El Dey v. Brann

Background

Abdullah Spencer El Dey was the plaintiff, and Cynthia Brann and other defendants were named as defendants. The court stated that it had not heard from El Dey since September 30, 2021. After denying the defendants’ motion to revoke El Dey’s status allowing him to proceed without paying filing fees, the court ordered him to contact the court by October 17, 2022, if he intended to continue prosecuting the case. The court expressly warned that failing to communicate could result in dismissal for failure to prosecute.

The court also noted that several recent orders had been returned as undeliverable. Earlier, El Dey had been advised that he was required to promptly notify the court if his address changed and that the case could be dismissed if he failed to do so. The court found that it could not proceed without updated contact information.

Legal standard

The court applied Federal Rule of Civil Procedure 41(b), which permits dismissal when a plaintiff fails to prosecute an action or comply with a court order. The court considered the factors used in the Second Circuit: the length of the failure, whether the plaintiff was warned that dismissal could result, likely prejudice to the defendants from further delay, the balance between court administration and the plaintiff’s opportunity to be heard, and whether a less severe sanction had been considered.

Ruling

The court concluded that dismissal was warranted because it could not proceed without updated contact information from El Dey. Because he was representing himself, the court found that dismissal without prejudice was more appropriate than dismissal with prejudice. The order dismissed the case without prejudice for failure to prosecute, directed the clerk to close the case, and directed the clerk to mail a copy of the order to El Dey despite the likelihood that it would be returned as undeliverable.