10-3303-cv
Storey v. O’Brien et al.
                            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 25th day of May, two thousand twelve.

PRESENT: JOSEPH M. McLAUGHLIN,
         ROBERT D. SACK,
         GERARD E. LYNCH,
                         Circuit Judges.

————————————————————————

JOHN B. STOREY, JOAN STOREY, also known as
Joan Lobo,
                         Plaintiffs-Appellants,

                           v.                                          No. 10-3303-cv

JACQUELINE O’BRIEN, PEGGY BARTISH, and
WASHINGTON MUTUAL BANK
                        Defendants-Appellees.

————————————————————————

FOR APPELLANT:                  VIVIAN M. WILLIAMS, Vivian M. Williams & Associates,
                                PC, New York, New York.

FOR APPELLEE:                   MIRIAM E. ZAKARIN, Treuhaft & Zakarin, LLP, New
                                York, New York.

           Appeal from the United States District Court for the Eastern District of New York

(Sterling Johnson, Jr., Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       The parties to this appeal are the children of the late John E. Storey, who died

intestate and whose estate consisted primarily of a residential property in Kings County,

New York. Plaintiffs-appellants filed suit in federal district court, alleging that

defendants-appellees fraudulently transferred the decedent’s property to avoid probate,

thereby denying appellants their rightful inheritance. Appellants committed several errors

and failures in the prosecution of the case, including failing to join an indispensable party,

naming a deceased person as a co-plaintiff, failing to appear at scheduled hearings,

naming non-diverse defendants in this diversity action, and failing to follow the Federal

Rules of Civil Procedure regarding the service of process. After more than a year of such

delays, the district court ordered appellants to show cause why the suit should not be

dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). Instead of

responding to the order, on the day before the deadline, appellants requested an extension

due to their attorney’s “unexpected personal emergency” that required him to

“immediately leave the country,” thus preventing him from conferring with his clients

regarding the Court’s order.

       Despite this claim of international travel precluding consultation, just two days

later appellants filed an untimely response to the order to show cause that identified, inter

alia, appellees’ counsel’s pregnancy as a purported justification for some of the

appellants’ derelictions. The district court assessed these continued delays and


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unresponsive justifications in the context of appellants’ previous failures, and dismissed

the case under Rule 41(b). We assume the parties’ familiarity with the facts and

procedural history of the case.

       We review a district court’s order dismissing a complaint under Rule 41(b) for

abuse of discretion. Lewis v. Rawson, 564 F.3d 569, 575 (2d Cir. 2009). Rule 41(b)

authorizes a court to dismiss an action “[i]f the plaintiff fails to prosecute or to comply

with [the Federal Rules of Civil Procedure] or a court order . . . . Unless the dismissal

order states otherwise, a dismissal under this subdivision . . . operates as an adjudication

on the merits.” Although not explicitly authorized by the rule, such dismissals may be

made sua sponte. See Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993).

Moreover, since “an adjudication on the merits,” Fed. R. Civ. P. 41(b), is the “functional

equivalent of an order of dismissal with prejudice,” RLS Assocs., LLC v. United Bank of

Kuwait PLC, 417 F. Supp. 2d 417, 420 (S.D.N.Y. 2006), the district court’s dismissal is

deemed with prejudice. See also Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S.

497, 505-07 (2001) (defining an “adjudication on the merits” pursuant to Rule 41(b) as

“barring the plaintiff from returning later, to the same court, with the same underlying

claim”).

       Although a Rule 41(b) dismissal is at the discretion of the district court, it is a

“harsh remedy to be utilized only in extreme situations.” United States ex rel. Drake v.

Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004) (internal quotation marks omitted).

Before dismissing a claim pursuant to Rule 41(b), the district court must apply the five-


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factor test articulated in Drake:

       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. No one factor is
       dispositive, and ultimately we must review the dismissal in light of the record
       as a whole.

Id. (citation omitted). Moreover, although “a decision to dismiss stands a better chance

on appeal if the appellate court has the benefit of the district court’s reasoning” on each of

the five factors, we do not “require the [district] court to discuss the factors on the

record.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).

       Here, we do have “the benefit of the district court’s reasoning.” In its dismissal

order, the district court cited the five factors that guide its decision to dismiss, and

expressly assessed the fourth factor by balancing the problems caused by the appellants’

failures and errors – especially given the district court’s own generous solicitude in

identifying and correcting these errors – against the need to protect the appellants’ rights

to due process. Our review of the record below further illustrates that the district court

(1) identified the significant duration caused by the plaintiff’s delays; (2) warned

appellants on two occasions that failure to follow court orders could result in appropriate

sanctions, including, the warning, by its order to show cause, that further delays may

result in a dismissal; and (3) considered the defendants’ prejudice from the delay. And

while the district court nowhere expressly stated which lesser sanctions it had considered,

the court made clear that it regarded dismissal as a last resort, and cited the

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ineffectiveness of previous efforts to correct appellants’ behavior. Moreover, the court’s

express recognition of that factor, evaluated in light of the record as a whole – including

the court’s long patience with appellants’ sometimes belated efforts to correct some of

their missteps – illustrates that the district court had already taken var lesser steps in an

effort to address appellants’ casual approach to federal litigation.

       Accordingly, we conclude that the district court did not abuse its discretion by

dismissing the complaint. We have reviewed the appellants’ remaining arguments and

find them to be without merit. For the foregoing reasons, the judgment is AFFIRMED.


                                     FOR THE COURT:
                                     Catherine O’Hagan Wolfe, Clerk of Court




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