11-2400-cv
Parnes v. Lumenis, 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.

           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
10th day of December, two thousand twelve.

PRESENT:     ROBERT D. SACK,
             DENNY CHIN,
             RAYMOND J. LOHIER, JR.,
                       Circuit Judges.

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LEO PARNES, LEO PARNES, D.O., P.C.,
MARC PARNES,
                    Plaintiffs-Appellants,

             -v.-                                     11-2400-cv

RECEIVABLE MANAGEMENT SERVICES LLC,
TRANS UNION, LLC, EXPERIAN INFORMATION
SOLUTIONS, INC, EQUIFAX INFORMATION
SERVICES, LLC,
                    Defendants,
LUMENIS, INC.,
                          Defendant-Appellee.

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FOR PLAINTIFFS-APPELLANTS:          Osita Emmanuel Okocha, New York, NY.

FOR DEFENDANT-APPELLEE:             Daniel S. Ratner, Heidell, Pittoni,
                                    Murphy & Bach LLP, New York, NY.

             Appeal from the United States District Court for the

Eastern District of New York (Feuerstein, J.).
           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Plaintiffs-appellants Leo Parnes, Leo Parnes, D.O., P.C.,

and Marc Parnes appeal from the district court's judgment entered

May 20, 2011, dismissing their claims against defendant-appellee

Lumenis, Inc. ("Lumenis").   The district court entered judgment

pursuant to its May 19, 2011 order overruling plaintiffs' objections

to Magistrate Judge William D. Wall's report and recommendation,

which recommended that the complaint be dismissed pursuant to Rule

41(b) of the Federal Rules of Civil Procedure for failure to

prosecute and failure to comply with discovery and other court

orders.   We assume the parties' familiarity with the facts,

procedural history, and specification of issues for review.

          We review an involuntary dismissal under Rule 41(b) for

abuse of discretion, Ruzsa v. Rubenstein & Sendy Attys at Law, 520

F.3d 176, 177 (2d Cir. 2008), although our review is less

deferential than in other contexts because of the severity of this

remedy, see Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).     The
district court's exercise of discretion in this respect must be

guided by consideration of five factors:

           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.


                                 -2-
United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254

(2d Cir. 2004).   None of these factors is dispositive, so "we must

review the dismissal in light of the record as a whole."    Id.

          We conclude that the district court did not abuse its

discretion in dismissing this case.     The court adequately considered

all five of these factors, and we agree that they favored dismissal.

          First, the delays were significant.     Lumenis filed its

answer to the amended complaint in July 2010 and little had been

accomplished by March 31, 2011, when Magistrate Judge Wall

recommended dismissal of the case.     See Lyell Theatre Corp. v. Loews
Corp., 682 F.2d 37, 42-43 (2d Cir. 1982) (explaining that dilatory

"conduct may warrant dismissal after merely a matter of months").

Plaintiffs failed to comply with their obligation to make complete

initial disclosures; they failed to produce evidence regarding their

patients' alleged injuries; their counsel claimed relevant

information was contained on a floppy disk, but could not open the

disk and never disclosed its contents; they failed to complete

discovery; and they failed to submit a pretrial order.     Moreover,

plaintiffs' counsel failed to appear for a pretrial conference on

March 31, 2011, and failed to return telephone calls from the

Magistrate Judge's chambers.   See Link v. Wabash R.R. Co., 370 U.S.
626, 633-35 (1962) (holding that district court had discretion to

dismiss for counsel's failure to appear at a pretrial conference

when coupled with earlier delays).

          Second, plaintiffs were warned that failing to disclose

the contents of the floppy disk would result in dismissal.


                                 -3-
Plaintiffs' counsel first claimed that the floppy disk contained

additional discoverable material at the pretrial conference on

November 17, 2010.    Because counsel still had not provided that

material to Lumenis by the conference held on December 3, the

district court directed him to disclose it within thirty days and

warned him that failure to do so could result in dismissal.     Not

only did plaintiffs miss that deadline, they did not engage in any

further discovery for nearly four months before the case was finally

dismissed.    Although plaintiffs' counsel alleges for the first time

on appeal that he delivered hard copies of these documents to

Lumenis, he did not provide the district court with copies of those

documents or any other proof to support that claim.

            Third, Lumenis would have been prejudiced by further

delay.    We may assume prejudice where there has been an unreasonable

delay, see Peart v. City of New York, 992 F.2d 458, 462 (2d Cir.
1993), but Lumenis also would have suffered actual prejudice.

Lumenis had already expended time and resources defending this

action and appearing at scheduled conferences while plaintiffs have
failed to carry out their obligations to diligently prosecute this

action.   Requiring Lumenis to continue doing so under these

circumstances would be prejudicial.

            Fourth, the district court properly balanced the effect on

court congestion against the plaintiffs' interest in their day in

court.    Requiring the court to police disclosure obligations and to

reschedule conferences clogs the court's docket and delays the

resolution of other cases.   To the extent plaintiffs were prejudiced


                                  -4-
by any failings of their attorney, they chose him to represent them

and must now suffer the consequences.    See Link, 370 U.S. at 633-34

("Petitioner voluntarily chose this attorney as his representative

in the action, and he cannot now avoid the consequences of the acts

or omissions of this freely selected agent.").1

            Finally, the district court believed, in light of the

plaintiffs' disregard for both the court's prior instructions and

the Magistrate Judge's attempts to remedy his absence, that lesser

sanctions would be inadequate to address plaintiffs' persistent

dilatory conduct.

            The district court did not abuse its discretion in

concluding that on whole the five factors weighed in favor of

dismissal.    We have considered plaintiffs' remaining arguments and

find them to be without merit.    Accordingly, we AFFIRM the judgment

of the district court.    We also grant Lumenis's pending motion and

order Plaintiffs to pay the costs for preparation of the

supplemental appendix.


                                 FOR THE COURT:

                                 Catherine O’Hagan Wolfe, Clerk




        1
             We do not decide whether counsel's derelictions in this
   case are grounds for a claim for malpractice.

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