Fleury Estevez v. Emergency Snack Bar, Corp.

Background

The plaintiffs filed their complaint on January 23, 2023. Plaintiff Herminio Hernandez Platon failed to appear at three court conferences despite being specifically and personally ordered to attend. He also missed multiple mediation conferences. His attorney withdrew because of his lack of communication, which had continued since at least October 2023, and no notice of appearance was filed for him afterward.

The court, court staff, counsel for the other plaintiffs, and defense counsel appeared at the January 16, 2024 initial pretrial conference, but Platon did not. The court stated that he was taking no steps to prosecute his case.

Legal standard

Federal Rule of Civil Procedure 41(b) permits a district court to dismiss a complaint when a party fails to comply with a court order, treating that failure as a failure to prosecute. The court considered the duration of Platon’s failures, the repeated warnings that dismissal could or would follow, possible prejudice from further delay, the need to manage the court’s calendar while protecting due process, and whether a lesser sanction would be effective.

Ruling

The court found dismissal warranted because Platon had failed to attend multiple mediation sessions and three court-ordered conferences, had not communicated with the court for approximately three months, and had given no indication that he intended to continue prosecuting the action. The court concluded that no lesser sanction would be effective. Judge Gregory H. Woods dismissed Platon’s claims against the defendants without prejudice for failure to prosecute under Rule 41(b). The order does not state a disposition of the other plaintiffs’ claims.