15‐1564‐cv Gaeta v. Incorporated Vill. of Garden City

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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of March, two thousand sixteen.

PRESENT: CHESTER J. STRAUB, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FRANK J. GAETA, Plaintiff‐Appellant, v. 15‐1564‐cv INCORPORATED VILLAGE OF GARDEN CITY, GARDEN CITY POLICE DEPARTMENT, COUNTY OF NASSAU, JOHN WEDRA, Police Officer, JOHN A. BARONE, Police Officer, JOHN DOE, No. 1, Police Officer, JOHN DOE, No. 2, Police Officer, fictitious names for two other Police Officers involved in this incident, Defendants‐Appellees.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

* The Clerk of Court is directed to amend the official caption to conform to the above. FOR PLAINTIFF‐APPELLANT: Frederick J. Martorell, Frederick J. Martorell, Esq. P.C., Brooklyn, New York.

DEFENDANTS‐APPELLEES Nicholas M. Cardascia, Ahmuty, Demers & INCORPORATED VILLAGE OF McManus, Albertson, New York. GARDEN CITY ET AL.:

DEFENDANT‐APPELLEE Robert F. Van der Waag, Deputy County COUNTY OF NASSAU: Attorney, for Carnell T. Foskey, Nassau County Attorney, Mineola, New York.

Appeal from the United States District Court for the Eastern District of

New York (Spatt, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the memorandum of decision and order of the

district court is AFFIRMED.

Plaintiff‐appellant Frank J. Gaeta appeals an April 16, 2015 memorandum

of decision and order of the district court denying his motion to reopen his civil case.

We assume the partiesʹ familiarity with the underlying facts, procedural history of the

case, and issues on appeal.

Gaeta commenced this action on May 1, 2003, asserting claims under

and state law arising out of his arrest on May 2, 2002 by Garden City

police officers for criminal impersonation and failing to signal before turning. With the

consent of all parties, Magistrate Judge Lindsay recommended that the case be

administratively closed pending completion of the underlying criminal charges,

directing the ʺparties to notify court when to restore this case to active docket.ʺ App. at

‐ 2 ‐ 8. On August 11, 2004, the district court adopted the recommendation and

administratively closed the action.

A jury found Gaeta guilty of criminal impersonation and a judgment was

entered on September 15, 2008. The Appellate Term of the New York State Supreme

Court affirmed that conviction on September 22, 2011. In July 2014, Gaeta first sought to

reopen his civil case. He did not successfully file a motion to reopen the case until

October 16, 2014. On April 16, 2015, the district court denied Gaetaʹs motion and

dismissed the action under Federal Rule of Civil Procedure 41(b) for failure to

prosecute. Gaeta timely filed a notice of appeal on May 12, 2015.

The district court denied the motion because of plaintiffʹs failure to

prosecute, employing the analysis applicable to a Rule 41(b) motion to dismiss. On

appeal, both sides analyze the denial of the motion to reopen as a grant of a Rule 41(b)

motion to dismiss. Accordingly, in reviewing the district courtʹs decision, we employ a

Rule 41(b) analysis and review for abuse of discretion. Lewis v. Rawson,

(2d Cir. 2009).

Although review for abuse of discretion ʺsuggests great deference,ʺ we

have recognized that a Rule 41(b) dismissal is a ʺharsh remedy [that] is appropriate only

in extreme situations.ʺ Lucas v. Miles,

(2d Cir. 1996). In reviewing a

Rule 41(b) dismissal, we consider whether: (1) plaintiffʹs 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

‐ 3 ‐ need to alleviate court calendar congestion was carefully balanced against plaintiffʹs

right to an opportunity for a day in court; and (5) the trial court adequately assessed the

efficacy of lesser sanctions. Lewis,

. No single factor is generally

dispositive, and we ultimately review the dismissal in light of the record as a whole.

See, e.g., United States ex rel. Drake v. Norden Sys., Inc.,

(2d Cir. 2004).

Upon our review of the record as a whole, we conclude that the district

court did not abuse its discretion in refusing to grant Gaetaʹs motion to reopen. Gaetaʹs

failure to prosecute caused significant delay. Though the state court proceedings took a

number of years to be completed, it was not until more than three years after the

Appellate Term affirmed that Gaeta formally moved to reopen this case. As to notice,

the district court found that the magistrate judge made it clear that it was up to the

parties to notify the court to request restoring the action. As the underlying events took

place in 2002, defendants surely were prejudiced by the extensive delay. Finally, the

district court determined that no sanction other than ʺdismissalʺ would be appropriate

because of the ʺsignificant prejudice to the Defendants in permitting a twelve‐year old

case to proceed.ʺ App. at 90.

We have reviewed Gaetaʹs remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the memorandum of decision and order of

the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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