Mitchell v. Lyons Prof'l Servs., Inc., 708 F.3d 463, 468
(2d Cir. 2013) (finding that the first Lucas factor weighed in favor of dismissal where “instances
of noncompliance occurred throughout” the life of the case). The second factor weighs in favor of
dismissal because Torres was repeatedly warned that failure to comply with Court orders could
result in dismissal, and specifically notified that if another failure to file an amended complaint
establishing subject matter jurisdiction by the designated deadline would “result in the dismissal
of this case.” [ECF Nos. 13, 17, 23]. The third and fourth factors also weigh in favor of dismissal
as Plaintiff has been on notice that the operative Complaint does not adequately establish subject
matter jurisdiction since October 3, 2024, and has yet failed to remedy this defect, [ECF No. 7],
and Defendant has expended resources seeking a resolution of the case against it [ECF No. 4, 14,
15]. See Mitchell, 708 F.3d at 468 (“further delays would continue to waste the time and resources”
of the defendant, and “the court has a clear need to manage its docket”).

2

The fifth factor—whether the court has considered lesser sanctions—also weighs in favor
of dismissal. The Court is mindful that Rule 41(b) dismissal is “the harshest of sanctions,” Baptiste,
768 F.3d at 217 (quoting Mitchell, 708 F.3d at 467), and “has harsh consequences for clients” who
rely on counsel to help them prosecute their case, id. (quoting LeSane, 239 F.3d at 209). However,
Torres is representing herself in this case, has failed to follow court Orders, and has been threatened
with sanctions and warned to no avail that his case could be dismissed if she continued to fail to
comply. [ECF Nos. 13, 17, 23].
For the foregoing reasons, this case is dismissed with prejudice. The Clerk of the Court is
respectfully requested to close this case.

SO ORDERED.
_________________________________
MARY KAY VYSKOCIL
United States District Judge

Date: March 11, 2025
New York, NY

3