Gamble v. Cort
- Lorna Schofield
- 1:23-cv-06443
- U.S. District Court · Southern District of New York
- 4
In Gamble v. Cort, Magistrate Judge Parker recommended dismissing the action without prejudice because Kevin Gamble repeatedly failed to prosecute and follow court orders.
Kevin Gamble, who could have the action dismissed without prejudice if the recommendation is adopted; the defendants are affected by the proposed termination of the case after Gamble’s nonparticipation.
What happened
In Gamble v. Cort, Kevin Gamble proceeded without a lawyer and failed to appear at two case-management conferences. The defendants also reported that he had not responded to discovery requests or provided required releases.
The court had ordered Gamble to participate in discovery and warned him that continued failures could lead to sanctions or dismissal. The recommendation states that Gamble had not contacted the court and had not filed anything since November 17, 2023.
Magistrate Judge Parker recommended dismissing the action without prejudice for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. The recommendation was subject to objections filed with Judge Schofield within the stated deadlines; the opinion itself was not a final dismissal order.
The detailed version
- Gamble v. Cort · No. 1:23-cv-06443
- Lorna Schofield
- Sept. 18, 2024
Background
Kevin Gamble brought this action on July 1, 2023. The case was referred to United States Magistrate Judge Katharine H. Parker for general pretrial management. A case-management conference was scheduled for June 12, 2024, then postponed to August 5, 2024 at the parties’ request.
The defendants stated that Gamble had not provided requested discovery, and they moved to compel him to respond. Gamble did not appear at the August 5 conference. The defendants reported that he had not provided necessary releases or responded to their discovery requests.
After that conference, Magistrate Judge Parker scheduled another conference for September 16, 2024. The order warned that failing to appear at future conferences or continuing not to participate in discovery could result in sanctions or dismissal. The order was mailed to Gamble’s last known address. On August 7, 2024, the court granted the defendants’ motion to compel and directed Gamble to respond to interrogatories and document requests by September 6, 2024. That order again warned that noncompliance could lead to sanctions, including dismissal.
Gamble did not appear at the September 16 conference. The defendants reported that they had been unable to reach him since July 2024, that his telephone number appeared disconnected, and that he still had not participated in discovery as required by the order.
Legal standard
Rule 41(b) allows a court to dismiss an action when a plaintiff fails to prosecute the case or comply with a court order. The court considered the duration of the failures, whether Gamble had notice that further delays could lead to dismissal, possible prejudice to the defendants, the court’s need to manage its calendar while protecting Gamble’s opportunity to be heard, and whether lesser sanctions would be effective.
Recommendation
Magistrate Judge Parker concluded that dismissal under Rule 41(b) was appropriate. The recommendation relied on Gamble’s failure for approximately three months to comply with court orders, his absence from two status conferences, the warnings in three orders, his lack of contact with the court, and his failure to file any document since November 17, 2023.
The recommendation was that the action be dismissed without prejudice for failure to prosecute. Because the document is a report and recommendation addressed to Judge Schofield, it recommends that result rather than itself entering the final dismissal. Gamble was given seventeen days after service to file written objections. The defendants would have fourteen days after service of any objections to respond.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.