Summary
reversing district court's dismissal of complaint for failure to prosecute because trial was delayed less than one hour
Summary of this case from Everest National Insurance Company v. MendlowitzOpinion
No. 09-2226-cv.
January 14, 2010.
Appeal from a judgment of the United States District Court for the Southern District of New York (Kevin Nathaniel Fox, Magistrate Judge).
Upon consent of the parties, the District Court referred the case to Magistrate Judge Fox for all purposes, including trial, pursuant to 28 U.S.C. § 636(c).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be VACATED and the cause REMANDED to the District Court for trial.
Arnold E. DiJoseph, Arnold E. DiJoeph, P.C., New York, N.Y. (Joanne Marie Dwyer, Law Offices of Joanne Marie Dwyer, New York, NY, of counsel), for Appellant.
Karla Denalli, Port Authority of New York and New Jersey, New York, NY, for Appellees.
SUMMARY ORDER
Plaintiff Bruno Blazina appeals from the October 23, 2008 judgment of the District Court and the April 22, 2009, 2009 WL 1097322, Memorandum and Order of the District Court denying Blazina's motion for relief from judgment, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure ("Rule 60(b)"). On appeal, plaintiff argues that the District Court erred in dismissing plaintiff's complaint for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b) ("Rule 41(b)"). Plaintiff also argues that the District Court erred in denying his motion for relief from judgment pursuant to Rule 60(b). We assume the parties' familiarity with the underlying facts and procedural history of the case.
Rule 41(b) permits a district court to dismiss an action when a plaintiff fails to prosecute or to comply with a court order. Fed.R.Civ.P. 41(b). We review a district court's dismissal of a complaint for failure to prosecute for an "abuse of discretion." See, e.g., Ruzsa v. Rubenstein Sendy Attys at Law, 520 F.3d 176, 177 (2d Cir. 2008); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) ("A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence or rendered a decision that cannot be located within the range of permissible decisions." (internal alteration, citations, and quotation marks omitted)). We are mindful, however, that dismissal of a complaint under Rule 41(b) is a "harsh remedy" that should "be utilized only in extreme situations." Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993).
The propriety of a Rule 41(b) dismissal depends on the balancing of the following factors, none of which is dispositive: (1) the duration of the plaintiffs' failure to comply with the court order; (2) whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendants were likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal. See United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004).
In the present case, the District Court dismissed the complaint because plaintiff's counsel failed to appear on time for the scheduled start of trial. After taking all factors into account, we conclude that the District Court dismissed this complaint prematurely. Most importantly, the first factor counsels against dismissal in this case. Here, the District Court dismissed the complaint after a less-than-one-hour delay. This was not significant. Furthermore, the District Court had not previously put plaintiff's counsel on notice that any delay could result in dismissal. Finally, there is no evidence that the District Court considered the feasibility of other, less dramatic, sanctions. There is no evidence that the third or fourth factors favor dismissal in this case. We therefore conclude that dismissal for failure to prosecute was inappropriate.
Because we conclude that the District Court erred in dismissing Blazina's claims for failure to prosecute, we need not consider whether the District Court erred in denying plaintiff's motion for relief from judgment, pursuant to Rule 60(b).
CONCLUSION
We have considered all of defendants' argument in support of the judgment and have found them to be without merit. For the reasons stated above, the judgment of the District Court is VACATED and the cause is REMANDED to the District Court for trial.