UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

JASON FRANK ABAGNALE,

Plaintiff, No. 22-CV-611 (KMK) v. ORDER OF DISMISSAL MICHAEL A. KORNSTEIN, et al.,

Defendants.

KENNETH M. KARAS, United States District Judge: Jason Frank Abagnale (“Abagnale” or “Plaintiff”), proceeding pro se, brings this Action against Michael A. Kornstein, Cooper Erving & Savage LLP, and Citizens Bank, N.A. (collectively, “Defendants”), alleging wrongful foreclosure and breach of contract. (See generally Compl. (Dkt. No. 1).) Plaintiff filed his Complaint on January 23, 2022. (Id.) On March 1, 2022, the Court issued an Order of Service directing Plaintiff to serve the Summons and Complaint on each Defendant within 90 days of the issuance of the summonses. (Dkt. No. 4.) The Summons were issued on March 1, 2022. (See Dkt (entry for March 1, 2022).) To date, Defendants have not been served. (See generally Dkt.) Plaintiff has also not communicated with this Court since he filed his Complaint on January 23, 2022. (Id.) This Court has the authority to dismiss a case for failure to comply with. See Fed. R. Civ. P. 41(b). Rule 41(b) of the Federal Rules of Civil Procedure provides that a case may be involuntarily dismissed if a plaintiff “fails to prosecute or to comply with these rules or a court order.” See id. Although Rule 41(b) expressly addresses a situation in which a defendant moves to dismiss for failure to prosecute, it has long been recognized that a district court has the inherent authority to dismiss for failure to prosecute sua sponte. See LeSane v. Hall’s Sec. Analyst, Inc.,

(2d Cir. 2001) (citing Link v. Wabash R.R. Co.,

(1962)). While dismissal under Rule 41(b) is subject to the sound discretion of the district courts,

see U.S. ex rel. Drake v. Norden Sys., Inc.,

, 250–51 (2d Cir. 2004), the Second Circuit has stated that a Rule 41(b) dismissal is a “harsh remedy to be utilized only in extreme situations,” see LeSane,

(quotation mark omitted) (quoting Theilmann v. Rutland Hosp., Inc.,

(2d Cir. 1972)). The Second Circuit has further cautioned that “pro se plaintiffs should be granted special leniency regarding procedural matters.” LeSane,

(citing Lucas v. Miles,

(2d Cir. 1996)). “However, even pro se litigants must prosecute claims diligently, and dismissal with prejudice is warranted where the Court gives warning.” Jacobs v. Cty. of Westchester, No. 99-CV-4976,

, at *3 (S.D.N.Y. Jan. 22, 2008). Before exercising its discretionary authority to dismiss for failure to prosecute, a district

court should consider the following factors: [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.

Wood v. City of N.Y., No. 05-CV-2894,

, at *1 (S.D.N.Y. July 13, 2007) (alterations in original) (quotation marks omitted) (quoting LeSane,

); see also Hibbert v. Apfel, No. 99-CV-4246,

, at *2 (S.D.N.Y. July 17, 2000) (same). No single factor is dispositive. See Nita v. Conn. Dep’t of Envtl. Prot.,

, 485 (2d Cir. 1994). The Court concludes that these factors weigh in favor of dismissal of Plaintiff’s case for failure to serve Defendants. Plaintiff was directed on two occasions to serve Defendants and was instructed that a failure to do so could result in dismissal. (See Dkt. Nos. 4, 6.) Plaintiff has failed to comply with these Orders. (See generally Dkt.) However, in light of Plaintiff's pro se

status, dismissal without prejudice appropriately takes into account the efficacy of lesser sanctions. See Waters v. Camacho,

, 71–72 (S.D.N.Y. 2013) (“The sanction of dismissal without prejudice ... complies with the fifth factor, considering the efficacy of lesser sanctions.”). Accordingly, Plaintiff’s case is dismissed without prejudice for failure to prosecute. See Savatxath v. City of Binghamton, No. 12-CV-1492,

, at *1 (N.D.N.Y. Sept. 9, 2013) (dismissing case for failure to prosecute after the plaintiff “neglected to comply with an order . . . requiring him to notify the court . . . as to why th[e] action should not be dismissed for failure to prosecute”); Djokovic v. U.S. Justice Dep’t, No. 07-CV-2608,

, at *1–2 (E.D.N.Y. Aug. 6, 2008) (dismissing case for, among other reasons, failure to prosecute

where the plaintiffs were ordered to submit a letter stating “whether [they] intend[ed] to proceed with th[e] action,” but plaintiffs failed to submit such a letter); Lopez v. Catholic Charities of the Archdiocese of N.Y., No. 00-CV-1247,

, at *4 (S.D.N.Y. Jan. 22, 2001) (dismissing for failure to prosecute where plaintiff “ceased to prosecute [the] action at all” for three months). The Clerk of Court is directed to mail a copy of this Order to Plaintiff.

SO ORDERED. Dated: April 5, 2023 White Plains, New York ________________________________ KENNETH M. KARAS UNITED STATES DISTRICT JUDGE