Velasquez v. NC Affiliated JV I, LLC

Background

Ricardo Velasquez filed the complaint on April 22, 2021. He later filed affidavits stating that the summons and complaint had been served on the defendants. The defendants never filed answers or otherwise appeared. Velasquez also took no action to prosecute the case.

On July 18, 2022, the court issued an order requiring Velasquez to explain why the case should not be dismissed for failure to prosecute and why the court should not require his lawyer to pay monetary fines. The court warned Velasquez personally that failing to follow court orders and prosecute the case could result in dismissal with prejudice.

Velasquez’s lawyer requested 30 days to properly serve the defendants and prosecute the case. The court granted that request and required Velasquez to file a status letter by August 25, 2022. The court again warned that failure to comply with court orders and prosecute the case could lead to sanctions, including dismissal with prejudice. Velasquez never filed the required status letter or took any other action to prosecute the case.

Court’s Analysis

Rule 41(b) allows a federal district court to dismiss a case with prejudice when a plaintiff fails to prosecute the case or comply with court orders. The court considered the factors required by Second Circuit precedent, including the length of the failure to prosecute, whether the plaintiff received notice that dismissal was possible, likely prejudice to the defendants from further delay, the court’s interest in managing its docket, the plaintiff’s opportunity to be heard, and whether a less severe sanction would work.

The court concluded that dismissal was clearly warranted. It found that Velasquez had failed to prosecute the case for more than two years, had received two warnings, and still failed to comply with a court order. The court also considered requiring his lawyer to pay monetary fines, but determined that this lesser sanction had not prompted compliance. The court stated that Velasquez remained responsible for prosecuting his case, even if the failure resulted from his lawyer’s conduct.

Ruling

Judge Mary Kay Vyskocil ordered that the case be dismissed, with prejudice, for failure to prosecute under Rule 41(b). The Clerk of Court was requested to close the case.