Gannon v. Hun Shing Corp.

Background

Stephen Gannon filed claims against Hun Shing Corp. and H Optics Optometry P.C., alleging violations of the Americans with Disabilities Act, the New York State Human Rights Law, the New York State Civil Rights Law, and the New York City Human Rights Law. Hun Shing and H Optics answered and filed cross-claims against each other. Gannon later agreed to dismiss his claims against H Optics with prejudice, but that agreement did not resolve his claims against Hun Shing or the parties’ cross-claims.

The remaining claims went inactive for almost two years. On March 31, 2025, the court ordered the parties to say whether they intended to pursue the remaining claims. Only Hun Shing responded. After further orders, the court dismissed Gannon’s claims against Hun Shing and H Optics’ cross-claim against Hun Shing without prejudice on May 5, 2025, under Federal Rule of Civil Procedure 41(b), which permits dismissal for failure to prosecute or failure to follow a court order. The court then ordered Hun Shing to state whether it wished to pursue its remaining cross-claim against H Optics.

Issue

The issue was whether Hun Shing’s remaining cross-claim against H Optics should be dismissed because Hun Shing failed to respond to the court’s orders.

Court’s reasoning

The court applied Rule 41(b) and considered factors including the length of the failure to comply, notice that dismissal could result, the opportunity to be heard, prejudice from further delay, the court’s need to manage its docket, and whether a less severe sanction would be appropriate. Hun Shing had not responded for six weeks and had been expressly warned that its cross-claim would be dismissed if it did not respond. The court found that Hun Shing had been given an opportunity to be heard and that its noncompliance warranted dismissal.

The court nevertheless determined that dismissal with prejudice would be unnecessarily harsh. It found that any prejudice to H Optics was minor and that the case had not substantially burdened the court’s docket because the court had not decided substantive motions, held hearings, overseen discovery, or scheduled a trial.

Disposition

The court dismissed Hun Shing’s cross-claim against H Optics without prejudice under Rule 41(b). It directed the Clerk to terminate all pending motions and close the case. The order did not decide the underlying allegations under the disability or civil-rights laws.