Mulkern v. Lowes Inc.
- Kenneth Karas
- 7:23-cv-03689
- U.S. District Court · Southern District of New York
- 5
In Mulkern v. Lowe’s Home Centers, LLC, Judge Karas dismissed the case for failure to prosecute, with the order stating without prejudice.
Kevin Mulkern’s case against Lowe’s Home Centers, LLC was closed because he did not file the required amended complaint or respond to the Court’s orders. The opinion does not decide the merits of his claims.
What happened
In Kevin Mulkern v. Lowe’s Home Centers, LLC, Kevin Mulkern, representing himself, alleged disability discrimination, retaliation, failure to accommodate, and a hostile work environment under federal and New York law, along with a workers’ compensation claim.
After the Court dismissed Lowe’s motion and gave Mulkern multiple deadlines to file an amended complaint or explain his failure to proceed, he did not meet those deadlines. The Court found that he had stopped meaningfully participating in the case, had received repeated warnings, and had not shown why the case should continue.
Judge Kenneth M. Karas dismissed the case for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. The opinion first says dismissal is with prejudice, but the final order says the case is dismissed without prejudice.
The detailed version
- Mulkern v. Lowes Inc. · No. 7:23-cv-03689
- Kenneth Karas
- Aug. 28, 2025
Background
Kevin Mulkern, proceeding without a lawyer, sued Lowe’s Home Centers, LLC. He alleged disability discrimination, retaliation, failure to accommodate, and a hostile work environment under the Americans with Disabilities Act and the New York State Human Rights Law. He also asserted a claim under the New York Workers’ Compensation Law.
The Court had granted Lowe’s motion to dismiss on March 3, 2025, while giving Mulkern 30 days to file an amended complaint. After granting Mulkern an extension, the Court ordered him to file the amended complaint by April 28, 2025, and warned that failing to do so could lead to dismissal. Mulkern did not file it.
The Court then ordered Mulkern to explain by May 27, 2025, why the case should not be dismissed for failure to prosecute, meaning failure to actively pursue the case. Mulkern did not respond. He later asked the Court to appoint a volunteer lawyer, but the Court denied that request without prejudice and again ordered him to file an amended complaint by August 8, 2025. Mulkern did not file one, and Lowe’s again asked the Court to dismiss the case.
Court’s Analysis
Federal Rule of Civil Procedure 41(b) allows a court to dismiss a case when a plaintiff fails to prosecute or fails to follow court rules or orders. The Court also explained that a district court has inherent authority to dismiss a case for failure to prosecute without waiting for a defendant’s motion.
The Court considered the relevant factors and found that dismissal was appropriate. It found that Mulkern had not meaningfully participated since opposing Lowe’s motion to dismiss in July 2024; that he had received multiple warnings that failing to comply could result in dismissal; and that prejudice to Lowe’s was presumed because the delay was lengthy and unexplained. The Court also considered the need to manage its docket, Mulkern’s opportunity to be heard, and whether a less severe sanction would be effective. The Court concluded that Mulkern appeared to have abandoned the case.
The Court stated that the dismissal was not based on the merits of Mulkern’s claims. In other words, this order did not decide whether the alleged discrimination, retaliation, accommodation, hostile-work-environment, or workers’ compensation claims were legally valid.
Disposition
The opinion’s discussion says that the action is dismissed with prejudice for failure to prosecute. However, the final ordering paragraph states: “the Action is dismissed without prejudice.” The Clerk was directed to close the case and mail Mulkern a copy of the order. The opinion therefore contains conflicting statements about whether the dismissal permits refiling.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.