     11-4783-cv
     Raber v. Merck, Sharp & Dohme Corp.

                              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
     TO 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, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 29th day of May, two thousand thirteen.
 4
 5   PRESENT:
 6              RAYMOND J. LOHIER, JR.,
 7              SUSAN L. CARNEY,
 8                    Circuit Judges,
 9              JED S. RAKOFF,*
10                    District Judge.
11   _____________________________________
12
13   Sarah Raber,
14
15                          Plaintiff-Appellant,
16
17                  v.                                              11-4783-cv
18
19   Merck, Sharp & Dohme Corp.,
20
21                    Defendant-Appellee.
22   _____________________________________
23

            *
              The Honorable Jed S. Rakoff, of the United States District Court for the Southern
     District of New York, sitting by designation.
 1
 2   FOR APPELLANT:                                    WILLIAM F. CASH, III (Timothy M.
 3                                                     O’Brien, on the brief), Levin, Papantonio,
 4                                                     Thomas, Mitchell, Rafferty & Proctor,
 5                                                     P.A., Pensacola, FL.
 6
 7   FOR APPELLEE:                                     PAUL F. STRAIN, Venable LLP,
 8                                                     Baltimore, MD; Theodore V.H. Mayer
 9                                                     and William J. Beausoleil, on the brief,
10                                                     Hughes Hubbard & Reed LLP, New
11                                                     York, NY.
12
13          Appeal from a judgment of the United States District Court for the Southern District

14   of New York (John F. Keenan, Judge).

15          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

16   AND DECREED that the judgment is AFFIRMED.

17          Plaintiff-appellant Sarah Raber appeals from the District Court’s judgment entered

18   October 21, 2011. On appeal, Raber argues that the District Court erred by dismissing her

19   case with prejudice for failure to prosecute. We assume the parties’ familiarity with the

20   facts and record of the prior proceedings, to which we refer only as necessary to explain our

21   decision to affirm.

22           We review for abuse of discretion the District Court’s October 21, 2011 dismissal

23   of Raber’s case for failure to prosecute. See United States ex rel. Drake v. Norden Sys.,

24   Inc., 375 F.3d 248, 254 (2d Cir. 2004). Because “dismissal for failure to prosecute is a

25   harsh remedy to be utilized only in extreme situations,” this Court has “fashioned guiding

26   rules that limit a trial court’s discretion in [that] context.” Id. (quotation marks omitted).

27   In Drake we explained that:

28
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 1          we review [a district court’s dismissal for failure to prosecute] by examining
 2          whether: (1) the plaintiff’s failure to prosecute caused a delay of significant
 3          duration; (2) plaintiff was given notice that further delay would result in
 4          dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the
 5          need to alleviate court calendar congestion was carefully balanced against
 6          plaintiff’s right to an opportunity for a day in court; and (5) the trial court
 7          adequately assessed the efficacy of lesser sanctions. No one factor is
 8          dispositive, and ultimately we must review the dismissal in light of the
 9          record as a whole.
10
11   Id. (citations omitted). However, “the district court is not required to discuss the factors

12   on the record.” Shannon v. Gen. Elec. Co., 186 F.3d 186, 194 (2d Cir. 1999).

13          The District Court was well aware of and considered the five Drake factors, which it

14   listed in its October 21, 2011 order of dismissal. Nevertheless, Raber contends primarily

15   that the court failed adequately to consider the availability of lesser sanctions. We are not

16   persuaded. The District Court’s dismissal order followed events that made outright

17   dismissal for lack of prosecution all but inevitable. First, during a conference in

18   mid-September 2011, counsel for Raber told the District Court that it would “have to

19   dismiss for lack of prosecution” due to Raber’s inability to appear for trial in November

20   2011. The District Judge nevertheless refrained from doing so immediately, asking

21   counsel instead for an update if Raber changed her decision not to proceed to trial.

22   Second, in a letter dated October 5, 2011, Raber unequivocally confirmed her intention not

23   to proceed to trial. Third, Merck submitted a letter to the District Court dated October 11,

24   2011, in which it requested an order dismissing Raber’s case under Rule 41(b) of the

25   Federal Rules of Civil Procedure for failure to prosecute. At oral argument on appeal,

26   Raber’s counsel acknowledged that Raber failed to respond to Merck’s letter request, even


                                                   3
 1   though she had ample time to do so. In short, as the District Court observed, Raber was

 2   fully “aware that her failure to appear for trial would trigger dismissal.” In addition,

 3   Raber fails to show that the District Court might have pursued realistic alternative

 4   sanctions. Further, on this record, the District Court properly found that granting Raber’s

 5   request would “delay moving forward, in both the Fosamax MDL generally and Raber’s

 6   case specifically,” and “serve no useful purpose.” Under these circumstances, the District

 7   Court did not abuse its discretion when it dismissed Raber’s case with prejudice.

 8          We have considered Raber’s remaining arguments and conclude that they are

 9   without merit. For the foregoing reasons, the October 21, 2011 order of the District Court

10   is AFFIRMED.

11                                             FOR THE COURT:
12                                             Catherine O’Hagan Wolfe, Clerk
13




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