Kirschner v. Stark Group Inc. et al
| Jonathan Kirschner |
| Marylin Stark, Stark Group Inc., George Stark and Royal Hospitality, LLC |
| 1:2020cv01360 |
| November 3, 2020 |
| US District Court for the Northern District of New York |
| Daniel J Stewart |
| Glenn T Suddaby |
| Civil Rights: Accommodations |
| 42 U.S.C. § 2000 Job Discrimination (Public Accommodations) |
| Plaintiff |
Docket Report
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| Filing 27 JUDGMENT that, pursuant to the Text Order (Dkt. No. 26 ) entered on January 27, 2022 by Chief District Judge Glenn T. Suddaby, this case is sua sponte DISMISSED without prejudice as to the remaining claims in Plaintiff's Complaint (Dkt. No. #1 ) for failure to prosecute and/or comply with the Court's Order to Show Cause of 12/13/2021 (Dkt. No. 25 ) under Fed. R. Civ. P. 41(b). After carefully considering the matter, the Court finds that the five factors to be considered when contemplating such a dismissal weigh in favor of dismissal. Hevner v. Village East Towers, Inc., No. 07-5608, 2008 WL 4280070, at *1-2 (2d Cir. Sept. 18, 2008). With regard to the first factor, the Court finds that the duration of Plaintiff's failure is at least two weeks. (Dkt. No. 25 [setting deadline of 1/12/2022].) With regard to the second factor, the Court finds that Plaintiff, who is represented by counsel, clearly received adequate notice that the failure in question would result in dismissal of his action. (Dkt. No. 25 ) See also N.D.N.Y. L.R. 41.2(a) ("Whenever it appears that the plaintiff has failed to prosecute an action or proceeding diligently, the assigned judge shall order it dismissed."). With regard to the third factor, the Court finds that Defendants are likely to be prejudiced by a further delay by Plaintiff: given the length of time since the events giving rise to this action occurred (i.e., August 13, 2019), a further delay will likely affect witnesses' memories, the ability to locate witnesses, and the preservation of evidence. See Georgiadis v. First Boston Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) ("The passage of time always threatens difficulty as memories fade. Given the age of this case, that problem probably is severe already. The additional delay that plaintiff has caused here can only make matters worse."). Moreover, Plaintiff's delay is without explanation and thus unreasonable. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982) ("Prejudice to defendants resulting from unreasonable delay may be presumed...."). With regard to the fourth factor, the Court finds that the need to alleviate congestion on its civil and criminal docket (both with regard to motions and trials) outweighs Plaintiff's right to receive a further chance to be heard in this case (without having to refile his dismissed claims). Moreover, the Court finds that Plaintiff's failure to prosecute and/or comply with an Order of the Court has not been "silent and unobtrusive" but "vexations and burdensome," causing the need to regularly monitor the docket since 12/13/2021. Mayanduenas v. Bigelow, 849 F. App'x 308, 311 (2d Cir. 2021). Finally, given the ineffectiveness of the Court's prior admonishment (of 12/13/2021), the Court finds that less-drastic sanctions would be inadequate under the circumstances. In short, while the first factor weighs somewhat against dismissal, the remaining four factors weigh more strongly in favor of dismissal. The Clerk is directed to CLOSE this action. All of the above pursuant to the Text Order entered on January 27, 2022 by the Honorable Glenn T. Suddaby. Dkt. No. 26 . (sal ) |
Filing 26
