Graham v. Take-Two Interactive Software, Inc.
- George Daniels
- 1:19-cv-02183
- U.S. District Court · Southern District of New York
- 4
In Graham v. Take-Two, Judge Daniels dismissed Graham’s complaint without prejudice because he failed to prosecute the case.
Shawn Graham’s remaining trademark-infringement and unfair-competition claims were dismissed without prejudice. The defendants obtained that dismissal, while Graham’s previously dismissed unjust-enrichment claim was not reinstated.
What happened
Shawn Graham sued Take-Two Interactive Software, Inc., 2K Sports, Inc., and 2K Games, Inc., claiming that a video game used his registered marks without permission. The case also included an unjust-enrichment claim, which the court had previously dismissed.
The defendants asked the court to dismiss Graham’s remaining claims because he did not actively pursue the case. Graham missed several court conferences, did not respond to discovery requests, failed to provide required disclosures, and did not follow an order requiring him to respond to the defendants’ concerns.
Judge Daniels adopted Magistrate Judge Aaron’s recommendation and granted the defendants’ motion to the extent that Graham’s complaint was dismissed without prejudice for failure to prosecute. The court found that Graham had been warned, the defendants were likely prejudiced by further delay, and lesser sanctions would not be effective.
The detailed version
- Graham v. Take-Two Interactive Software, Inc. · No. 1:19-cv-02183
- George Daniels
- June 22, 2020
Background
Shawn Graham, who was representing himself, sued Take-Two Interactive Software, Inc., 2K Sports, Inc., and 2K Games, Inc. He asserted claims for trademark infringement, unfair competition, and unjust enrichment. Graham alleged that the defendants infringed his registered marks, “RWTW” and “ROLL WITH THE WINNER’S,” by creating and selling a video game whose cover art, content, and packaging included the acronym “RWTW.” The court had previously dismissed Graham’s unjust-enrichment claim, leaving the other claims at issue in this order.
The defendants moved under Federal Rule of Civil Procedure 41(b) to dismiss the remaining claims for failure to prosecute. That rule permits dismissal when a plaintiff fails to pursue the case or comply with a court order.
Report and Recommendation
Magistrate Judge Stewart D. Aaron recommended that the motion be granted to the extent that Graham’s complaint be dismissed without prejudice. No party objected to the recommendation. Judge Daniels therefore reviewed it for clear error and found none.
Failure to Prosecute
The court applied five factors used in deciding whether to dismiss for failure to prosecute:
- Length of the failure: Graham failed to attend multiple telephone conferences in May and July 2019, failed to respond to discovery requests for three months, and failed to respond to the defendants’ January 2, 2020 letter about his lack of participation, despite being ordered to do so.
- Notice: Graham had been repeatedly warned that failing to comply with court orders could lead to dismissal. A September 4, 2019 order specifically warned that sanctions could include a recommendation that the case be dismissed.
- Prejudice to the defendants: The court found that the defendants had already been prejudiced and would continue to be prejudiced because Graham’s inaction prevented them from preparing for trial.
- Balancing the court’s docket and Graham’s opportunity to be heard: Graham did not participate in discovery, provide required disclosures, respond to discovery requests, or respond to the defendants’ efforts concerning pretrial proceedings. The court found that its interest in managing the docket outweighed Graham’s interest in continuing the case.
- Less severe sanctions: The court found that sanctions short of dismissal would be ineffective because the defendants had made multiple attempts to contact Graham without receiving a response.
The court also concluded that dismissal without prejudice was appropriate because Graham was representing himself and his delays had not directly affected the trial calendar.
Disposition
Judge Daniels adopted Magistrate Judge Aaron’s Report and Recommendation in full. The defendants’ motion to dismiss for failure to prosecute was granted to the extent that Graham’s complaint was dismissed without prejudice. The Clerk of Court was directed to close the motion and mail Graham a copy of the decision and order.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.