Bottone v. Roche

Background

Robert Bottone was proceeding without a lawyer. On February 28, 2024, the court granted an unopposed motion by David Roche and Sivin, Miller & Roche LLP to dismiss Bottone’s amended complaint with prejudice. The court also noted that Bottone’s amended complaint had named Alexis El Sayed, Art Bar, and Erica Halverson, whom Bottone had previously dismissed from the action.

Because those three defendants had not been timely served, the court ordered Bottone to serve them and file proof of service by March 29, 2024, or explain why service had not been completed. The court also allowed Bottone to file a voluntary dismissal if he did not intend to pursue claims against them. Bottone took no action by the deadline.

On May 22, 2024, the court issued another order requiring Bottone to serve or dismiss El Sayed, Art Bar, and Halverson, or explain his failure to comply with the court’s orders and deadlines. The court warned that failure to comply could result in dismissal of the entire case for failure to prosecute.

Court’s reasoning

Federal Rule of Civil Procedure 41(b) permits dismissal when a plaintiff fails to prosecute a case or comply with court rules or a court order. The court explained that it also had authority to order this type of dismissal on its own, without a defendant asking for it.

The court considered five factors: the length of Bottone’s delay, whether he had notice that further delay could lead to dismissal, possible prejudice to the defendants, the court’s need to manage its docket while preserving Bottone’s opportunity to have his claims heard, and whether a lesser sanction could be effective.

The court found that Bottone had taken no action since filing the amended complaint on April 21, 2023, had not opposed the earlier dismissal motion, and had ignored two warnings that the case could be dismissed. Although the court considered Bottone’s status as a self-represented litigant, it stated that self-represented plaintiffs must comply with court orders and diligently prosecute their cases. The court also found that continued delay could prejudice the remaining defendants, that keeping the case open would burden the court’s docket, and that the record did not suggest a lesser sanction would resolve Bottone’s failure to cooperate.

The court additionally stated that dismissal was appropriate because Bottone had not timely served El Sayed, Art Bar, and Halverson.

Disposition

The court ordered that the action be dismissed with prejudice for failure to prosecute. It directed the Clerk of Court to mail a copy of the order to Bottone and close the case.