Duncan v. Greenporter Land LLC

Background

Eugene Duncan filed the action on August 30, 2019, individually and on behalf of others similarly situated. He alleged that Greenporter Land, LLC’s website was inaccessible to blind and visually impaired consumers. The complaint asserted claims under the Americans with Disabilities Act, 42 U.S.C. § 12181, New York Executive Law § 296, and the New York City Administrative Code § 8-107, along with a claim for declaratory relief.

Greenporter’s response was due October 17, 2019, but Greenporter did not respond or appear. On February 19, 2020, the court ordered Duncan to file a motion for default judgment, meaning a request for judgment based on the defendant’s failure to respond. The court later gave Duncan additional time to decide whether to seek that judgment or amend the complaint to add a necessary party.

Duncan said he had identified a necessary party and intended to amend the complaint, but he did not do so during the court-ordered stay. After the court warned that failing to act could result in dismissal for failure to prosecute, Duncan filed an amended complaint on June 24, 2020—after the applicable deadline—and added ANVK NY Holdings LLC as a defendant. ANVK was served on July 9, 2020, but it did not respond or appear. Greenporter also remained absent.

Court’s Analysis

On September 25, 2020, the court ordered Duncan to file a motion for default judgment by October 26, 2020, expressly stating that there would be no further extensions and again warning that failure to file could result in dismissal. Duncan did not file the motion.

Federal Rule of Civil Procedure 41(b) permits dismissal when a plaintiff fails to prosecute an action or comply with a court order. The court considered the required factors, including the length of the noncompliance, whether Duncan had notice that dismissal was possible, likely prejudice from further delay, the court’s interest in managing its docket, Duncan’s opportunity to be heard, and whether a less severe sanction should be used.

The court found that Duncan had done little to move the case forward without court prompting. It noted the four-month period when he took no action after Greenporter’s response deadline, his failure to file the amended complaint by the deadline associated with the requested stay, his late filing of that complaint, and his failure to file the required default-judgment motion. The court also found that Duncan had been repeatedly warned about possible dismissal and had received multiple extensions.

Disposition

Judge Lewis J. Liman ordered that the action be dismissed for Duncan’s failure to prosecute under Rule 41(b). The court explained that dismissal with prejudice is the usual sanction for failure to prosecute, but it ordered dismissal without prejudice here. The court reasoned that the case had not substantially burdened its docket because it had not decided substantive motions, held hearings, conducted discovery, or scheduled a trial. It also found that the defendants had not appeared or complied with filing deadlines, so the court could not conclude that they would be prejudiced if the litigation continued. The Clerk of Court was directed to close the case.