    11-3604-cv
    Ampudia v. Lloyd 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
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    25th day of July, two thousand and thirteen.

    PRESENT:

          ROSEMARY S. POOLER,
          DEBRA ANN LIVINGSTON,
                            Circuit Judges.
          RICHARD W. GOLDBERG,*
                            Judge.
    _______________________________________________

    ALEXIS AMPUDIA,

                                      Plaintiff-Appellant,

                     -v.-                                                        No. 11-3604-cv

    LAWRENCE LLOYD, ANDREW SHORE, PORT AUTHORITY OF NEW YORK AND NEW JERSEY, CITY
    OF NEW YORK, NEW YORK POLICE DEPARTMENT,

                                      Defendants-Appellees,

    ROBERT MORGENTHAU, JEREMY SOLAND,
                            Defendants.
    _______________________________________________



            *
            The Honorable Richard W. Goldberg, United States Court of International Trade, sitting by
    designation.

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                                       ALEXIS AMPUDIA, pro se.

                                       PAMELA SEIDER DOLGOW, LISA M. RICHARDSON, ELLEN
                                       RAVITCH, for MICHAEL A. CARDOZA, Corporation Counsel of
                                       the City of New York, for Defendants-Appellees Lawrence
                                       Lloyd, Andrew Shore, City of New York, and New York Police
                                       Department.

                                       Megan Lee, James M. Begley, New York, New York, for
                                       Defendant-Appellee Port Authority of New York and New
                                       Jersey.

       Appeal from a judgment and order of the United States District Court for the Southern

District of New York (Cote, J.).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

that the order of the District Court is AFFIRMED.

       Plaintiff-Appellant Alexis Ampudia (“Ampudia”), appearing pro se, brought suit pursuant

to 42 U.S.C. §1983, alleging that Defendants-Appellees violated his rights secured by the Fourth,

Sixth, Eighth and Fourteenth Amendments. He now appeals from a decision and order of the United

States District Court for the Southern District of New York (Cote, J.) dismissing his complaint for

failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). We assume the parties’

familiarity with the underlying facts and procedural history of the case, and with the issues on

appeal, which we discuss only as necessary to explain our decision to affirm.

                                             *    *   *

       Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss a complaint if

the plaintiff fails to prosecute or comply with a court order. We review a district court’s decision

to dismiss a case pursuant to Rule 41(b) for abuse of discretion. LeSane v. Hall’s Sec. Analyst, Inc.,

239 F.3d 206, 209 (2d Cir. 2001). While abuse of discretion review is generally deferential, “district


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courts should be especially hesitant to dismiss for procedural deficiencies where . . . the failure is

by a pro se litigant.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). A district court’s discretion

to dismiss a case under Rule 41(b) is cabined by a set of five factors that we consider in reviewing

the decision to dismiss. LeSane, 239 F.3d at 209. Those factors are:

         [1] the duration of the plaintiff's failures, [2] whether plaintiff had received notice
         that further delays would result in dismissal, [3] whether the defendant is likely to
         be prejudiced by further delay, [4] whether the district judge has take[n] care to
         strik[e] the balance between alleviating court calendar congestion and protecting
         a party's right to due process and a fair chance to be heard . . . and [5] whether the
         judge has adequately assessed the efficacy of lesser sanctions.

Id. (alterations in original) (quoting Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930,

932 (2d Cir. 1988)). We consider the record as a whole, and no single factor is dispositive. A

district court need not discuss each factor on the record, but “a decision to dismiss stands a better

chance on appeal if the appellate court has the benefit of the court’s reasoning.” Lucas, 84 F.3d at

535. Here, the district court discussed the first four factors, but did not specifically address the

efficacy of lesser sanctions.

       Upon reviewing the five factors, we conclude that the district court did not abuse its

discretion in dismissing Ampudia’s case for failure to prosecute. Ampudia skipped a scheduled

deposition on June 28, 2011 without giving notice, and subsequently stormed out of a re-scheduled

deposition on July 20, 2011 after only five minutes of preliminary questions, despite a court order

instructing him to appear and multiple reminders at the deposition that he was under a court order

to complete the deposition. As a result of these dilatory tactics, Defendants-Appellees were unable

to achieve any meaningful discovery from March 2, 2011, when the district set a timetable for

summary judgment motions, through July 29, 2011, when the district court dismissed the case—a

delay of several months. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982)

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(noting dismissal may be warranted where a “pattern of dilatory tactics” lasts several months).

Moreover, we have repeatedly noted that dismissals following unheeded warnings generally do not

constitute an abuse of discretion. See LeSane, 239 F.3d at 210; Lucas, 84 F.3d at 535. Nothing in

the record suggests we should depart from this rule here, where the district court explicitly provided

Ampudia with notice that his claims would be dismissed if he did not appear for his re-scheduled

deposition.

       The final three factors also support dismissal of Ampudia’s claims. First, though prejudice

can be presumed as a matter of law where the delay is “lengthy and inexcusable,” United States ex

rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 256 (2d Cir. 2004), we need not invoke that

presumption here because Ampudia’s delay both prevented defendants from investigating the claims

and increased litigation costs to defendants, who had to expend resources preparing for the

depositions at which Ampudia did not testify. See LeSane, 239 F.3d at 210 (considering whether

“delay increased the litigation costs defendants had to bear or reduced (perhaps due to decaying

evidence) [defendants’] likelihood of success on the merits”). Second, unlike silent and unobtrusive

failures to prosecute in which the plaintiff simply does not file the requisite papers, Ampudia’s

conduct, including hanging up on opposing counsel and becoming irate and storming out of the

second deposition, was vexatious and burdensome to the district court tasked with managing his

case. See id. (noting that “vexatious and burdensome” failures to prosecute are more likely to cause

court congestion than “silent and unobtrusive” failures to prosecute). Third, even though the district

court did not explicitly contemplate whether any lesser sanction would be efficacious, we agree that

dismissal was an appropriate sanction in light of the fact that Ampudia had already ignored a

previous court order to appear for the deposition on July 20.


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       We have reviewed Ampudia’s remaining arguments and find them to be without merit. For

the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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