Parnes v. Receivable Management Services LLC , 489 F. App'x 510 ( 2012 )

11-2400-cv
Parnes v. Lumenis, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on the
10th day of December, two thousand twelve.
PRESENT: ROBERT D. SACK,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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LEO PARNES, LEO PARNES, D.O., P.C.,
MARC PARNES,
Plaintiffs-Appellants,
-v.- 11-2400-cv
RECEIVABLE MANAGEMENT SERVICES LLC,
TRANS UNION, LLC, EXPERIAN INFORMATION
SOLUTIONS, INC, EQUIFAX INFORMATION
SERVICES, LLC,
Defendants,
LUMENIS, INC.,
Defendant-Appellee.
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FOR PLAINTIFFS-APPELLANTS: Osita Emmanuel Okocha, New York, NY.
FOR DEFENDANT-APPELLEE: Daniel S. Ratner, Heidell, Pittoni,
Murphy & Bach LLP, New York, NY.
Appeal from the United States District Court for the
Eastern District of New York (Feuerstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiffs-appellants Leo Parnes, Leo Parnes, D.O., P.C.,
and Marc Parnes appeal from the district court's judgment entered
May 20, 2011, dismissing their claims against defendant-appellee
Lumenis, Inc. ("Lumenis"). The district court entered judgment
pursuant to its May 19, 2011 order overruling plaintiffs' objections
to Magistrate Judge William D. Wall's report and recommendation,
which recommended that the complaint be dismissed pursuant to Rule
41(b) of the Federal Rules of Civil Procedure for failure to
prosecute and failure to comply with discovery and other court
orders. We assume the parties' familiarity with the facts,
procedural history, and specification of issues for review.
We review an involuntary dismissal under Rule 41(b) for
abuse of discretion, Ruzsa v. Rubenstein & Sendy Attys at Law, 520
F.3d 176, 177 (2d Cir. 2008), although our review is less
deferential than in other contexts because of the severity of this
remedy, see Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). The
district court's exercise of discretion in this respect must be
guided by consideration of five factors:
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.
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United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254
(2d Cir. 2004). None of these factors is dispositive, so "we must
review the dismissal in light of the record as a whole." Id.
We conclude that the district court did not abuse its
discretion in dismissing this case. The court adequately considered
all five of these factors, and we agree that they favored dismissal.
First, the delays were significant. Lumenis filed its
answer to the amended complaint in July 2010 and little had been
accomplished by March 31, 2011, when Magistrate Judge Wall
recommended dismissal of the case. See Lyell Theatre Corp. v. Loews
Corp., 682 F.2d 37, 42-43 (2d Cir. 1982) (explaining that dilatory
"conduct may warrant dismissal after merely a matter of months").
Plaintiffs failed to comply with their obligation to make complete
initial disclosures; they failed to produce evidence regarding their
patients' alleged injuries; their counsel claimed relevant
information was contained on a floppy disk, but could not open the
disk and never disclosed its contents; they failed to complete
discovery; and they failed to submit a pretrial order. Moreover,
plaintiffs' counsel failed to appear for a pretrial conference on
March 31, 2011, and failed to return telephone calls from the
Magistrate Judge's chambers. See Link v. Wabash R.R. Co., 370 U.S.
626, 633-35 (1962) (holding that district court had discretion to
dismiss for counsel's failure to appear at a pretrial conference
when coupled with earlier delays).
Second, plaintiffs were warned that failing to disclose
the contents of the floppy disk would result in dismissal.
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Plaintiffs' counsel first claimed that the floppy disk contained
additional discoverable material at the pretrial conference on
November 17, 2010. Because counsel still had not provided that
material to Lumenis by the conference held on December 3, the
district court directed him to disclose it within thirty days and
warned him that failure to do so could result in dismissal. Not
only did plaintiffs miss that deadline, they did not engage in any
further discovery for nearly four months before the case was finally
dismissed. Although plaintiffs' counsel alleges for the first time
on appeal that he delivered hard copies of these documents to
Lumenis, he did not provide the district court with copies of those
documents or any other proof to support that claim.
Third, Lumenis would have been prejudiced by further
delay. We may assume prejudice where there has been an unreasonable
delay, see Peart v. City of New York, 992 F.2d 458, 462 (2d Cir.
1993), but Lumenis also would have suffered actual prejudice.
Lumenis had already expended time and resources defending this
action and appearing at scheduled conferences while plaintiffs have
failed to carry out their obligations to diligently prosecute this
action. Requiring Lumenis to continue doing so under these
circumstances would be prejudicial.
Fourth, the district court properly balanced the effect on
court congestion against the plaintiffs' interest in their day in
court. Requiring the court to police disclosure obligations and to
reschedule conferences clogs the court's docket and delays the
resolution of other cases. To the extent plaintiffs were prejudiced
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by any failings of their attorney, they chose him to represent them
and must now suffer the consequences. See Link, 370 U.S. at 633-34
("Petitioner voluntarily chose this attorney as his representative
in the action, and he cannot now avoid the consequences of the acts
or omissions of this freely selected agent.").1
Finally, the district court believed, in light of the
plaintiffs' disregard for both the court's prior instructions and
the Magistrate Judge's attempts to remedy his absence, that lesser
sanctions would be inadequate to address plaintiffs' persistent
dilatory conduct.
The district court did not abuse its discretion in
concluding that on whole the five factors weighed in favor of
dismissal. We have considered plaintiffs' remaining arguments and
find them to be without merit. Accordingly, we AFFIRM the judgment
of the district court. We also grant Lumenis's pending motion and
order Plaintiffs to pay the costs for preparation of the
supplemental appendix.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
1
We do not decide whether counsel's derelictions in this
case are grounds for a claim for malpractice.
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