Tomar Avraham MD Plastic Surgery LLC v. International Brotherhood of Trade…
Tomar Avraham MD Plastic Surgery LLC v. International Brotherhood of Trade Unions Health and Welfare Fund
- Lorna Schofield
- 1:25-cv-08233
- U.S. District Court · Southern District of New York
- 3
Tomer Avraham v. International Brotherhood Fund: Judge Schofield dismissed the action without prejudice because plaintiff missed petition deadlines and failed to prosecute.
Tomer Avraham MD Plastic Surgery LLC’s action was dismissed without prejudice. The defendant was not subjected to a ruling on the underlying petition because the court dismissed the case for failure to prosecute.
What happened
In Tomer Avraham MD Plastic Surgery LLC v. International Brotherhood of Trade Unions Health and Welfare Fund, the plaintiff was required to file a petition by November 5, 2025.
The plaintiff missed that deadline and then missed a second deadline after the court ordered it to file the petition by November 12. Nothing had been filed since November 10, and the case could not proceed without the plaintiff’s participation.
Judge Lorna G. Schofield dismissed the action without prejudice for failure to prosecute under Federal Rule of Civil Procedure 41(b). The court found that the missed deadlines and prior warning supported dismissal, while the possible prejudice to the defendant and the court’s docket-management interests were neutral.
The detailed version
- Tomar Avraham MD Plastic Surgery LLC v. International Brotherhood of Trade… · No. 1:25-cv-08233
- Lorna Schofield
- Nov. 18, 2025
Background
The court had set a briefing schedule for the petition governing the matter. The plaintiff’s petition was due November 5, 2025, but no petition was filed by that date. On November 10, 2025, the court ordered the plaintiff to file the petition by November 12, 2025, and warned that another missed deadline would result in dismissal for failure to prosecute. Nothing had been filed on the docket since November 10.
Court’s Analysis
Federal Rule of Civil Procedure 41(b) permits dismissal when a plaintiff fails to prosecute. The court considered five factors:
- Duration of noncompliance: This factor favored dismissal because the plaintiff missed two court-ordered deadlines, leaving the case dormant and unable to proceed without the plaintiff’s participation.
- Notice: This factor favored dismissal because the November 10 order clearly warned that missing the second deadline would result in dismissal.
- Prejudice to the defendant: This factor was neutral. The delay had not yet lasted several months, but continued failure to prosecute would create prejudice.
- Balancing docket management and the plaintiff’s opportunity to be heard: This factor was neutral. The court recognized that noncompliance interfered with docket management but found no compelling evidence of an extreme effect on court congestion.
- Less drastic sanctions: This factor favored dismissal because the plaintiff had already been warned that failure to participate could lead to dismissal but still did not respond.
Ruling
Judge Schofield dismissed the action without prejudice for failure to prosecute under Rule 41(b). The Clerk of Court was directed to close the case. The opinion did not decide the underlying petition or the parties’ substantive legal positions.
Effect of the Order
The court terminated this action without prejudice. The opinion does not state whether the plaintiff may take any particular further action or whether any filing deadline would apply to a new case.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.