Smith v. Annucci

Background

Mary Doe jointly filed the lawsuit with Jane Smith on February 26, 2021. Defendants noticed Doe’s deposition twice, but both scheduled depositions were adjourned at the request of her former attorneys, Cravath, Swaine & Moore LLP. Cravath later asked to withdraw, stating that it had been unable to communicate with Doe since April 11, 2022, despite repeated attempts.

The court allowed Doe until February 10, 2023, to oppose Cravath’s withdrawal request. She did not respond. On March 6, 2023, the court allowed Cravath to withdraw and ordered Doe to tell the court by May 5, 2023, whether she would proceed without a lawyer or retain new counsel. The filing states that Doe had not responded to that order either.

Defendants’ request

Defendants asked the court to dismiss Doe’s lawsuit and terminate her as a plaintiff under Rule 41(b) for failure to prosecute, meaning failure to actively pursue the case, and for failure to comply with a court order. They argued that all five factors used in Rule 41(b) cases favored dismissal: the length of Doe’s noncompliance, her opportunities to respond, likely prejudice to defendants from further delay, the court’s interest in managing its docket, and the apparent ineffectiveness of lesser sanctions.

The filing also asserted that Doe had not attended her deposition or answered outstanding written questions, and that additional delay could require extensions of discovery and motion deadlines. It further stated that several defendants had retired or were expected to retire. Those points were presented as arguments supporting the requested dismissal.

Court’s action

The court did not dismiss Doe’s lawsuit in the directive provided. Instead, the court ordered Mary Doe to respond no later than July 5, 2023, and warned that failure to respond would result in dismissal under Rule 41(b). The directive did not state that any dismissal would be with prejudice. Judge Ronnie Abrams signed the directive on June 20, 2023.