Viverette v. City of New York
- Katherine Failla
- 1:23-cv-03362
- U.S. District Court · Southern District of New York
- 3
In Viverette v. City of New York, Judge Failla dismissed the action without prejudice because Viverette failed to prosecute or respond to court orders.
Earley Viverette, the City of New York, and the New York City Department of Administrative for Children’s Services; the action was closed without prejudice.
What happened
In Viverette v. City of New York, Earley Viverette filed the action against the City of New York and the New York City Department of Administrative for Children’s Services. Viverette did not file proof that the defendants had been served by the deadline, did not comply with a later order to file that proof, and did not respond to the court’s order to explain why the case should not be dismissed.
The court said Viverette had taken no action in the five months after filing the complaint. It concluded that allowing the inactive case to remain open would be unfair to other litigants waiting for the court’s attention and that a sanction short of dismissal would not be effective.
Judge Katherine Polk Failla dismissed the action without prejudice for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. The Clerk was directed to terminate pending motions, adjourn remaining dates, close the case, and mail the order to Viverette’s address of record.
The detailed version
- Viverette v. City of New York · No. 1:23-cv-03362
- Katherine Failla
- Sept. 21, 2023
Background
Earley Viverette filed this action on April 21, 2023, against the City of New York and the New York City Department of Administrative for Children’s Services. The Clerk issued summonses for both defendants that day. Under Rule 4(m), Viverette had until July 20, 2023, to serve the defendants.
Viverette did not file proof of service. On August 2, 2023, the court ordered Viverette to file proof of service by August 23 and warned that failing to comply could result in sanctions, including dismissal for failure to prosecute. On September 5, the court ordered Viverette to explain in writing by September 19 why the case should not be dismissed for failure to prosecute. Viverette did not respond to that order and had taken no action in the case during the five months after filing the complaint.
Legal standard
Rule 41(b) permits a district court to dismiss a complaint when a plaintiff fails to comply with a court order, treating that failure as a failure to prosecute. The court described dismissal as a harsh remedy reserved for extreme situations, but also recognized that courts may use it to manage their dockets and avoid keeping inactive cases open.
Ruling
The court found that Viverette had made no effort to comply with the court’s orders or prosecute the case. It concluded that allowing the case to remain on the docket would be unfair to other litigants waiting for the court’s attention and that no sanction other than dismissal would be effective. The court therefore dismissed the action without prejudice for failure to prosecute under Rule 41(b).
The Clerk of Court was directed to terminate all pending motions, adjourn all remaining dates, close the case, and mail a copy of the order to Viverette’s address of record.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.