Mulkern v. Lowes Inc.

Background

Kevin Mulkern responded to the court’s order to show cause by stating that he had not received correspondence from Lowe’s Home Center, LLC and learned about the notice of removal and motion to dismiss only after visiting the court’s Pro Se Intake Unit. The court understood Mulkern to be arguing that he had not received adequate notice of those filings.

Lowe’s argued that Mulkern knew about the filings. It relied on a complaint Mulkern filed in a separate action, which referred to a notice of removal and communications with defense counsel. The court said those circumstances reinforced its concern that Mulkern may not have understood the company’s filings or that his original state-court action had been moved to federal court. The court also noted that communications directing Mulkern back to New York State Supreme Court may have contributed to his confusion, while expressly stating that it did not believe defense counsel had misrepresented anything.

Court’s Ruling

The court explained that federal courts must give people representing themselves special consideration, including flexibility in applying procedural rules. Because Mulkern may not have adequately understood the filings, the court declined to dismiss the case for failure to prosecute.

Judge Kenneth M. Karas stated that the case was pending in federal court, not New York State Supreme Court, and emphasized that Mulkern should comply with the court’s filing deadlines. The court warned that failure to do so may lead to dismissal with prejudice. It directed Mulkern to advise the court by March 1, 2024, whether he wished to proceed with his original complaint or the amended complaint filed in the separate action. Lowe’s was directed to provide a proposed briefing schedule for its motion to dismiss by March 8, 2024, after Mulkern made that choice.

The opinion does not decide the merits of the motion to dismiss or identify the underlying claims in detail.