ABL Venture Capital, LLC v. Thinomenon, Inc. ( 2023 )

22-486-cv
ABL Venture Capital, LLC v. Thinomenon, 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.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 3rd day of April, two thousand twenty-three.
4
5 PRESENT: BARRINGTON D. PARKER,
6 GERARD E. LYNCH,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges.
9 ------------------------------------------------------------------
10 ABL VENTURE CAPITAL, LLC, OS
11 RESEARCH, LLC,
12
13 Plaintiffs-Appellants,
14
15 v. No. 22-486-cv
16
17 THINOMENON, INC., GENNADY MEDNIKOV,
18 AKA GENNADY MEDUIKOV,
19
20 Defendants-Appellees.*
21 ------------------------------------------------------------------
* The Clerk of Court is directed to amend the caption as set forth above.
1
1
2 FOR PLAINTIFFS-APPELLANTS: Adam Paskoff, Paskoff
3 & Tamber, LLP,
4 Englewood Cliffs, NJ
5
6 FOR DEFENDANTS-APPELLEES: Jacob H. Nemon, Carter
7 Ledyard & Milburn LLP,
8 New York, NY
9
10 Appeal from a judgment entered in the United States District Court for the
11 Eastern District of New York (Ann M. Donnelly, Judge).
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
13 AND DECREED that the judgment of the District Court is AFFIRMED.
14 ABL Venture Capital, LLC and OS Research, LLC (“Appellants”) appeal
15 from a February 7, 2022 judgment of the United States District Court for the
16 Eastern District of New York (Donnelly, J.) dismissing with prejudice their
17 complaint against Thinomenon, Inc. and Gennady Mednikov for failure to
18 prosecute, pursuant to Federal Rule of Civil Procedure 41(b). We assume the
19 parties’ familiarity with the underlying facts and the record of prior proceedings,
20 to which we refer only as necessary to explain our decision to affirm.
21 “We review a [district] court’s dismissal under Rule 41(b) for an abuse of
22 discretion in light of the record as a whole.” Baptiste v. Sommers, 768 F.3d 212,
2
1 216 (2d Cir. 2014) (per curiam). In considering a Rule 41(b) motion, district
2 courts must weigh whether:
3 (1) the plaintiff’s failure to prosecute caused a delay of significant duration;
4 (2) plaintiff was given notice that further delay would result in dismissal;
5 (3) defendant was likely to be prejudiced by further delay; (4) the need to
6 alleviate court calendar congestion was carefully balanced against
7 plaintiff’s right to an opportunity for a day in court; and (5) the trial court
8 adequately assessed the efficacy of lesser sanctions.
9 U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). We
10 conclude that under the egregious circumstances of this case where the balance
11 of factors weighs strongly in favor of dismissal, the District Court did not abuse
12 its discretion in dismissing Appellants’ complaint with prejudice.
13 We have considered Appellants’ remaining arguments and conclude that
14 they are without merit. For the foregoing reasons, the judgment of the District
15 Court is AFFIRMED.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk of Court
3