Abagnale v. Kornstein
- Kenneth Karas
- 7:22-cv-00611
- U.S. District Court · Southern District of New York
- 4
In Abagnale v. Kornstein, Judge Karas dismissed Abagnale’s case without prejudice for failure to prosecute after nonservice.
Jason Frank Abagnale’s case was dismissed without prejudice because he failed to serve the defendants and did not continue prosecuting the case. Michael A. Kornstein, Cooper Erving & Savage LLP, and Citizens Bank, N.A. were not served according to the opinion.
What happened
In Abagnale v. Kornstein, Jason Frank Abagnale, representing himself, sued Michael A. Kornstein, Cooper Erving & Savage LLP, and Citizens Bank, N.A., alleging wrongful foreclosure and breach of contract. The court ordered Abagnale to serve the defendants, but they were never served, and Abagnale did not communicate with the court after filing the complaint.
The court considered whether Abagnale’s failure to serve the defendants and follow the court’s orders justified ending the case for failure to prosecute. It considered the length of the delay, notice of possible dismissal, potential prejudice, fairness, and whether a lesser penalty would be effective.
Judge Karas dismissed the case without prejudice for failure to prosecute. The court explained that dismissing without prejudice accounted for Abagnale’s self-represented status and the possibility of using a lesser penalty.
The detailed version
- Abagnale v. Kornstein · No. 7:22-cv-00611
- Kenneth Karas
- Apr. 5, 2023
Background
Jason Frank Abagnale, proceeding without a lawyer, sued Michael A. Kornstein, Cooper Erving & Savage LLP, and Citizens Bank, N.A. He alleged wrongful foreclosure and breach of contract. Abagnale filed the complaint on January 23, 2022.
On March 1, 2022, the court ordered Abagnale to serve the summons and complaint on each defendant within 90 days after the summonses were issued. The opinion states that Abagnale was directed on two occasions to serve the defendants and was warned that failing to do so could result in dismissal. The defendants were not served, and Abagnale had not communicated with the court since filing the complaint.
Legal standard
Federal Rule of Civil Procedure 41(b) allows a court to dismiss a case when a plaintiff fails to prosecute the case or comply with the Federal Rules of Civil Procedure or a court order. The court also has authority to order such a dismissal on its own initiative. The Second Circuit describes dismissal for failure to prosecute as a harsh remedy generally reserved for extreme situations and says that self-represented plaintiffs should receive special leniency in procedural matters.
Before dismissing for failure to prosecute, the court considers five factors: the length of the plaintiff’s failures; whether the plaintiff was warned that further delay could lead to dismissal; likely prejudice to the defendant from further delay; the balance between court efficiency and the plaintiff’s right to a fair opportunity to be heard; and whether lesser penalties would be effective. No single factor controls.
Court’s ruling
The court concluded that the factors favored dismissal because Abagnale failed to serve the defendants despite two orders and warnings. Because Abagnale was self-represented, however, the court determined that dismissal without prejudice appropriately accounted for whether a lesser penalty would be effective.
The court dismissed Abagnale’s case without prejudice for failure to prosecute. The Clerk of Court was directed to mail a copy of the order to Abagnale. The opinion did not decide the merits of the wrongful-foreclosure or breach-of-contract allegations.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.