Roberts v. City of New York
- Paul Gardephe
- 1:19-cv-07405
- U.S. District Court · Southern District of New York
- 4
In Roberts v. City of New York, Judge Gardephe dismissed the case without prejudice after Roberts failed to serve the complaint or prosecute it.
Darren Roberts’s case against the City of New York was dismissed without prejudice, and the clerk was directed to close the case. The order did not resolve the merits of the underlying claims.
What happened
In Roberts v. City of New York, Darren Roberts sued the City of New York, but he did not serve the complaint or take steps to move the case forward. His lawyer explained that the lawyer’s office was being closed as the lawyer changed fields.
A magistrate judge gave Roberts additional time to serve the City and warned that the case could be dismissed if he did not do so by April 30, 2021. Roberts still did not serve the complaint or file proof of service, and neither side objected to the magistrate judge’s recommendation to dismiss the case.
Judge Paul G. Gardephe adopted the recommendation and dismissed the complaint without prejudice for failure to serve the City and failure to prosecute. The clerk was directed to close the case.
The detailed version
- Roberts v. City of New York · No. 1:19-cv-07405
- Paul Gardephe
- May 29, 2021
Background
Darren Roberts filed the complaint on August 8, 2019. The case was referred to Magistrate Judge Debra C. Freeman for general pretrial supervision. More than a year after the complaint was filed, Roberts had not served the City of New York and had not taken steps to prosecute the case.
In February 2021, Judge Freeman ordered Roberts to explain why the case should not be dismissed under Federal Rule of Civil Procedure 4(m), which addresses timely service of a complaint, and Rule 41(b), which permits dismissal for failure to prosecute. The order stated that Roberts appeared to have taken no steps to prosecute the case and that the court had been unable to obtain a response from his lawyer’s office.
Roberts’s lawyer responded that the office had not followed or prosecuted the matter because the lawyer was transitioning to a different field of law. The lawyer requested additional time to serve the City and to seek permission to withdraw while helping Roberts find new counsel. Judge Freeman granted a final extension until April 30, 2021, and warned that she would recommend dismissal if service was not completed by then. Roberts did not serve the City by that date and still had not filed proof of service when Judge Freeman issued her report and recommendation on May 13, 2021.
Court’s review
Judge Freeman recommended dismissing the complaint without prejudice for failure to prosecute. Although the report and recommendation warned that objections had to be filed within fourteen days, Roberts filed no objections. Judge Gardephe explained that the lack of objections waived further judicial review, but he nevertheless reviewed the recommendation for clear error and found none.
The court stated that Rules 4(m) and 41(b) authorize dismissal when a plaintiff fails to serve the defendant and fails to prosecute the case. The court concluded that Roberts had not served the complaint, had not filed proof of service, and had not prosecuted the case despite receiving a final extension and warning.
Disposition
Judge Paul G. Gardephe adopted the report and recommendation in its entirety and dismissed the complaint without prejudice. The clerk was directed to close the case. The order did not decide the merits of Roberts’s underlying claims.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.