Mikolaenko v. New York University
- Analisa Torres
- 1:16-cv-00413
- U.S. District Court · Southern District of New York
- 3
In Mikolaenko v. New York University, Judge Torres dismissed the case with prejudice for failure to prosecute and denied defendants’ summary-judgment motion as moot.
Dr. Irina Mikolaenko’s employment-discrimination case was dismissed with prejudice, while the defendants’ summary-judgment motion was denied as moot. The defendants received dismissal of the action based on Mikolaenko’s failure to prosecute.
What happened
Dr. Irina Mikolaenko brought federal and state employment-discrimination claims against New York University, NYU School of Medicine, NYU Langone Medical Center, and Dr. David Zagzag. After her lawyer withdrew, she did not appear through a new lawyer or on her own, and she did not respond to the defendants’ filings.
The defendants asked the court to dismiss the case because Mikolaenko failed to pursue it and failed to follow court orders. The court considered the length of her absence, the warnings she received, likely harm to the defendants, the effect on the court’s work, and whether a lesser penalty would be enough. It found that all five factors supported dismissal.
Judge Analisa Torres granted the defendants’ motion to dismiss for failure to prosecute and determined that dismissal with prejudice was warranted. She denied the defendants’ separate motion for summary judgment as moot and directed the Clerk to close the case.
The detailed version
- Mikolaenko v. New York University · No. 1:16-cv-00413
- Analisa Torres
- Sept. 29, 2020
Background
Dr. Irina Mikolaenko filed the action on January 19, 2016, asserting federal and state employment-discrimination claims against New York University, NYU School of Medicine, NYU Langone Medical Center, and Dr. David Zagzag, individually. The case went through discovery, and the defendants filed a motion for summary judgment on October 21, 2019.
In November 2019, Mikolaenko’s counsel asked to withdraw, stating that Mikolaenko had not paid legal fees and had avoided counsel’s attempts to contact her for more than eight months. On March 9, 2020, the Court granted the withdrawal request. The Court told Mikolaenko that she could retain new counsel or continue without a lawyer, and ordered her to notify the Court of her choice by May 8, 2020. The Court warned that failing to appear could lead it to treat the summary-judgment motion as unopposed and consider dismissal for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.
Mikolaenko did not appear by the deadline. The defendants then sought permission to move for dismissal. After the Court set deadlines for that motion and Mikolaenko’s response, the defendants filed a Rule 41(b) motion to dismiss. Mikolaenko did not oppose it.
Legal standard
Rule 41(b) permits dismissal when a plaintiff fails to prosecute an action or comply with the Federal Rules of Civil Procedure or a court order. The Court applied five factors: (1) the duration of the plaintiff’s failures; (2) whether the plaintiff was warned that the conduct could result in dismissal; (3) whether the defendants were likely to suffer prejudice; (4) the Court’s interest in managing its docket compared with the plaintiff’s opportunity to be heard; and (5) whether a sanction less severe than dismissal would be effective. No single factor controlled.
Court’s analysis
The Court found that Mikolaenko had failed to participate for at least 18 months: approximately eight months before counsel sought to withdraw and approximately ten months afterward. It also found that she had disregarded multiple orders, including the order requiring her to appear and the order requiring her to respond to the Rule 41(b) motion.
The Court concluded that Mikolaenko had notice because the withdrawal order warned that failure to appear could result in dismissal, and the defendants’ motion repeated that warning. The Court further found that the defendants’ lengthy delay created presumed prejudice and postponed resolution of their summary-judgment motion after years of discovery and motion practice. Her noncompliance also interfered with the Court’s management of the case by leaving the summary-judgment motion without opposing briefing and causing further delay.
The Court considered lesser sanctions, including dismissal without prejudice, but rejected them because it viewed Mikolaenko’s failure to participate as egregious. It concluded that dismissal with prejudice was warranted.
Disposition
Judge Analisa Torres granted the defendants’ motion to dismiss the case for failure to prosecute. The Court’s opinion states that dismissal with prejudice was warranted. It denied the defendants’ motion for summary judgment as moot, directed the Clerk to terminate the motions at ECF Nos. 64 and 83, and ordered the case closed.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.