Diesenhouse v. Social Learning and Payments, Inc.
- Lewis Liman
- 1:20-cv-07436
- U.S. District Court · Southern District of New York
- 3
In Diesenhouse v. Social Learning, Judge Liman dismissed the case for failure to prosecute after plaintiffs missed the deadline to file a second amended complaint.
The plaintiffs’ case was dismissed after they failed to file a second amended complaint and failed to respond to the court’s order. The defendants were affected because the case was closed in their favor on the stated procedural ground of failure to prosecute.
What happened
Diesenhouse v. Social Learning and Payments, Inc. involved claims that the court had previously dismissed, leaving plaintiffs an opportunity to file a second amended complaint. After plaintiffs’ lawyer withdrew and received an extension, plaintiffs did not file the amended complaint by the extended deadline.
The court then ordered plaintiffs to explain why the case should not be closed. Plaintiffs did not respond by the deadline. The court found that plaintiffs had received repeated warnings, the case had been pending for more than two years, and plaintiffs had not shown that they would file a new pleading.
Judge Lewis J. Liman dismissed the case for failure to prosecute and directed the Clerk of Court to close it. The opinion does not state whether this dismissal was with or without prejudice.
The detailed version
- Diesenhouse v. Social Learning and Payments, Inc. · No. 1:20-cv-07436
- Lewis Liman
- Oct. 18, 2022
Background
In an August 3, 2022 order, the court granted the defendants’ motion to dismiss the amended complaint. The court dismissed some claims with prejudice and dismissed other claims without prejudice to plaintiffs’ filing a second amended complaint within 30 days. The court warned that the case would be closed if plaintiffs did not file the second amended complaint by the deadline or any court-approved extension.
On September 1, 2022, plaintiffs’ lawyer said that a nonwaivable conflict and the decision to close his law firm prevented him from continuing to represent plaintiffs. He asked for an additional 30 days so plaintiffs could find new counsel and decide whether to prepare and file an amended pleading. The court granted that request, extending the deadline to October 2, 2022.
Failure to File and Respond
On October 12, 2022, counsel for defendant Edward Moran notified the court that plaintiffs had not filed a second amended complaint. The court ordered plaintiffs to respond by October 17 and explain why the case should not be closed. It warned that, without a response, the case would be dismissed. Plaintiffs did not respond by that deadline.
Court’s Analysis
The court explained that Federal Rule of Civil Procedure 41 permits a court to dismiss an action on its own for failure to prosecute or failure to comply with a court order. Courts in the Second Circuit consider five factors: the length of the delay, notice that further delay could lead to dismissal, likely prejudice to defendants, the balance between court congestion and the plaintiff’s opportunity to be heard, and whether lesser sanctions would be effective.
The court found dismissal appropriate. Plaintiffs had twice been warned that failure to meet the filing deadlines could result in dismissal. The case had been pending for more than two years, partly because of requests for more time, and there was no operative pleading or indication that plaintiffs would file one. Although the record contained no specific evidence of prejudice, the court stated that prejudice may be presumed from unreasonable delay. The court also found that plaintiffs had been given several opportunities to pursue their claims and apparently chose not to do so.
Disposition
The court dismissed the case for failure to prosecute and directed the Clerk of Court to close the case. The opinion does not state whether the October 18, 2022 dismissal was with or without prejudice.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.