Cassenti v. Town of Amherst, et al
DECISION AND ORDER granting 24 Motion to Dismiss for Lack of Prosecution. Clerk of Court directed to close the file. Signed by Hon. Leslie G. Foschio on 3/30/2016. (SDW)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TOWN OF AMHERST,
JOHN DOES 1-5,
JOHN J. FIORE, and
BRIAN E. KERN,
ANNICK TCHOKONTE KAMGA KOLOKO, ESQ.
Attorney for Plaintiff
266 Elmwood Avenue
Buffalo, New York 14222
DeMARIE & SHOENBORN, P.C.
Attorneys for Defendants
JOSEPH DeMARIE, of Counsel
403 Main Street
Buffalo, New York 14203
On January 28, 2015, the parties to this action consented pursuant to 28 U.S.C.
§ 636(c)(1) to proceed before the undersigned. The matter is presently before the court
on Defendants’ motion to dismiss for failure to prosecute (Doc. No. 25), filed April 17,
BACKGROUND and FACTS1
On November 16, 2012, Plaintiff Christopher Cassenti (“Plaintiff” or “Cassenti”),
commenced this civil rights action pursuant to 42 U.S.C. § 1983, alleging Defendants,
including the Town of Amherst (“Town”), and Officers of the Town of Amherst Police
Department John Does 1-5, John F. Fiore, and Brian E. Kern (together, “Defendants”),
subjected Plaintiff to unnecessary force in connection with Plaintiff’s arrest on August
19, 2011, causing physically injuries, mental anguish, emotional distress, and incurring
medical expenses. Defendants’ answer was filed on January 25, 2013 (Doc. No. 4).
At a scheduling conference conducted by the undersigned on February 19, 2015,
(Doc. No. 22), Plaintiff’s attorney, Annick Tchokonte Kamga Koloko (“Ms. Koloko”),
advised that she had had no contact with Plaintiff since 2014, but would make another
attempt to locate Plaintiff. At a status conference held April 15, 2015, (Doc. No. 23),
Ms. Koloko advised the undersigned that she had been unable to locate Plaintiff and
had no knowledge of Plaintiff’s whereabouts.
On April 17, 2015, Defendants filed their motion to dismiss for failure to
prosecute (Doc. No. 24) (“Defendants’ motion”), supported by the attached Affidavit of
Joseph DeMarie, Esq. (“DeMarie Affidavit”). Plaintiff has not responded in opposition
to Defendants’ motion, and Defendants have not filed any reply in further support of
Defendants’ motion. Oral argument was deemed unnecessary.
Based on the following, Defendants’ motion is GRANTED.
The Facts are taken from the pleadings and motion papers filed in this action.
Pursuant to Fed.R.Civ.P. 41(b) (“Rule 41(b)”), an action may be dismissed on the
merits and with prejudice if the plaintiff fails to prosecute or to comply with the Federal
Rules of Civil Procedures, or a court order. Although Rule 41(b) does not define what
constitutes a “failure to prosecute,” the Second Circuit Court of Appeals has stated that
such failure “can evidence itself either in an action lying dormant with no significant
activity to move it or in a pattern of dilatory tactics.” Lyell Theatre Corp. v. Loews Corp.,
682 F.2d 37, 42 (2d Cir. 1982). It is within a district judge’s discretion to dismiss an
action for failure to prosecute. United States ex rel. Drake v. Norden Systems, Inc., 375
F.3d 248, 254 (2d Cir. 2004). See also Alvarez v. Simmons Market Research Bureau,
Inc., 839 F.2d 930, 932 (2d Cir. 1988) (whether to grant a motion seeking dismissal
under Rule 41(b) “is a matter committed to the discretion of the district court.” (citing
Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962))). Because “dismissal for
failure to prosecute is a harsh remedy to be utilized only in extreme situations,” the
Second Circuit has “fashioned guiding rules that limit a trial court’s discretion in this
context.” Id. (citing Peart v. City of New York, 992 F.2d 458, 461 (2d Cir. 1993), and
Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)). These rules include
whether (1) the plaintiff’s failure to prosecute caused a delay of significant
duration; (2) plaintiff was given notice that further delay would result in dismissal;
(3) defendant was likely to be prejudiced by further delay; (4) the need to
alleviate court calendar congestion was carefully balanced against plaintiff’s right
to an opportunity for a day in court; and (5) the trial court adequately assessed
the efficacy of lesser sanctions.
Id. (citing cases).
“No one factor is dispositive,” and the record must be considered as a whole. Id. Here,
consideration of these five factors supports dismissal for failure to prosecute.
In particular, Plaintiff’s attorney, Ms. Koloko, advised the court in February 2015
that she had not heard from her client since 2014, and further attempts to contact
Plaintiff were futile. Defendants’ attorney, Joseph DeMarie (“Mr. DeMarie”), maintains
that when the instant action was commenced, Plaintiff, having been arrested and in
default of bail, was detained in a holding center where Plaintiff remained until his
release in February 2014. 2 DeMarie Affidavit ¶¶ 5-7. Upon such release, Plaintiff “has
effectively disappeared.” Id. ¶ 8. Since “disappearing,” Plaintiff’s counsel has indicated
on two occasions, including February 19, 2015, and April 15, 2015, that she has been
unable to contact, locate, or communicate with Plaintiff, that telephone calls to Plaintiff’s
last known telephone numbers resulted in notifications that the numbers have been
disconnected, and that attempts to reach Plaintiff at his last known address have also
been unsuccessful. Id. ¶ 9. Furthermore, the time in which to conduct discovery has
passed without Plaintiff seeking any discovery from Defendants. Id. ¶ 10. DeMarie
further states that given Plaintiff’s incarceration outside of Erie County, and history of
arrests and convictions, Defendants assessed Plaintiff’s likelihood of succeeding on the
merits of this action was so low that Defendants did not seek to depose Plaintiff. Id. ¶
11. DeMarie concludes that this matter can never be scheduled for trial because it is
unlikely Plaintiff will ever be located given that his whereabouts have been unknown for
more than one year. Id. ¶ 12. Plaintiff, not having responded in opposition to
Defendants’ motion, does not dispute any of Defendants’ assertions.
Based on Defendants’ undisputed assertions, the court finds the five factors
support Defendants’ motion to dismiss for failure to prosecute. In particular, Plaintiff’s
It is not clear whether Plaintiff was being held pursuant to the August 19, 2011 arrest on which the
instant action is predicated, or on some other charges, nor do Defendants identify the holding center in
which Plaintiff was being held.
failure to take any action in this case has caused a delay of significant duration,
specifically more than two years. Defendants’ motion placed Plaintiff, represented by
Ms. Koloko, on notice that further delay could result in dismissal. The continued delay
in prosecuting this action can only work to prejudice Defendants. The caseload in this
heavily congested court (tied at 18th of 94 districts based on weighed caseload per
judge), compared to Plaintiff’s right to an opportunity for a day in court on an action in
which Plaintiff appears to have lost all interest weighs in favor of dismissal. Finally,
there do not seem to be any lesser sanctions which would effectively gett the case
back on track in light of Ms. Koloko’s inability to locate her client.
All five factors thus weigh in favor of dismissing the action for failure to
Based on the foregoing, Defendants’ motion (Doc. No. 25), is GRANTED. The
Clerk of the Court is directed to close the file.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
March 30, 2016
Buffalo, New York
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