No announcement yet.

Failure to Prosecute: W.D.N.Y.

  • Filter
  • Time
  • Show
Clear All
new posts

  • Failure to Prosecute: W.D.N.Y.

    In a relatively brief opinion from the Western District of New York, the court discusses how to proceed when the Plaintiff fails to adequately pursue an action that has progressed. By way of background, after exhausting administrative remedies and filing suit, the Plaintiff died and her attorney had a difficult time locating an estate administrator. Ultimately, the attorney failed to file a suggestion of death among other missed proceedings.

    It “is well established that a district court has the power to dismiss an action for failure to prosecute.” Nita v. Conn. Dep’t of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994). In dismissing a case under Rule 41(b), trial courts must consider five factors: 1) the duration of the plaintiff’s failure or non-compliance; 2) whether the plaintiff had notice that such conduct would result in dismissal; 3) whether prejudice to the defendants is likely to result; 4) whether the court balanced its interest in managing its docket against the plaintiff’s interest in receiving a fair chance to be heard; and 5) whether the court adequately considered the efficacy of a sanction less drastic than dismissal. Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000). No one factor is dispositive. Nita, 16 F.3d at 485.
    The above-referenced factors weigh in favor of Defendants. Plaintiff’s attorney failed to attend a status conference and only contacted Defendants after they moved to dismiss the case. Furthermore, he did not contest any of the arguments in Defendants’ Motion to Dismiss. As mentioned above, Plaintiff’s attorney has not tried to establish contact with potential substitute parties for over 238 days. The Court recognizes that Plaintiff’s death placed her attorney in a difficult position and understands if Plaintiff’s attorney believed he lacked the authority to make certain decisions in this litigation on her behalf. Nonetheless, this does not change the fact that “no sanction less than dismissal will alleviate the prejudice to defendants of continuing to keep this action open and the Court needs to avoid calendar congestion and ensure an orderly and expeditious disposition of cases.” Keating v. Leviton Mfg. Co., Inc., No. 06-CV-6027 (JFB) (ARL), 2009 WL 234654, at *2 (S.D.N.Y. Jan. 30, 2009). Therefore, dismissal for failure to prosecute under Rule 41(b) is warranted.
    As a result, the court granted the Defendant's motion to dismiss. The opinion is attached below.
    Attached Files