Aberado v. City of New York

Background

Guillermo Aberado filed this action against the City of New York and John and Jane Does 1–3. The opinion identifies the Doe defendants as City employees. Aberado alleged unsafe prison conditions and asserted claims for assault and battery, harassment, intentional infliction of emotional distress, negligent training and hiring, negligence, respondeat superior liability, and violations of the Eighth and Fourteenth Amendments involving cruel and unusual punishment, deliberate indifference, and excessive force.

The defendants answered the complaint on August 21, 2023, and served discovery requests on August 31, 2023. Aberado did not respond. The defendants moved to compel responses on January 4, 2024. Aberado’s counsel then told the court that he was waiting for Aberado’s discovery responses. The court ordered status reports, and counsel later reported that he had not heard from Aberado or Aberado’s family and friends.

On February 21, 2024, the court ordered Aberado to respond to the discovery requests by April 22, 2024. The court expressly warned that failing to respond could result in dismissal for failure to prosecute under Federal Rule of Civil Procedure 41(b). The defendants reported on May 1 that they still had not received responses, and Aberado’s counsel reported on May 2 that he still had not been able to contact Aberado or his family and friends.

Rule 41(b) Standard

Rule 41(b) allows a court to dismiss an action when a plaintiff fails to prosecute the case or comply with court orders. The court considered five factors: the length of the plaintiff’s delay; whether the plaintiff received notice that further delay could result in dismissal; likely prejudice to the defendants; whether the court balanced its need to manage its docket with the plaintiff’s right to a fair opportunity to be heard; and whether lesser sanctions could be effective.

Court’s Analysis

The court found that all five factors supported dismissal. Aberado had not responded to discovery requests for more than eight months, a period the court said fell within time frames that supported dismissal under Rule 41(b). He had received clear warning that failing to respond could lead to dismissal. The court also presumed that the defendants were prejudiced by the unreasonable delay and found no circumstances rebutting that presumption.

The court further found that Aberado had not taken advantage of his opportunity to be heard and that no lesser sanction would remedy his failure to prosecute. The court concluded that Aberado appeared to have abandoned the litigation.

Disposition

The court dismissed Aberado’s case with prejudice for failure to prosecute under Rule 41(b). The clerk was directed to close the case.