Cruz v. Indestructible Shoes LLC
- Vyskocil
- 1:21-cv-09937
- U.S. District Court · Southern District of New York
- 2
In Cruz v. Indestructible Shoes, Judge Vyskocil discontinued the action for failure to prosecute, allowing restoration by June 13, 2022, or making dismissal with prejudice.
Shael Cruz, the putative similarly situated plaintiffs, and Indestructible Shoes LLC. The action was discontinued for failure to prosecute, subject to the stated restoration deadline.
What happened
Shael Cruz filed this action against Indestructible Shoes LLC and identified himself as acting for others similarly situated. The defendant did not answer or otherwise appear, and Cruz did not ask the court to enter a default judgment.
The court had ordered Cruz to file a motion for default judgment by May 12, 2022, warning that failing to do so could lead to dismissal for failure to prosecute. Cruz did not file that motion or take any other action to move the case forward.
In Cruz v. Indestructible Shoes LLC, Judge Mary Kay Vyskocil ordered the action discontinued for failure to prosecute, without costs to any party and without prejudice to restoring it if Cruz applied by June 13, 2022. If no restoration application was made by that date, the dismissal would be with prejudice.
The detailed version
- Cruz v. Indestructible Shoes LLC · No. 1:21-cv-09937
- Vyskocil
- May 13, 2022
Background
Shael Cruz filed the complaint on November 24, 2021, against Indestructible Shoes LLC, individually and on behalf of all others similarly situated. An affidavit stating that the summons and complaint had been served was filed on February 16, 2022. The summons stated that the defendant’s response was due February 11, 2022.
The defendant had not answered or otherwise appeared. Cruz had also not filed a motion seeking a default judgment. On April 12, 2022, the court directed Cruz to file any motion for entry of a default judgment by May 12, 2022, and warned that failing to do so could result in dismissal for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.
Ruling
Cruz did not file a motion for default judgment or take any other action to prosecute the case. The court therefore 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 an application to restore it was made by June 13, 2022. The order stated that if no application was made by that date, the dismissal would be with prejudice.
Effect
The order ended the action as of May 13, 2022, while providing a deadline to seek restoration. The opinion does not address the merits of Cruz’s claims.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.