McGee v. Trident Financial Network, Inc., et al

Filing 11

-CLERK TO FOLLOW UP---DECISION AND ORDER dismissing the case for failure to prosecute, failure to comply with the court's order to show cause, and failure to comply with the Federal and Local Rules of Civil Procedure. Signed by Hon. John T. Curtin on 11/12/2014. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MICHAEL McGEE,
Plaintiff,
-vs-

13-CV-434-JTC

TRIDENT FINANCIAL NETWORK, INC.,
et al.,
Defendants.

By order entered September 25, 2014 (Item 10), in accordance with Rule 41(b) of
the Local Rules of Civil Procedure for the Western District of New York, this court directed
plaintiff to show cause in writing within 30 days why this case should not be dismissed for
failure to prosecute. The order contained an explicit warning that failure to respond to the
order may result in dismissal of the action. No response has been filed, and cause for
further prosecution of the action has not otherwise been shown.
A district court has the inherent power to manage its own affairs “so as to achieve
the orderly and expeditious disposition of cases.” Lewis v. Rawson, 564 F.3d 569, 575 (2d
Cir. 2009) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962)). The Federal
Rules expressly empower a district court to exercise its discretion to dismiss an action “[i]f
the plaintiff fails to prosecute or to comply with these rules or a court order ….” Fed. R.
Civ. P. 41(b); see Lewis, 564 F.3d at 575.
Because dismissing an action for failure to prosecute is a “harsh remedy,” Minnette
v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993), a court contemplating dismissal under
Rule 41(b) should examine whether (1) the plaintiff's failure to prosecute caused a delay

of significant duration; (2) plaintiff received notice that further delay would result in
dismissal; (3) further delay would likely prejudice the defendant; (4) the need to alleviate
court calendar congestion outweighs plaintiff's right to an opportunity for a day in court; and
(5) lesser sanctions would be effective. See United States ex rel. Drake v. Norden Sys.,
Inc., 375 F.3d 248, 254 (2d Cir. 2004). No one factor is dispositive, and a court must
consider the record of the entire case as a whole. Id. Further, a court may find dismissal
warranted due to a “pattern of dilatory tactics” or “an action lying dormant with no
significant activity to move it.” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir.
1982).
All five factors weigh in favor of dismissal in this case. First, having taken no action
in this case since filing a request for Clerk’s entry of default on October 8, 2013 (Item 8),
plaintiff has delayed the prosecution of this case for more than a year. Second, the court
expressly warned plaintiff of the likelihood of dismissal of the action if plaintiff failed to
respond to the court’s order to show cause. Third, even though defendant has not
responded to the complaint, prejudice resulting from unreasonable delay in prosecution
may be presumed. See, e.g., Shannon v. Gen. Elec. Co., 186 F.3d 186, 195 (2d Cir.
1999). Fourth, considering the length of time this action has remained virtually dormant
on the court's docket, and in the absence of any indication from plaintiff or his counsel that
he will move the action forward in the future, the court finds plaintiff's right to an opportunity
to present his claim to be outweighed by the need to alleviate the court’s calendar
congestion. Finally, considering this longstanding pattern of inaction, no lesser sanction
than dismissal would be effective.

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Accordingly, all of the relevant factors support dismissal pursuant to Rule 41(b), and
the case is hereby dismissed for failure to prosecute, failure to comply with the court’s
order to show cause, and failure to comply with the Federal and Local Rules of Civil
Procedure.

So ordered.

\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
Dated:

November 12 , 2014

p:\pending\2013\13-434.r41(b).nov12.2014

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