Rivera v. Stone Manor 101
- Kenneth Karas
- 7:17-cv-05636
- U.S. District Court · Southern District of New York
- 4
Rivera v. Stone Manor 101: Judge Karas dismissed the case without prejudice after Rivera failed to prosecute or respond to court orders.
Jose Rivera’s case was dismissed without prejudice for failure to prosecute; the Clerk of Court was directed to close the case. The opinion does not state any separate ruling on the defendants’ positions.
What happened
In Rivera v. Stone Manor 101, Rivera’s lawyer withdrew after being unable to contact him at his last known addresses or by phone. The court later ordered Rivera to explain why the case should not be dismissed for failure to prosecute.
Rivera did not respond to that order or otherwise communicate with the court. The court said he had been warned that failing to respond could lead to dismissal, and that the order had been mailed to his last known address with help from his former lawyer.
Judge Kenneth M. Karas dismissed Rivera’s case without prejudice for failure to prosecute and directed the Clerk of Court to close the case.
The detailed version
- Rivera v. Stone Manor 101 · No. 7:17-cv-05636
- Kenneth Karas
- June 25, 2020
Background
Jordan El-Hag, who represented Jose Rivera, moved to withdraw as counsel on September 4, 2019. El-Hag said he had been unable to contact Rivera since December 19, 2018. El-Hag and a former employee visited Rivera’s two last known addresses, where Rivera no longer lived, and also tried to reach him by phone and through “Hispanic worker organizations.”
The court granted the motion to withdraw and directed El-Hag to send the order to Rivera’s last known address. Rivera was told to inform the court by October 15, 2019, whether he intended to retain new counsel or represent himself, and was warned that failure to do so could result in dismissal.
On April 1, 2020, the court ordered Rivera to show cause by May 1, 2020, why the case should not be dismissed for failure to prosecute. The court coordinated with El-Hag to mail that order to Rivera’s last known address. Rivera did not respond to the order or otherwise communicate with the court.
Legal Standard
Under Federal Rule of Civil Procedure 41(b), a court may dismiss a case when a plaintiff fails to prosecute the case or comply with court rules or a court order. The opinion states that a court may take this action on its own, without a defendant’s motion. Because dismissal for failure to prosecute is a harsh remedy, the court considered the duration of Rivera’s failures, whether he had notice that further delay could result in dismissal, likely prejudice to the defendants, the balance between court efficiency and Rivera’s opportunity to be heard, and whether lesser sanctions would be effective.
Ruling
The court concluded that these factors favored dismissal. Rivera had not communicated with the court since before El-Hag filed the withdrawal motion, did not respond after being told to notify the court about counsel, and did not respond to the order to show cause even though it warned that the case could be dismissed without further notice.
Judge Kenneth M. Karas dismissed the action without prejudice for failure to prosecute. The court directed the Clerk of Court to close the case.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.