Gonzalez v. H.K. Second Ave Restaurant Inc.

Background

The plaintiffs filed the complaint on June 4, 2020. The defendants were served but did not respond. After the plaintiffs took no action to prosecute the case, the court dismissed the action on October 26, 2020, without prejudice to reopening it.

The plaintiffs later moved to reopen the case. The court granted that motion, and the Clerk of Court issued certificates of default for all defendants on November 30, 2020. A certificate of default records that a defendant failed to respond, but it does not itself grant judgment to the plaintiff. The plaintiffs then took no further action to prosecute the case, including filing a motion for default judgment. The opinion does not state what claims were asserted in the complaint.

Ruling

Judge Mary Kay Vyskocil ordered that the action be discontinued for failure to prosecute, without costs to any party and without prejudice to restoring the action to the court’s calendar if the plaintiffs applied to restore it by May 7, 2021. Any application had to explain the plaintiffs’ delay of more than four months in filing a motion for default judgment and include a proposed schedule for filing that motion. The order further stated that if no application was made by May 7, 2021, the dismissal would be with prejudice. Because the order resolved the case for failure to prosecute without addressing the underlying claims, this is a procedural order.