United States of America, ex rel. Najmuddin Pervez v. Maimonides Medical

SUMMARY ORDER

Defendant-Appellant Maimonides Medical Center (“Maimonides”) appeals from the March 12, 2010 judgment of the district court dismissing the complaint without prejudice pursuant to Rule 12(b)(5) for insufficient service of process. On appeal, Maimonides argues that the district court abused its discretion in denying its motion to dismiss the complaint with prejudice pursuant to Federal Rule of Civil Procedure 41(b). We assume the parties’ familiarity with the facts and procedural history of this case.

An action may be subject to dismissal with prejudice pursuant to Rule 41(b) for failure to prosecute where the plaintiff has allowed the action to lie dormant without any significant activity or has engaged “in a pattern of dilatory tactics.” Lyell The-atre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). We have observed that “dismissal for failure to prosecute is a ‘harsh remedy to be utilized only in extreme situations.’ ” United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004) (quoting Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)); see also Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980) (stating that dismissal for failure to prosecute is “pungent, rarely used, and conclusive”). We review a district court’s denial of a motion to dismiss under Rule 41(b) for abuse of discretion. See Lewis v. Rawson, 564 F.Sd 569, 575 (2d Cir. 2009).

To determine whether to dismiss a claim with prejudice pursuant to Rule 41(b), courts apply the well-established, five-factor Drake test: “whether: (1) the plaintiffs 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 plaintiffs right to an opportunity for a day in court; and (5) ... the efficacy of lesser sanctions. No one factor is dispositive, and ultimately we must review the dismissal in light of the record as a whole.” Drake, 375 F.3d at 254 (citations omitted).

Upon our review of the record, we conclude that the district court’s application of the Drake factors was a proper exercise of its discretion. The district court therefore did not abuse its discretion in denying Maimonides’s motion to dismiss with prejudice pursuant to Rule 41(b). We have considered Maimonides’s remaining arguments and find them to be without merit. For substantially the reasons stated by the district court in its opinion dated March 9, 2010, United States ex rel. Pervez v. Maimonides Med. Ctr., No. 06 Civ. *318 4989(LAP), 2010 WL 890236 (S.D.N.Y. Mar.9, 2010), the judgment of the district court is AFFIRMED.