TEXT ORDER sua sponte DISMISSING without prejudice the remaining claims in Plaintiff's Complaint (Dkt. No. #1 ) for failure to prosecute and/or comply with the Court's Order to Show Cause of 12/13/2021 (Dkt. No. 25 ) under Fed. R. Civ. P. 41(b). After carefully considering the matter, the Court finds that the five factors to be considered when contemplating such a dismissal weigh in favor of dismissal. Hevner v. Village East Towers, Inc., No. 07-5608, 2008 WL 4280070, at *1-2 (2d Cir. Sept. 18, 2008). With regard to the first factor, the Court finds that the duration of Plaintiff's failure is at least two weeks. (Dkt. No. 25 [setting deadline of 1/12/2022].) With regard to the second factor, the Court finds that Plaintiff, who is represented by counsel, clearly received adequate notice that the failure in question would result in dismissal of his action. (Dkt. No. 25 ) See also N.D.N.Y. L.R. 41.2(a) ("Whenever it appears that the plaintiff has failed to prosecute an action or proceeding diligently, the assigned judge shall order it dismissed."). With regard to the third factor, the Court finds that Defendants are likely to be prejudiced by a further delay by Plaintiff: given the length of time since the events giving rise to this action occurred (i.e., August 13, 2019), a further delay will likely affect witnesses' memories, the ability to locate witnesses, and the preservation of evidence. See Georgiadis v. First Boston Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) ("The passage of time always threatens difficulty as memories fade. Given the age of this case, that problem probably is severe already. The additional delay that plaintiff has caused here can only make matters worse."). Moreover, Plaintiff's delay is without explanation and thus unreasonable. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982) ("Prejudice to defendants resulting from unreasonable delay may be presumed...."). With regard to the fourth factor, the Court finds that the need to alleviate congestion on its civil and criminal docket (both with regard to motions and trials) outweighs Plaintiff's right to receive a further chance to be heard in this case (without having to refile his dismissed claims). Moreover, the Court finds that Plaintiff's failure to prosecute and/or comply with an Order of the Court has not been "silent and unobtrusive" but "vexations and burdensome," causing the need to regularly monitor the docket since 12/13/2021. Mayanduenas v. Bigelow, 849 F. App'x 308, 311 (2d Cir. 2021). Finally, given the ineffectiveness of the Court's prior admonishment (of 12/13/2021), the Court finds that less-drastic sanctions would be inadequate under the circumstances. In short, while the first factor weighs somewhat against dismissal, the remaining four factors weigh more strongly in favor of dismissal. SO ORDERED by Chief Judge Glenn T. Suddaby on 1/27/2022. (sal )
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Filing 25
TEXT ORDER directing Plaintiff to file a renewed Motion for Default Judgment as to Defendants Stark Group, Inc., Royal Hospitality, LLC, and Marilyn Stark on or before 1/12/2022 or show cause why this action should not be dismissed for failure to prosecute. SO ORDERED by Chief Judge Glenn T. Suddaby on 12/13/2021. (sal)
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| Filing 24 DEFAULT JUDGMENT that, pursuant to the Decision and Order issued by the Honorable Glenn T. Suddaby on December 13, 2021 (Dkt. No. #23 ), that Plaintiff's motion for default judgment (Dkt. No. 21) is GRANTED in part and DENIED in part, as follows: Plaintiff's motion for default judgment is DENIED without prejudice with respect to his Title II claim against all Defendants, and GRANTED with respect to liability on his NYSHRL claim against Defendant George Stark, and otherwise DENIED without prejudice as to all other Defendants; Plaintiff's request for compensatory damages under the NYSHRL is GRANTED to the extent it seeks $7,000 from Defendant George Stark, and is otherwise DENIED; and Plaintiff's request for punitive damages under the NYSHRL is DENIED. The Clerk of the Court is directed to enter a default judgment in Plaintiff's favor against Defendant George Stark in the amount set forth above. All of the above pursuant to the Decision and Order of the Honorable Glenn T. Suddaby, dated this 13th day of December, 2021. Dkt. No. #23 . (sal) |
