Asuncion v. Bard College

Background

John A. Asuncion, proceeding without a lawyer, sued Bard College under Title VII of the Civil Rights Act and 42 U.S.C. § 1981. He alleged discrimination based on race and sex. The opinion states that Asuncion originally sued three individual defendants under Title VII, but amended his complaint after the court explained that those claims were not viable against individual defendants alone. His Amended Complaint asserted discrimination claims against Bard College and abandoned the claims against the individual defendants.

After Bard College answered the Amended Complaint, Asuncion attempted to file a Second Amended Complaint. His first attempt, sent by email to the court’s pro se filing unit, was unsuccessful. He later filed a document on the docket but had not obtained the court’s permission to file a Second Amended Complaint. The court directed Asuncion and Bard College’s counsel to confer, and Bard College consented to the amendment. Asuncion then again emailed the filing unit asking it to file the Second Amended Complaint, but the pleading was never placed on the docket. More than a year passed without further prosecution of the case.

Bard College moved to dismiss for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. The opinion also notes that Asuncion worked with the New York Legal Assistance Group in preparing his opposition to the motion.

Rule 41(b) Standard

Rule 41(b) allows a defendant to ask the court to dismiss an action when the plaintiff fails to prosecute the case or comply with the rules or a court order. The court described dismissal for failure to prosecute as a harsh remedy reserved for extreme situations. It considered five factors: the length of the plaintiff’s failure to comply; whether the plaintiff was warned that noncompliance could lead to dismissal; likely prejudice to the defendant; the court’s interest in managing its docket compared with the plaintiff’s opportunity to be heard; and whether the court had adequately considered a less severe sanction.

Court’s Analysis

The first factor weighed slightly in Bard College’s favor because Asuncion did not confirm that his Second Amended Complaint had been filed and allowed more than a year to pass without otherwise prosecuting the case. The court presumed that the delay prejudiced Bard College, so the third factor also favored Bard College.

The second, fourth, and fifth factors did not support dismissal. Asuncion had not received a warning that failing to participate properly in the case could result in dismissal. Although the court had an interest in managing its docket, the delay had not caused an extreme amount of docket congestion. The court also found it unclear whether lesser sanctions would be effective because it had not yet warned Asuncion that failure to prosecute could lead to dismissal.

Ruling and Orders

The court denied Bard College’s motion to dismiss for failure to prosecute. The case was not dismissed by this order. The court directed Asuncion to file the Second Amended Complaint no later than June 6, 2023. It warned that failure to file it on time, or to show good cause for failing to do so, would result in dismissal with prejudice of all claims. The court also warned that any future failure to comply with a court order or otherwise prosecute the case could result in dismissal. If Asuncion filed the Second Amended Complaint, Bard College was directed to answer or seek permission to move in response by June 27, 2023. Judge Nelson S. Roman also directed the clerk to terminate Bard College’s motion from the docket.