Commercial Litigation and Arbitration

Standards for Dismissal under Rules 37 and 41(b) — Rule 37 Factors Not Exhaustive — Each Need Not Be Satisfied If Order Is “Just” — Pro Se Must Be Warned before Sanction of Dismissal Imposed — 41(b) Dismissal May Be Sua Sponte

Manigaulte v. C.W. Post of Long Island Univ., 2013 U.S. App. LEXIS 14096 (2d Cir. July 12, 2013):

While "dismissal with prejudice is a harsh remedy to be used only in extreme situations, and then only when a court finds willfulness, bad faith, or any fault by the non-compliant litigant," Agiwal, 555 F.3d at 302 (internal quotation marks omitted), it "may be imposed even against a plaintiff who is proceeding pro se, so long as a warning has been given that noncompliance can result in dismissal," Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994). In evaluating a dismissal under Rule 37, we consider: "(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the non-compliant party had been warned of the consequences of . . . noncompliance." Agiwal, 555 F.3d at 302 (internal quotation marks omitted). Because Rule 37 "requires only that the district court's orders be 'just,' however, and because the district court has wide discretion in imposing sanctions under Rule 37, these factors are not exclusive, and they need not each be resolved against the party challenging the district court's sanctions for us to conclude that those sanctions were within the court's discretion." S. New Eng. Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010) (citation and internal quotation marks omitted). Rule 41(b) provides that an action may be dismissed if a plaintiff fails to prosecute or comply with a court order.

Footnote 2. "Although not explicitly authorized by the rule, such dismissals may be made sua sponte." Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998)

Fed. R. Civ. P. 41(b). We review dismissals pursuant to Rule 41(b) for abuse of discretion, but "deference is due to the district court's decision to dismiss a pro se litigant's complaint only when the circumstances are sufficiently extreme." Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998) (internal quotation marks omitted). In reviewing a Rule 41(b) dismissal, we consider whether: "(1) the plaintiff's failure to prosecute caused a delay of significant duration; (2) plaintiff was given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser sanctions." Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009) (internal quotation marks omitted). No single factor is dispositive, and we review the dismissal in light of the record as a whole. See United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004).

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