Lopez v. Foot Locker Stores, Inc.
- Paul Gardephe
- 1:19-cv-01271
- U.S. District Court · Southern District of New York
- 5
In Lopez v. Foot Locker, Judge Gardephe dismissed claims against six remaining defendants without prejudice because Lopez failed to prosecute.
Robert G. Lopez’s claims against Speak EZ, LLC, Nakazono-Saeki LLC, Shoptiques, Inc., Need Supply Company, LLC, and Adorn Fashions, Inc. were dismissed without prejudice; the case was closed.
What happened
In Lopez v. Foot Locker Stores, Inc., Robert G. Lopez brought trademark, unfair-competition, contract, and related claims concerning the trademarks “LOWER EAST SIDE” and “LES NYC.” He represented himself.
The court had already dismissed claims against several defendants through voluntary-dismissal agreements. Lopez did not seek default judgments against Speak EZ, LLC, Nakazono-Saeki LLC, or Shoptiques, Inc., did not prove service on Need Supply Company, LLC, and failed to keep the court informed of his current address.
Judge Paul G. Gardephe ruled that Lopez’s remaining claims were properly dismissed without prejudice for failure to prosecute. The court directed the clerk to close the case and terminate pending motions.
The detailed version
- Lopez v. Foot Locker Stores, Inc. · No. 1:19-cv-01271
- Paul Gardephe
- July 6, 2020
Background
Robert G. Lopez, representing himself, asserted trademark-infringement, unfair-competition, breach-of-contract, and related claims concerning his alleged ownership of the trademarks “LOWER EAST SIDE” and “LES NYC.” The court had dismissed his claims against Foot Locker Stores, Inc., Akamai Technologies, Inc., Hood Hat, Inc., Keen, Inc., L.L. Bean, Inc., Grand Cutters Barber Shop, Inc., Nordstrom, Inc., and CBS Sports, Inc. based on stipulations of voluntary dismissal.
The remaining defendants were Speak EZ, LLC, Nakazono-Saeki LLC, Shoptiques, Inc., Need Supply Company, LLC, and Adorn Fashions, Inc. The court had ordered Lopez to seek default judgments against Speak EZ, Nakazono-Saeki, and Shoptiques, which had been served but had not appeared. It also ordered him to serve Need Supply. Lopez did neither. The opinion separately notes that Adorn Fashions had filed for bankruptcy protection.
Failure to Prosecute
Federal Rule of Civil Procedure 41(b) allows a court to dismiss an action when a plaintiff fails to prosecute it. The court considered five factors: the length of the plaintiff’s failures, notice that further delay could lead to dismissal, likely prejudice to defendants, whether the court had balanced case-management concerns against the plaintiff’s opportunity to be heard, and whether a lesser sanction could work.
The court found that Lopez had not filed anything on the docket since July 24, 2019, had disobeyed the July and September 2019 orders, and had never updated his address. Court mail, including the September order, had been returned. Although Lopez did not receive the warning orders, the court attributed that failure to his failure to maintain a current address. The court presumed that continued delay would prejudice the defendants, found that it had repeatedly warned Lopez about dismissal, and concluded that no lesser sanction would be effective because other sanctions would likely not reach him.
Ruling
Judge Paul G. Gardephe concluded that Lopez’s claims against the remaining defendants were properly dismissed for failure to prosecute. The court dismissed without prejudice Lopez’s claims against Speak EZ, LLC, Nakazono-Saeki LLC, Shoptiques, Inc., Need Supply Company, LLC, and Adorn Fashions, Inc. It directed the clerk to terminate pending motions and close the case.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.