         13-2407
         Hardaway v. Agyemong


                                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 the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       7th day of July, two thousand fourteen.
 4
 5       PRESENT:
 6                   JOSÉ A. CABRANES,
 7                   SUSAN L. CARNEY,
 8                   CHRISTOPHER F. DRONEY,
 9                         Circuit Judges.
10       _____________________________________
11
12       Lena Hardaway,
13                               Plaintiff-Appellant,
14
15                       v.                                                  13-2407
16
17       Albert Agyemong,
18
19                               Defendant-Appellee,
20
21       Robert Plan Corporation,
22
23                         Defendant.
24       _____________________________________
25
26
27       FOR PLAINTIFF-APPELLANT:                       Lena Hardaway, pro se, Washington, DC
28
29       FOR DEFENDANT-APPELLEE:                        No Appearance
30
31
 1           Appeal from a judgment of the United States District Court for the Eastern District of

 2   New York (John Gleeson, Judge; Lois Bloom, Magistrate Judge).

 3

 4           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 5   DECREED that the judgment of the District Court is AFFIRMED.

 6

 7           Appellant Lena Hardaway, proceeding pro se, appeals from the District Court’s judgment

 8   dismissing her complaint pursuant to Federal Rule of Civil Procedure 41(b), for failure to

 9   prosecute. We assume the parties’ familiarity with the underlying facts, the procedural history of

10   the case, and the issues on appeal.

11           As an initial matter, Hardaway has waived review of the Magistrate Judge’s Report and

12   Recommendation by failing to object to it after being given clear notice of the consequences.

13   United States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 38-39 (2d Cir. 1997) (failure to

14   timely object to a report and recommendation “may operate as a waiver of any further judicial

15   review of the decision, as long as the parties receive clear notice of the consequences of their

16   failure to object”); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992) (notice is sufficient if it

17   informs the litigants that the failure to timely object will result in the waiver of further judicial

18   review). While we may excuse this default in the interests of justice, see Roldan v. Racette, 984

19   F.2d 85, 89 (2d Cir. 1993), here, the interests of justice do not warrant excusing Hardaway’s

20   failure to object.

21           However, even if we were to excuse Hardaway’s failure to object, we would conclude

22   that the District Court acted within its discretion in adopting the Magistrate Judge’s


                                                        2
 1   recommendation of dismissal. We review a district court’s dismissal for failure to prosecute

 2   pursuant to Rule 41(b) for abuse of discretion, in light of the record as a whole. See Spencer v.

 3   Doe, 139 F.3d 107, 112 (2d Cir. 1998). Although review for abuse of discretion “suggests great

 4   deference,” we have recognized that a Rule 41(b) dismissal is a “harsh remedy [that] is

 5   appropriate only in extreme situations,” and that district courts therefore “should be especially

 6   hesitant to dismiss for procedural deficiencies where . . . the failure is by a pro se litigant.”

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

 8           In reviewing a Rule 41(b) dismissal, we consider whether: (1) the plaintiff’s failure to

 9   prosecute caused a delay of significant duration; (2) the plaintiff was given notice that further

10   delay would result in dismissal; (3) the defendant was likely to be prejudiced by further delay;

11   (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's right

12   to an opportunity to be heard in court; and (5) the trial court adequately assessed the efficacy of

13   lesser sanctions. Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009) (quoting United States ex

14   rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004)). While a district court is not

15   required to expressly discuss these factors on the record, “a decision to dismiss stands a better

16   chance on appeal if the appellate court has the benefit of the district court's reasoning.” Lucas,

17   84 F.3d at 535. Finally, in examining the above factors, no single factor is to be considered

18   dispositive. See Drake, 375 F.3d at 254.

19           Upon an independent review of the record and relevant case law, we conclude that the

20   District Court did not abuse its discretion by dismissing Hardaway’s complaint for failure to

21   prosecute. We therefore affirm, substantially for the reasons set forth by the Magistrate Judge in

22   her comprehensive Report and Recommendation, which was adopted in its entirety by the

23   District Court.
                                                        3
1          We have considered Hardaway’s remaining arguments and find them to be without merit.

2   Accordingly, we AFFIRM the judgment of the district court.

3                                             FOR THE COURT:
4                                             Catherine O’Hagan Wolfe, Clerk
5
6




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