Alma-Rasnick v. Banco Popular de Puerto Rico et al

Filing 46

ORDER granting in part 44 Motion to Dismiss. Judgment shall be entered dismissing this case without prejudice. Signed by Judge Jay A Garcia-Gregory on 5/30/2012. (RJC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

ALMA-RASNICK,
Plaintiff
v.
CIVIL NO. 11-1315 (JAG)
BANCO POPULAR DE PUERTO RICO,
et al,
Defendants.

MEMORANDUM AND ORDER
On

April

5

2011,

plaintiff

filed

this

diversity

action

alleging that defendants had identified the wrong residence in a
foreclosure
house,

proceeding,

furniture,

and

resulting
belongings.

in

damages

Plaintiff

to

plaintiff’s

sought

damages

pursuant to Puerto Rico’s general tort statute, Article 1802 of
the Puerto Rico Civil Code, 31 L.P.R.A. § 5141. (Docket No. 1).
After defendants filed their answer, the case was referred to a
magistrate judge for an initial scheduling conference. However,
before the meeting could be held, plaintiff’s counsel filed a
motion

asserting

irreconcilable

differences

and

lack

of

communication with his client, and requesting leave to withdraw
as

plaintiff’s

legal

representation.

(Docket

No.

42).

The

magistrate judge granted the same, and gave plaintiff one month
to procure new representation. (Docket No. 43). Plaintiff did
not comply with this deadline.

CIVIL NO. 11-1315 (JAG)

2

Two months later, defendants moved to dismiss this case on
grounds of lack of prosecution by plaintiff. The Court gave
plaintiff a two-week extension to respond to defendants’ motion
and to explain his failure to comply with the Court’s deadline
regarding

his

legal

representation.

Again,

plaintiff

did

not

comply. Presently before the Court, then, is defendants’ motion
for involuntary dismissal pursuant to Fed. R. Civ. P. 41(b).
(Docket No. 44). For the reasons stated below, the Court GRANTS
defendants the dismissal of this case, albeit without prejudice.
Pursuant to Fed. R. Civ. P. 41(b), a court may dismiss a
plaintiff’s

complaint

for

lack

of

prosecution.

Unless

the

dismissal order entered by the Court says otherwise, a dismissal
under Rule 41(b) “operates as an adjudication on the merits.”
Id. However, dismissals under this rule are rarely granted. D.P.
Apparel Corp. v. Roadway Exp., Inc., 736 F.2d 1, 4 (1st Cir.
1984). And in this Circuit, “a case should not be dismissed with
prejudice except ‘when a plaintiff's misconduct is particularly
egregious or extreme.’” Benitez-Garcia v. Gonzalez-Vega, 468 F.3d
1, 5 (1st Cir. 2006).
Dismissal here is proper. Plaintiff has failed, on more
than one occasion, to comply with Court orders. It has been
almost four months since plaintiff made his last filing with
this

Court.

Furthermore,

plaintiff

was

put

on

notice

that

further neglect of his case entailed the dismissal of his case.

CIVIL NO. 11-1315 (JAG)

3

(Docket No. 45); see Benitez-Garcia v. Gonzalez-Vega, 468 F.3d.
The Court received no response.
Nonetheless, defendants have not alleged, and the record
does

not

reflect,

that

plaintiff

has

engaged

in

egregious

misconduct. Nor have they alleged any substantial prejudice due
to

plaintiff’s

lack

of

prosecution.

Given

the

“strong

presumption in favor of deciding cases on the merits,” the Court
finds

that

dismissal

without

prejudice

is

the

better

option

here. Benitez-Garcia v. Gonzalez-Vega, 468 F.3d at 5.

IT IS SO ORDERED.
In San Juan, Puerto Rico, this 30th day of May, 2012.

S/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge