Solstein v. Gold
- Kenneth Karas
- 7:18-cv-09875
- U.S. District Court · Southern District of New York
- 4
In Solstein v. Gold, Judge Karas dismissed the action without prejudice for failure to prosecute after Solstein missed conferences and ignored a show-cause order.
Eric Solstein’s action was dismissed without prejudice and the case was closed. The opinion also records a settlement with Thomas Senator and states that Ernesto Mirra never appeared.
What happened
In Eric Solstein v. Larry Gold, et al., Eric Solstein sued Larry Gold, Erik Rhuleu, Thomas Senator, and Ernesto Mirra. Solstein later amended his complaint against Senator and Mirra, ending Gold and Rhuleu’s involvement, and settled with Senator. Mirra never appeared, and Solstein did not complete the paperwork for a default judgment against him.
After Solstein missed two status conferences, he told the court that he wanted to close the case but did not submit the promised letter. The court then ordered him to explain why the case should not be dismissed for failure to prosecute, meaning failure to move the case forward. Solstein did not respond.
Judge Karas dismissed the action without prejudice for failure to prosecute and directed the Clerk of Court to close the case. The court found that Solstein’s prolonged inaction, failure to follow the court’s order, and stated desire to end the litigation supported dismissal; it also considered his lack of a lawyer in choosing dismissal without prejudice.
The detailed version
- Solstein v. Gold · No. 7:18-cv-09875
- Kenneth Karas
- Mar. 30, 2022
Background
Eric Solstein filed the action against Larry Gold, Erik Rhuleu, Thomas Senator, and Ernesto Mirra. Solstein later filed an amended complaint against Senator and Mirra, which ended Gold and Rhuleu’s involvement as defendants. Solstein entered into a settlement with Senator on June 21, 2021. Mirra did not appear in the case.
Solstein filed papers seeking a default judgment, but the filings were deficient because he had not obtained a clerk’s certificate of default. Although he later requested that certificate, none had been issued. After Mirra failed to attend a status conference, Solstein did not file the remaining default-judgment papers. Instead, his later efforts concerned a subpoena to the Sullivan County Attorney’s Office, a non-party. The court granted that office’s motion to quash the subpoena.
Failure to Prosecute
Solstein then missed two status conferences. After the second missed conference, he told the court by telephone that he wanted to close the case and would send a letter confirming that decision. He did not send the letter. The court ordered him to show cause by March 30, 2022, explaining why the case should not be dismissed for failure to prosecute. Solstein did not respond.
Federal Rule of Civil Procedure 41(b) allows dismissal when a plaintiff fails to prosecute a case or comply with court rules or an order. The court explained that a district court may also dismiss for failure to prosecute on its own initiative. It considered the relevant factors, including the length of Solstein’s inaction, the warning that the case could be dismissed, possible prejudice from further delay, the balance between managing the court’s docket and allowing a fair opportunity to be heard, and whether lesser sanctions would be effective.
Ruling
The court concluded that the factors supported dismissal. It relied on the duration of Solstein’s failure to act, his failure to comply with the show-cause order, and his stated desire to end the litigation. Because Solstein was proceeding without a lawyer, the court determined that dismissal without prejudice appropriately considered whether lesser sanctions would be effective.
The action was dismissed without prejudice for failure to prosecute. The Clerk of Court was directed to mail Solstein a copy of the order and close the case.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.