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Filing 23
DECISION AND ORDER that that Plaintiff's motion for default judgment (Dkt. No. #21 ) is GRANTED in part and DENIED in part, as follows: Plaintiff's motion for default judgment is DENIED without prejudice with respect to his Title II claim against all Defendants, and GRANTED with respect to liability on his NYSHRL claim against Defendant George Stark, and otherwise DENIED without prejudice as to all other Defendants; Plaintiff's request for compensatory damages under the NYSHRL is GRANTED to the extent it seeks $7,000 from Defendant George Stark, and is otherwise DENIED; and Plaintiff's request for punitive damages under the NYSHRL is DENIED. ORDERED that the Clerk of the Court is directed to enter a default judgment in Plaintiffs favor against Defendant George Stark in the amount set forth above. Signed by Chief Judge Glenn T. Suddaby on 12/13/2021. (sal)
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| Filing 22 CERTIFICATE OF SERVICE by Jonathan Kirschner re Notice of Hearing on Motion,, (Lee, C.K.) |
| TEXT NOTICE re Motion #21 for Default Judgment as to Defendants STARK GROUP INC., ROYAL HOSPITALITY, LLC, GEORGE STARK, and MARYLIN STARK filed by Jonathan Kirschner. : Response to Motion due by 6/24/2021. Reply to Response to Motion due by 7/1/2021. This motion is taken on submission of the papers and returnable before Chief Judge Glenn T. Suddaby. No appearances are required. Plaintiff's counsel is directed to serve a copy of this text notice upon the defendants by regular mail. (sal) |
| Filing 21 MOTION for Default Judgment as to Defendants STARK GROUP INC., ROYAL HOSPITALITY, LLC, GEORGE STARK, and MARYLIN STARK filed by Jonathan Kirschner. Response to Motion due by 6/24/2021. Reply to Response to Motion due by 7/1/2021 (Attachments: #1 Declaration, #2 Memorandum of Law, #3 Proposed Order/Judgment) (Lee, C.K.) |
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Filing 20
TEXT ORDER granting #19 Letter Request to withdraw the #17 Motion for Default Judgment and to refile under Counsel of Record's name, C.K. Lee, Esq.. SO ORDERED by Chief Judge Glenn T. Suddaby on 6/3/2021. (sal )
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| Filing 19 Letter Motion from C.K. Lee, Esq. for Jonathan Kirschner requesting to withdraw Dkt. 17 and to refile under Counsel of Record's name, C.K. Lee, Esq. submitted to Judge Glenn T. Suddaby . (Lee, C.K.) |
| Filing 18 NOTICE OF ADMISSION REQUIREMENT: as to Party Plaintiff; Attorney Anne Seelig, Esq., Email address is anne@leelitigation.com. Phone number is (212) 661-1008. Admissions due by 6/11/2021. {Copy served upon Attorney Seelig by email} (jmb) |
| Filing 17 MOTION for Default Judgment as to Defendants STARK GROUP INC., ROYAL HOSPITALITY, LLC, GEORGE STARK, and MARYLIN STARK, filed by Jonathan Kirschner. Response to Motion due by 6/16/2021. Reply to Response to Motion due by 6/23/2021 (Attachments: #1 Declaration, #2 Memorandum of Law, #3 Proposed Order/Judgment) (Lee, C.K.) |
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TEXT ORDER: According to the docket sheet, clerk's entry of default has been entered against the defendants. Plaintiff's counsel is directed to either file a motion for default judgment or a status report by 5/26/2021. SO ORDERED by Chief Judge Glenn T. Suddaby on 4/26/2021. (sal)
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| Filing 16 CLERK'S ENTRY OF DEFAULT: as to Stark Group Inc., Royal Hospitality, LLC, George Stark and Marylin Stark, approving the #15 Request for Entry of Default. (jmb) |
| Filing 15 REQUEST FOR ENTRY OF DEFAULT as to Royal Hospitality, LLC, George Stark, Marylin Stark, Stark Group Inc. by Jonathan Kirschner. (Attachments: #1 Exhibit(s) Affidavit of C.K. Lee, Esq.)(Lee, C.K.) |
