Hickory Capital, LLC v. SME Capital, LLC

Background

Hickory Capital, LLC brought this action against SME Capital, LLC, Steve Feldman, and George King. On March 14, 2023, the Court granted Hickory’s attorney’s motion to withdraw and gave Hickory until May 15, 2023, to retain new counsel. The Court later extended that deadline to June 27, 2023.

Hickory sent the Court a letter stating that it had not retained counsel and wished to dismiss the action. The Court noted that Hickory is an artificial entity and therefore cannot proceed without an attorney.

Legal standard

Federal Rule of Civil Procedure 41(b) permits a court to dismiss an action when a plaintiff fails to prosecute the case or comply with the Federal Rules of Civil Procedure or a court order. Before dismissing under that rule, the Court considered five factors: the length of the failure to comply, whether the plaintiff had notice that dismissal could result, possible prejudice to the defendants from further delay, the Court’s interest in managing its docket compared with the plaintiff’s opportunity to be heard, and whether a less severe sanction would be appropriate.

Ruling

The Court concluded that dismissal was appropriate because Hickory failed to retain new counsel, stated that it did not intend to retain counsel, and indicated that it did not intend to pursue the action. The Court dismissed Hickory’s complaint without prejudice for failure to prosecute.

The Clerk of Court was directed to terminate all pending motions, vacate all conferences, and close the case. The Clerk was also directed to mail a copy of the order to Hickory, identified in the order as proceeding without counsel.