USDC SDNY DOCUMENT SOUTHERN DISTRICT OF NEW YORK DOC #: nnn nnn nasa aa anna IK DATE FILED:_ 4/17/2023 NINORA LLC, : Plaintiff, : : 22-cv-9018 (LJL) -V- : : MEMORANDUM AND MT. HAWLEY INSURANCE COMPANY, : ORDER Defendants. :

LEWIS J. LIMAN, United States District Judge: The complaint in this case was originally filed in Florida state court on April 25, 2022. Dkt. No. 1. It was subsequently removed to the United States District Court for the Middle District of Florida on August 11, 2022. Id. Defendant Mt. Hawley Insurance Company (“Defendant”) then moved to transfer the case to the Southern District of New York. Dkt. No. 8. Plaintiff Ninora LLC (“Plaintiff”) did not oppose the motion to transfer. The Middle District of Florida transferred the case to this District on October 19, 2022. Dkt. No. 11. The Court scheduled an initial pretrial conference for November 18, 2022. Both Plaintiff and Defendant appeared. Plaintiff's counsel indicated that it was unclear whether they would represent Plaintiff in this District. The Court adjourned the initial pretrial conference to December 2, 2022. At that conference, Plaintiff did not appear, and the Court issued an order that Plaintiff show cause no later than December 27, 2022, as to why Plaintiff's case should not be dismissed for failure to prosecute. Dkt. No. 15. The Court further ordered that Plaintiff show cause at a telephonic hearing on January 6, 2023. Id. The order stated that “[flailure to appear may give rise to dismissal of the action without prejudice for failure to prosecute.” Id. Defendant also served the Court’s order on Plaintiff on December 12, 2022. Dkt. No. 16.

Plaintiff did not appear at the show cause hearing on January 5, 2023. Defendant timely filed its motion to dismiss for failure to prosecute, with supporting declaration and memorandum of law, on on January 20, 2023. Dkt. Nos. 17–19. Defendant served that motion on counsel for Plaintiff on January 20, 2023. Dkt. No. 20. Federal Rule of Civil Procedure 41 “permits the Court to dismiss an action . . . for failure

to prosecute . . . or failure to comply with an order of the Court.” Edwards v. Horn,

, at *1 (S.D.N.Y. Apr. 13, 2012), report and recommendation adopted,

(S.D.N.Y. May 4, 2012); Fed R. Civ. P. 41; see also Baptiste v. Sommers,

(2d Cir. 2014). “Dismissal for lack of prosecution or for failure to comply with an order of the court is a matter committed to the discretion of the district court.” Caussade v. United States,

(S.D.N.Y. 2013) (citing Link v. Wabash R.R. Co.,

(1962)). A court must consider five factors when determining whether dismissal for failure to prosecute is appropriate: 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. Lewis v. Rawson,

(2d Cir. 2009); see also Baptiste,

. Dismissal of this case for failure to prosecute is appropriate under these factors. After having filed its complaint, Plaintiff has not prosecuted its case since its removal to federal court on August 11, 2022. “There is no fixed period of time that must elapse before a plaintiff’s failure to prosecute becomes substantial enough to warrant dismissal,” Caussade,

(citation omitted), but “[d]elays of several months” have been found sufficient.

(collecting cases). Plaintiff was given notice in the Court’s order at Dkt. No. 15 that failure to show cause at the January 6, 2023 conference would result in dismissal. Further, “[p]rejudice to defendants resulting from unreasonable delay may be presumed.” Lyell Theatre Corp. v. Loews Corp.,

(2d Cir. 1982). Finally, the Court has “already given [Plaintiff] an opportunity to proceed with this action so that 1t would be decided on the merits,” and Plaintiff's “failure to prosecute and .. . failures to appear at court-ordered conferences demonstrate that any lesser sanction would be ‘an exercise in futility.”” Edwards,

, at *2 (quoting Koch v. Rodenstock,

, at *7 (S.D.N.Y. Apr. 23, 2010), report and recommendation adopted,

(S.D.N.Y. May 18, 2010). For the foregoing reasons, the case is dismissed for failure to prosecute. The Clerk of Court is respectfully directed to close Dkt. No. 17 and to close the case.

SO ORDERED. Dated: April 17, 2023 New York, New York LEWIS J. LIMAN United States District Judge