O'Rourke v. Nirvana
- Paul Engelmayer
- 1:19-cv-04711
- U.S. District Court · Southern District of New York
- 3
In O’Rourke v. Nirvana, Judge Engelmayer dismissed the ADA case for failure to prosecute after O’Rourke ignored court orders.
Christopher O’Rourke’s disability-discrimination action against Nirvana was dismissed because he did not pursue the case or respond to court orders. Nirvana had not appeared in the litigation.
What happened
Christopher O’Rourke sued Nirvana under disability-rights laws, alleging that Nirvana’s premises discriminated against him because of his disability. O’Rourke was representing himself, and Nirvana never responded or appeared.
The court told O’Rourke how to seek a judgment because Nirvana had not participated, but he took no action. After he also failed to respond to an order requiring him to explain why the case should not be dismissed, Magistrate Judge Gabriel W. Gorenstein recommended dismissal for failure to prosecute.
Judge Paul A. Engelmayer reviewed the recommendation for clear error because no one objected, adopted it in full, and dismissed the action for failure to prosecute. The opinion also states that the failure to object waived appellate review.
The detailed version
- O'Rourke v. Nirvana · No. 1:19-cv-04711
- Paul Engelmayer
- May 5, 2020
Background
Christopher O’Rourke brought the action under the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. He alleged that Nirvana’s premises discriminated against him because of his disability. The opinion states that O’Rourke proceeded without a lawyer. Nirvana did not respond to the complaint or otherwise appear.
Failure to Prosecute
Magistrate Judge Gabriel W. Gorenstein notified O’Rourke that, if he intended to seek a default judgment, he had to obtain a certificate of default and file a motion by December 12, 2019. The notice warned that failure to act could lead to dismissal under Federal Rule of Civil Procedure 41(b), which permits dismissal when a plaintiff fails to prosecute an action. O’Rourke took no action.
On February 14, 2020, Judge Gorenstein issued an order requiring O’Rourke to explain by February 28 why the case should not be dismissed for failure to prosecute. The order again warned that failing to comply could itself result in dismissal. O’Rourke did not respond or contact the court.
Review of the Recommendation
Judge Gorenstein later recommended dismissal. Because no party objected, Judge Engelmayer reviewed the recommendation for clear error, meaning an obvious mistake on the face of the record. He found no such error and adopted the recommendation in its entirety.
Disposition
The court dismissed the action for failure to prosecute. The opinion also states that the parties’ failure to object to the report and recommendation waived appellate review.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.