Smith v. Lioidice
- Philip Halpern
- 7:17-cv-07028
- U.S. District Court · Southern District of New York
- 2
In Smith v. Liodice, Judge Halpern ordered pro se plaintiff Steven L. Smith to explain why his case should not be dismissed with prejudice for failure to prosecute.
Steven L. Smith, who was representing himself, was required to explain by September 8, 2020, why his action should not be dismissed with prejudice. The defendants were affected by the warning that the case could be dismissed if Smith did not respond.
What happened
In Smith v. Liodice, Steven L. Smith sued Michelle Liodice and others. The court had previously dismissed his claims without prejudice and allowed him to file an amended complaint.
Smith filed documents that the court struck because they presented arguments instead of the required facts and claims. Although the court gave him another 30 days to file a second amended complaint, he had not done so by the time of this order.
Judge Philip M. Halpern ordered Smith to explain in writing by September 8, 2020, why the case should not be dismissed with prejudice for failure to prosecute. The order did not itself dismiss the case, but warned that failing to respond would result in dismissal for failure to prosecute.
The detailed version
- Smith v. Lioidice · No. 7:17-cv-07028
- Philip Halpern
- Aug. 5, 2020
Background
Steven L. Smith, representing himself and without paying the filing fee, started the action on September 14, 2017. On March 2, 2020, Judge Román granted the defendants’ motion to dismiss and dismissed Smith’s claims without prejudice. The court gave Smith permission to file an amended complaint by April 3, 2020, later extended to May 6, 2020. The court warned that the amended complaint had to replace the original complaint and include any facts or claims Smith wanted to preserve.
Smith filed an amended complaint on April 13, 2020, and a supplement on April 23, 2020. On May 5, 2020, the court struck both filings because they did not comply with the March 2 order. Specifically, the court found that the filings presented Smith’s arguments rather than facts and claims. The court gave Smith another 30 days to file a second amended complaint. The opinion states that Smith had not filed one as of August 5, 2020.
Order to Show Cause
Federal Rule of Civil Procedure 41(b) allows a district judge to dismiss a complaint for failure to prosecute, including without a party first requesting dismissal. The court explained that dismissal can help avoid court-calendar congestion and ensure that cases are handled in an orderly and timely manner.
Disposition
The court ordered Smith to show cause in writing by September 8, 2020, why the action should not be dismissed with prejudice for failure to prosecute under Rule 41(b). The court warned that failure to comply with the order would result in dismissal of the case for failure to prosecute. This order to show cause was not itself a dismissal.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.