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Filing 14
TEXT ORDER: According to the docket sheet, the deadline for defendants to respond to plaintiff's complaint has expired. Plaintiff's counsel is directed to either file a request for clerk's entry of default or a status report on or before 4/19/2021. SO ORDERED by Chief Judge Glenn T. Suddaby on 4/13/2021. (sal )
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| Filing 13 SUMMONS Returned Executed by Jonathan Kirschner. Marylin Stark served on 3/9/2021, answer due 3/31/2021. (Lee, C.K.) |
| Filing 12 SUMMONS Returned Executed by Jonathan Kirschner. Marylin Stark served on 3/10/2021, answer due 3/31/2021. (Lee, C.K.) Modified on 3/16/2021 to note an amended document will be filed to include the personally served checkbox marked. (jmb) |
| Filing 11 SUMMONS Returned Executed by Jonathan Kirschner. George Stark served on 3/10/2021, answer due 3/31/2021. (Lee, C.K.) |
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Filing 10
TEXT ORDER: On January 13, 2021, Plaintiff filed a Status Report advising the Court as to the status of service upon Defendants in this matter. Dkt. No. #9 . Upon review of Plaintiff's Status Report, the Court grants an extension of time to complete service of the Summons and Complaint upon Defendants to March 16, 2021. Plaintiff is directed to file proof of service on the case docket. The Rule 16 Initial Conference scheduled for February 1, 2021 before the undersigned and the deadline for the parties to file a proposed Civil Case Management Plan and exchange Mandatory Disclosures are ADJOURNED without date and will be rescheduled upon the filing of Defendants' Answers. SO ORDERED by Magistrate Judge Daniel J. Stewart on 1/15/2021. (mab)
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| Filing 9 STATUS REPORT re: Service of Defendants by Jonathan Kirschner. (Lee, C.K.) |
| Filing 8 SUMMONS Returned Executed by Jonathan Kirschner. Royal Hospitality, LLC served on 12/23/2020, answer due 1/13/2021. (Lee, C.K.) |
| Filing 7 SUMMONS Returned Executed by Jonathan Kirschner. Stark Group Inc. served on 12/23/2020, answer due 1/13/2021. (Lee, C.K.) |
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Filing 6
TEXT ORDER: Pursuant to N.D.N.Y.L.R. 4.1 (b), the 60 day time frame within which service of the Summons and Complaint upon the Defendants was to be completed has expired. If service has been completed then proper proof of such service shall be filed on the case docket. Plaintiff is directed to advise as to the status of this matter by January 13, 2021. SO ORDERED by Magistrate Judge Daniel J. Stewart on 1/6/2021. (mab)
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| Filing 5 NOTICE by Jonathan Kirschner re #4 Notice of Admission Requirement, (Lee, C.K.) |
| Filing 4 NOTICE OF ADMISSION REQUIREMENT: as to Party Plaintiff; Attorney Anne Seelig, Esq., Phone number is 212-465-1188. Admissions due by 11/17/2020. {Copy served upon Attorney Seelig by regular mail on 11/3/2020 (no email address noted on complaint)} (jmb) |
| Filing 3 G.O. 25 FILING ORDER ISSUED: Initial In-Person Rule 16 Conference set for 2/1/2021 at 9:00 AM in Albany before Magistrate Judge Daniel J. Stewart. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 1/25/2021. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (jmb) |
| Filing 2 Summons Issued as to Stark Group Inc. (Attachments: #1 Summons issued for Royal Hospitality, LLC, #2 Summons issued for George Stark, #3 Summons issued for Marylin Stark) (jmb) |
| Filing 1 COMPLAINT WITH JURY DEMAND: against Stark Group Inc., Royal Hospitality, LLC, George Stark and Marylin Stark, (Filing fee $400 receipt number ANYNDC-5303897) filed by Jonathan Kirschner. (Attachments: #1 Civil Cover Sheet) (jmb) |
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