Weng v. Does 1-35
- James Oetken
- 1:22-cv-07082
- U.S. District Court · Southern District of New York
- 5
In Weng v. Does 1-35, Judge Oetken denied Danna Belle’s motion to dismiss for failure to prosecute because Weng’s conduct was not extreme.
The ruling directly affects Weijie Weng and The Danna Belle Store. Danna Belle’s motion to dismiss all claims against it for failure to prosecute was denied, so this order did not dismiss Weng’s claims against Danna Belle on that ground. The order leaves open a possible motion based on insufficient service.
What happened
In Weng v. Does 1-35, Weijie Weng, who is representing himself, sued more than sixty defendants in a copyright case. The Danna Belle Store asked the court to dismiss all claims against it because Weng allegedly had not moved the case forward and had not followed a court order about serving defendants.
The court found that Weng had continued participating by filing more than eighty motions, letters, and briefs. It also found that he had not been warned that failing to move the case forward could lead to dismissal, and that Danna Belle identified little prejudice caused by any further delay. Weng had timely filed a response to the court’s service order, even though the court did not decide whether his explanation showed good cause for inadequate service.
Judge James Oetken denied Danna Belle’s motion to dismiss for failure to prosecute. The denial was without prejudice to Danna Belle filing a separate motion based on insufficient service.
The detailed version
- Weng v. Does 1-35 · No. 1:22-cv-07082
- James Oetken
- Feb. 18, 2025
Background
Weijie Weng, proceeding without a lawyer, brought a copyright action against more than sixty defendants, including The Danna Belle Store ("Danna Belle"). Danna Belle moved under Federal Rule of Civil Procedure 41(b), which allows dismissal when a plaintiff fails to prosecute a case or comply with a court order. Danna Belle sought dismissal of all claims against it based on Weng’s alleged failure to move the case forward and his alleged failure to comply with an order concerning service of the summons and complaint.
Failure to Move the Case Forward
The court applied five factors used to decide whether dismissal for failure to prosecute is warranted: the length of the delay, whether the plaintiff received notice that further delay could lead to dismissal, the likelihood of prejudice to the defendant, the effect on court congestion compared with the plaintiff’s right to be heard, and whether lesser sanctions could be effective.
The court concluded that these factors did not support dismissal. Weng had continuously participated in the case and had filed more than eighty motions, letters, and briefs from December 2022 through the date of the opinion. Danna Belle identified no evidence that Weng had been warned that failing to move the case forward could result in dismissal. The prejudice Danna Belle identified—being denied access to its Amazon financial account for a year—was past prejudice associated with a terminated temporary restraining order, not prejudice caused by further delay. The court also found no compelling effect on court congestion that outweighed Weng’s right to have an opportunity to be heard, and it found that other ways remained available to move the case forward without dismissal.
Compliance with the Service Order
Danna Belle also argued that Weng failed to comply with the court’s November 16, 2023 order. That order required Weng to explain in writing why he had not served the defendants within ninety days or, if service had occurred, to state when and how it was made. It warned that the case would be dismissed if Weng did not file a written communication by December 7, 2023 showing good cause.
Weng filed a response on December 5, 2023. The court did not decide whether his explanation established good cause for insufficient service, but it found that he had timely purported to comply with the order. The court further held that even a deficient response would not have been so serious as to justify dismissal under Rule 41(b).
Disposition
The court denied Danna Belle’s motion to dismiss for failure to prosecute. The denial was without prejudice to Danna Belle filing a motion to dismiss based on insufficient service. The clerk was directed to close the motion at docket number 146.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.