Higgins v. 120 Riverside Boulevard at Trump Place Condominium

Background

Plaintiff Joanne Noel Higgins’s counsel moved to withdraw on October 26, 2022. After a November 10, 2022 show-cause hearing, the Court granted counsel’s motion to withdraw. Higgins requested three to four months to find another lawyer. The Court granted that request, stayed the case until March 1, 2023, and directed the parties to send a letter after that date addressing future deadlines.

Defendants asked for a conference to establish a new case-management schedule. The Court held the conference on March 15, 2023, but Higgins did not appear. Defendants stated that they would seek dismissal for failure to prosecute, and the Court set a briefing schedule. Defendants filed that motion on April 5, 2023. Higgins had two weeks to respond, but the opinion states that she filed no response and that no counsel had appeared for her as of April 23, 2023.

Legal standard

The Court explained that Federal Rule of Civil Procedure 41 permits dismissal for failure to prosecute or failure to comply with a court order. The Court applied five factors used in the Second Circuit: the length of the plaintiff’s delay; whether the plaintiff received notice that further delay could lead to dismissal; possible prejudice to the defendants; the balance between court-calendar concerns and the plaintiff’s opportunity to have the case heard; and whether lesser sanctions would be effective.

Court’s ruling

The Court held that dismissal was appropriate. It found that Higgins had not followed the order requiring a letter by March 1, had not appeared at the court-ordered conference, and had not opposed the dismissal motion. The Court found that she had received notice that failing to respond could result in dismissal. Although the record contained no specific evidence of prejudice to Defendants, the Court stated that prejudice may be presumed from unreasonable delay. The Court also concluded that lesser sanctions would be futile because Higgins had already been given an opportunity to continue the case and had failed to prosecute it.

The case was dismissed for failure to prosecute, and the Clerk of Court was directed to close the case. The opinion does not state whether the dismissal was with or without prejudice, and it does not reach the merits of the underlying claims.