Norman v. Three In One Equities, LLC
- James Oetken
- 1:22-cv-03176
- U.S. District Court · Southern District of New York
- 2
Judge Oetken dismissed Norman v. Three In One Equities without prejudice because Norman failed to prosecute after court orders.
Kimmarie Norman's action against Mi Bandera Groceries and Meats Inc. and Three In One Equities, LLC; the dismissal also ended the pending cross-claim and third-party proceedings identified in the opinion.
What happened
In Norman v. Three In One Equities, Kimmarie Norman sued Mi Bandera Groceries and Meats Inc. and Three In One Equities, LLC, seeking relief under the Americans with Disabilities Act and state laws.
Three In One Equities was later found in default. The court ordered Norman to seek a judgment or provide a status update, but she did neither. The court issued another order warning that the case would be dismissed if she did not respond, and she still took no action.
Judge Oetken dismissed the action without prejudice for failure to prosecute and directed the Clerk of Court to close the case.
The detailed version
- Norman v. Three In One Equities, LLC · No. 1:22-cv-03176
- James Oetken
- Oct. 12, 2023
Background
Kimmarie Norman sued individually and on behalf of all others similarly situated. She sought injunctive relief, declaratory relief, and damages under the Americans with Disabilities Act and state laws against Mi Bandera Groceries and Meats Inc. and Three In One Equities, LLC.
Three In One Equities filed an answer and a cross-claim against Mi Bandera Groceries and Meats. It later filed a third-party complaint against Wendy Yesmin Santos Luna and Nikaury Peralta. After the court allowed Three In One Equities’ counsel to withdraw, the court deemed Three In One Equities in default and ordered Norman to move for a judgment based on that default or file a status letter within 30 days. Norman did neither.
On October 2, 2023, the court ordered Norman to file a status letter by October 11 and warned that failing to do so would result in dismissal for failure to prosecute. Norman did not respond to that order or take any other affirmative step to move the case forward.
Rule and Analysis
Federal Rule of Civil Procedure 41(b) allows a district court to dismiss an action when a plaintiff fails to prosecute or comply with a rule or court order. The court determined that dismissal was appropriate because Norman had been warned that further delay could result in dismissal and had caused unreasonable delay. The court stated that dismissal without prejudice balanced reducing court-calendar congestion with protecting a party’s right to due process and a fair chance to be heard.
Disposition
Judge J. Paul Oetken ordered that the action be dismissed without prejudice. The Clerk of Court was directed to close the case.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.