Henry v. Gershan
- Vernon Broderick
- 1:20-cv-06133
- U.S. District Court · Southern District of New York
- 3
In Henry v. Gershan, Judge Broderick dismissed the case without prejudice because Henry failed to prosecute and follow court orders.
Seana Henry’s action was dismissed without prejudice, and the Clerk of Court was directed to close the case. The ruling ended the federal case without deciding the removal issue or the underlying claims.
What happened
In Henry v. Gershan, Defendants James Kim and Dream NJ, Inc. removed Henry’s state-court case to federal court, claiming that the parties were citizens of different states and that more than $75,000 was at stake.
The court ordered the parties to provide information about their domiciles so it could decide whether federal jurisdiction existed. The defendants submitted affidavits, but Seana Henry repeatedly failed to submit the required affidavit, did not appear, and showed no continuing intent to pursue the case.
Judge Vernon S. Broderick dismissed the action without prejudice for failure to prosecute and failure to comply with court orders under Federal Rule of Civil Procedure 41(b). The Clerk of Court was directed to close the case.
The detailed version
- Henry v. Gershan · No. 1:20-cv-06133
- Vernon Broderick
- Feb. 11, 2021
Background
Seana Henry began the action in New York State Supreme Court, Bronx County, by filing a summons and verified complaint on February 12, 2020. On August 5, 2020, Defendants James Kim and Dream NJ, Inc. removed the case to the Southern District of New York based on diversity jurisdiction under 28 U.S.C. § 1332(a). They asserted that the parties were completely diverse and that the amount in controversy exceeded $75,000.
Henry filed a letter asking the court to deny removal for lack of complete diversity, but she did not file an appearance. The court then ordered the parties to submit information establishing their domiciles at the relevant times. Kim and Dream timely complied. After a later order directed Defendant Steven Gershan to provide similar information, he also timely complied.
Failure to Comply
Henry did not submit the required affidavit after the court’s initial deadline. The court issued additional orders giving her more time to provide the information. In its February 1, 2021 order, the court stated that Henry’s repeated failure to submit the affidavit was the only remaining item preventing it from determining whether removal was proper. The court warned that it might dismiss the case under Federal Rule of Civil Procedure 41(b) if she failed to submit the affidavit or otherwise show that she intended to pursue the litigation.
Henry did not comply with the final deadline. The court found that she had not filed the affidavit, had not appeared, and had shown no intent to prosecute the action apart from her earlier letter. The court also found that she had repeatedly failed to comply with its orders.
Ruling
The court dismissed the action without prejudice for failure to prosecute and failure to comply with court orders under Rule 41(b). Rule 41(b) permits a court to dismiss a case when a plaintiff does not pursue it or does not follow court orders; the court explained that it may do so on its own. The Clerk of Court was directed to close the case.
The opinion did not decide whether complete diversity existed, whether removal was proper, or the merits of Henry’s underlying claims.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.