Farion v. Ezzo

Background

Anna M. Farion filed the complaint on June 12, 2019, against Brian R. Ezzo and Angelo Ezzo. The docket did not contain a certificate of service, and no defendant appeared. The court held an initial pretrial conference on August 25, 2020, but no party attended. It then rescheduled the conference for September 17, 2020, and warned that the case would be dismissed if Farion did not appear. Farion did not attend the rescheduled conference.

Legal standard

Federal Rule of Civil Procedure 41 allows a court to dismiss an action on its own for failure to prosecute or failure to follow a court order. The court explained that, in this circuit, it must consider whether the plaintiff's failure caused a significant delay, whether the plaintiff received notice that further delay could lead to dismissal, whether further delay would likely prejudice the defendant, whether the court balanced its calendar needs against the plaintiff's opportunity to have the case heard, and whether lesser sanctions would be effective.

Application

The court found dismissal appropriate. It stated that Farion appeared not to have served the defendants within the 90 days required by Federal Rule of Civil Procedure 4(m), and that she had not prosecuted the case for more than 14 months. She had received specific notice that failing to attend the September 17 conference would result in dismissal. Although the record did not specifically show that delay had prejudiced the defendants, the court stated that prejudice from unreasonable delay may be presumed. The court also concluded that lesser sanctions would be futile because Farion had already been given an opportunity to proceed and had failed to attend court-ordered conferences.

Disposition

Judge Lewis J. Liman dismissed the case for failure to prosecute and directed the Clerk of Court to close it. The opinion does not state whether the dismissal was with or without prejudice, and it does not reach the merits of Farion's claims.