Jacob v. Clark Associates LLC

Background

Joshua Seltzer and Aaron Jacob asserted employment-related claims against their former employer, the law firm of Clark & Fox. Seltzer filed the action in June 2020 and filed a Third Amended Complaint in February 2021. The defendants later answered that complaint.

In January 2023, Seltzer’s counsel moved to withdraw, stating that irreconcilable differences prevented effective collaboration on the litigation. The court granted the withdrawal motion on February 10, 2023, and scheduled a March 3 status conference. The court ordered Seltzer or a lawyer retained by him to attend and stated that failure to appear could result in dismissal.

Seltzer’s former counsel served him with the withdrawal papers, the order granting withdrawal, and notice of the status conference. Counsel for Jacob also provided the court with the conference call-in information while copying Seltzer. Neither Seltzer nor a lawyer appearing for him attended the March 3 conference. Seltzer later sent the judge an email asking whether the conference had occurred and saying he may have missed communications because of a change of address.

Defendants’ motion

The defendants moved to dismiss Seltzer’s Third Amended Complaint for failure to prosecute. Under Federal Rule of Civil Procedure 41(b), a defendant may seek dismissal when a plaintiff fails to prosecute an action or comply with court rules or orders.

Court’s reasoning

The court applied five factors used by the Court of Appeals for the Second Circuit: the length of the plaintiff’s failures; whether the plaintiff was warned that further delay could lead to dismissal; possible prejudice to the defendants; the need to balance court efficiency with the plaintiff’s opportunity to be heard; and whether a lesser sanction would work.

The court found that all five factors supported dismissal. It stated that Seltzer had taken virtually no substantive action for nearly three years, had received adequate notice of the required conference and the consequences of failing to appear, and had remained largely unresponsive. The court also found that further delay would cause undue prejudice to the defendants, that Seltzer’s lack of effort created unfairness to Jacob and the defendants, and that no sanction short of dismissal would be effective.

Ruling

Judge Alvin K. Hellerstein granted the defendants’ motion and dismissed Plaintiff Joshua Seltzer’s Third Amended Complaint with prejudice. The order stated that it was without prejudice to Plaintiff Aaron Jacob. The clerk was directed to terminate the motion docket entry.