Nico Lopez v. 3662 Broadway Restaurant Corp.
- Edgardo Ramos
- 1:19-cv-00975-ER
- U.S. District Court · Southern District of New York
- 5
In Nico Lopez v. 3662 Broadway Restaurant Corp., Judge Ramos dismissed the case without prejudice after Lopez failed to prosecute it.
Lopez’s case was dismissed without prejudice after he failed to respond to the court or take action for more than three years. The defendants were affected because the case was closed, and the pending motion was terminated.
What happened
Nico Lopez sued 3662 Broadway Restaurant Corp., John Doe Corp., and Albertico Chavez. The case was put on hold while Chavez’s bankruptcy proceeding was pending, and the parties took no meaningful action for more than three years.
After Lopez’s lawyers withdrew because they could not reach him, the court twice ordered Lopez to report whether he intended to continue the case and warned that silence could lead to dismissal. Lopez never responded, and the opinion does not describe the underlying claims.
Judge Edgardo Ramos dismissed the case without prejudice for failure to prosecute. The clerk was directed to terminate the pending motion and close the case.
The detailed version
- Nico Lopez v. 3662 Broadway Restaurant Corp. · No. 1:19-cv-00975-ER
- Edgardo Ramos
- June 6, 2023
Background
Joel Antonio Nico Lopez brought this action against 3662 Broadway Restaurant Corp. (doing business as Taqueria San Pedro), John Doe Corp. (doing business as El Patio Mexicano), and Albertico Chavez. The opinion states that Chavez was the sole owner of both restaurants. The parties reached an agreement in principle during mediation, but the agreement was not completed.
Chavez filed for bankruptcy on November 20, 2019. The court then stayed the case against all defendants while the bankruptcy proceedings continued. The parties later reported that the bankruptcy case had been dismissed and that Chavez had not received a discharge.
Failure to Prosecute
After the bankruptcy case ended, Lopez’s lawyers asked for time to contact him. One lawyer moved to withdraw because he could no longer communicate with Lopez, and the court granted that request. Another lawyer also withdrew. The court ordered Lopez to report whether he intended to pursue the case and warned him that failing to respond could result in dismissal for failure to prosecute. The orders were served on Lopez by mail and email. As of the order’s date, Lopez had not responded and had taken no further action.
Under Federal Rule of Civil Procedure 41(b), a court may dismiss a case when a plaintiff fails to prosecute it or fails to follow a court order. The court considered the length of Lopez’s delay, the warnings he received, the presumed prejudice to defendants from further delay, the court’s need to manage its docket, Lopez’s opportunity to be heard, and whether a less severe sanction would work. The court concluded that these factors favored dismissal. It also stated that dismissal without prejudice was appropriate because the dismissal was not based on the merits and had not greatly affected the court’s calendar.
Ruling
Judge Edgardo Ramos dismissed the case without prejudice for failure to prosecute. The Clerk of Court was directed to terminate pending motion Doc. 24, close the case, and mail Lopez a copy of the order while recording service on the docket. The opinion does not decide the underlying claims.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.