Devito Verdi, Inc. v. Gardner-White Furniture Company, Inc.
- Vyskocil
- 1:20-cv-01046
- U.S. District Court · Southern District of New York
- 2
In Devito Verdi v. Gardner-White, Judge Vyskocil dismissed the case with prejudice because the plaintiff failed to prosecute after repeated court deadlines.
Devito Verdi, Inc.’s case was dismissed with prejudice because it did not prosecute the action or respond to the court’s order to show cause. Gardner-White Furniture Company, Inc. was the defendant and had not filed an answer.
What happened
Devito Verdi, Inc. v. Gardner-White Furniture Company, Inc. was removed to federal court, and the court extended the defendant’s deadline to respond while the parties reportedly tried to settle. The defendant did not file an answer or seek another extension, and the plaintiff did not request a default judgment.
The court later ordered the plaintiff to seek a default judgment and warned that inaction could lead to dismissal for failure to prosecute. After the plaintiff took no action for nearly five months, the court ordered it to explain why the case should not be dismissed. The plaintiff did not respond or take other steps to move the case forward.
Judge Mary Kay Vyskocil dismissed the case with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. The opinion does not decide the underlying dispute between the parties.
The detailed version
- Devito Verdi, Inc. v. Gardner-White Furniture Company, Inc. · No. 1:20-cv-01046
- Vyskocil
- Dec. 4, 2020
Background
The case was removed to the U.S. District Court for the Southern District of New York on February 6, 2020. The court extended Gardner-White Furniture Company, Inc.’s deadline to respond to Devito Verdi, Inc.’s complaint until March 20, 2020, based on the parties’ representation that they were trying to settle.
Two months after that deadline, Gardner-White had not filed an answer or requested another extension. Devito Verdi had not moved for a default judgment. On May 21, 2020, the court directed Devito Verdi to file any motion for default judgment by May 27 and warned that failing to do so could result in dismissal for failure to prosecute.
Nearly five months later, Devito Verdi had not filed the motion, requested an extension, or taken other action to prosecute the case. On October 20, 2020, the court ordered Devito Verdi to show cause—meaning to explain—why the case should not be dismissed under Rule 41(b) for failure to prosecute. Devito Verdi did not respond to that order or take other action.
Ruling
The court considered the factors required by Second Circuit case law for a Rule 41(b) dismissal and found dismissal warranted. It ordered that the case be dismissed, with prejudice, for failure to prosecute.
Effect
The order ended this case and barred refiling of the dismissed case because the dismissal was with prejudice. The opinion does not address the merits of the parties’ underlying dispute.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.