Gutierrez Hernandez v. Tuck
- Philip Halpern
- 7:22-cv-05242
- U.S. District Court · Southern District of New York
- 2
In Gutierrez Hernandez v. Tuck, Judge Halpern ordered plaintiffs to obtain counsel within 30 days or risk dismissal for failure to prosecute.
The plaintiffs, who were ordered to obtain new counsel or comply with the stated requirements for possible self-representation; defendants were responsible for serving and mailing the order.
What happened
Gutierrez Hernandez v. Tuck was removed from New York state court to federal court. The court had postponed the initial conference twice after defendants requested adjournments on behalf of plaintiffs’ counsel, but no lawyer entered an appearance for plaintiffs and plaintiffs did not communicate with the court or submit the required scheduling materials.
Defendants appeared for the rescheduled conference on October 26, 2022, but plaintiffs did not. The court ordered plaintiffs to obtain new counsel within 30 days. It also said that, if the plaintiff serving as administrator could establish an exception allowing him to represent himself, he had to provide the court with his mailing address, telephone number, and email address within that period.
Judge Halpern did not dismiss the case in this order. He warned that the court may dismiss it for failure to prosecute if plaintiffs do not have new counsel enter an appearance within 30 days or otherwise fail to comply. Defendants were ordered to serve and mail the order and file proof of that service and mailing.
The detailed version
- Gutierrez Hernandez v. Tuck · No. 7:22-cv-05242
- Philip Halpern
- Oct. 26, 2022
Background
Defendants removed this action from New York State Supreme Court in Westchester County on June 22, 2022. The federal court scheduled an initial conference for August 10, 2022. Defendants later filed two letters “on behalf of plaintiff’s counsel” requesting adjournments because the personal-injury practice at plaintiffs’ counsel’s firm was dissolving. The second letter stated that another lawyer was reviewing the file to determine whether to represent plaintiffs.
The court granted both requests and rescheduled the conference first to September 19, 2022, and then to October 26, 2022. With each adjournment, the court directed the parties to file a proposed civil-case discovery plan and scheduling order at least one week before the conference. The opinion states that, since removal, no lawyer had entered an appearance for plaintiffs, plaintiffs had not filed the required discovery plan and scheduling order, and plaintiffs had not communicated with the court.
Order
Defendants appeared at the October 26 conference, but plaintiffs did not. The court directed plaintiffs to obtain new counsel within 30 days. It explained that the general rule in federal court does not allow representative parties, such as guardians or executors, to appear without a lawyer. The court allowed that the plaintiff acting as administrator might be able to establish an exception and represent himself without a lawyer; if so, he had to submit his mailing address, telephone number, and email address within 30 days.
The court warned that it may dismiss the action for failure to prosecute under Federal Rule of Civil Procedure 41(b) if new counsel did not file a notice of appearance within 30 days or plaintiffs otherwise failed to comply. The court did not dismiss the action in this order. It directed defendants to serve a copy on plaintiffs’ counsel, mail a copy to plaintiffs at their last known address, and file proof of service and mailing.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.