Adigun v. Internal Revenue Service

Background

Emmanuel A. Adigun, who was representing himself, filed an action seeking an order preventing federal agencies from diverting funds due to him to a student-loan guaranty agency. The defendants named in the caption included the Internal Revenue Service, the Social Security Administration, ECMC, Premier Credit of North America, Wachovia Educational Services, and NYS Higher Education Services (NYSHES).

The court directed Adigun to serve a summons and complaint on each defendant within 90 days after the summonses were issued. The court warned that failing to complete service could result in dismissal for failure to prosecute under Rules 4 and 41 of the Federal Rules of Civil Procedure. The Clerk issued a summons for NYSHES on May 15, 2020.

NYSHES moved to dismiss the claim against it for failure to prosecute, stating that Adigun had not served it. The court directed Adigun to respond to the motion by December 10, 2020, and warned that failing to respond could result in dismissal under Rule 41(b). The opinion states that Adigun had not responded.

Legal standard

Rule 41(b) permits a court to dismiss an action when a plaintiff fails to prosecute the case or comply with the federal rules or a court order. The court considered five factors: the length of the plaintiff’s failure or noncompliance; whether the plaintiff was warned that dismissal could result; whether the delay likely prejudiced the defendant; the court’s need to manage its calendar weighed against the plaintiff’s opportunity to be heard; and whether a less severe sanction would be effective.

Court’s reasoning

The court found that all five factors supported dismissal. It concluded that Adigun had failed to participate in prosecuting the claim against NYSHES for at least 11 months and had violated two court orders: the order requiring service by August 13, 2020, and the order requiring a response to NYSHES’s motion. The court also found that Adigun had received repeated warnings that dismissal could result, that prejudice could be presumed from the unexplained delay, and that dismissal without prejudice appropriately balanced the court’s need to manage its calendar with the interests of a self-represented litigant. It further concluded that a lesser sanction would likely be ineffective.

Disposition

The court granted NYSHES’s motion to dismiss the case against it for failure to prosecute. The court’s reasoning describes the dismissal as without prejudice. The Clerk was directed to mail a copy of the order to Adigun.