11-3604-cv
Ampudia v. Lloyd et al.
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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
25th day of July, two thousand and thirteen.
PRESENT:
ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
RICHARD W. GOLDBERG,*
Judge.
_______________________________________________
ALEXIS AMPUDIA,
Plaintiff-Appellant,
-v.- No. 11-3604-cv
LAWRENCE LLOYD, ANDREW SHORE, PORT AUTHORITY OF NEW YORK AND NEW JERSEY, CITY
OF NEW YORK, NEW YORK POLICE DEPARTMENT,
Defendants-Appellees,
ROBERT MORGENTHAU, JEREMY SOLAND,
Defendants.
_______________________________________________
*
The Honorable Richard W. Goldberg, United States Court of International Trade, sitting by
designation.
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ALEXIS AMPUDIA, pro se.
PAMELA SEIDER DOLGOW, LISA M. RICHARDSON, ELLEN
RAVITCH, for MICHAEL A. CARDOZA, Corporation Counsel of
the City of New York, for Defendants-Appellees Lawrence
Lloyd, Andrew Shore, City of New York, and New York Police
Department.
Megan Lee, James M. Begley, New York, New York, for
Defendant-Appellee Port Authority of New York and New
Jersey.
Appeal from a judgment and order of the United States District Court for the Southern
District of New York (Cote, J.).
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED
that the order of the District Court is AFFIRMED.
Plaintiff-Appellant Alexis Ampudia (“Ampudia”), appearing pro se, brought suit pursuant
to 42 U.S.C. §1983, alleging that Defendants-Appellees violated his rights secured by the Fourth,
Sixth, Eighth and Fourteenth Amendments. He now appeals from a decision and order of the United
States District Court for the Southern District of New York (Cote, J.) dismissing his complaint for
failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). We assume the parties’
familiarity with the underlying facts and procedural history of the case, and with the issues on
appeal, which we discuss only as necessary to explain our decision to affirm.
* * *
Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss a complaint if
the plaintiff fails to prosecute or comply with a court order. We review a district court’s decision
to dismiss a case pursuant to Rule 41(b) for abuse of discretion. LeSane v. Hall’s Sec. Analyst, Inc.,
239 F.3d 206, 209 (2d Cir. 2001). While abuse of discretion review is generally deferential, “district
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courts should be especially hesitant to dismiss for procedural deficiencies where . . . the failure is
by a pro se litigant.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). A district court’s discretion
to dismiss a case under Rule 41(b) is cabined by a set of five factors that we consider in reviewing
the decision to dismiss. LeSane, 239 F.3d at 209. Those factors are:
[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.
Id. (alterations in original) (quoting Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930,
932 (2d Cir. 1988)). We consider the record as a whole, and no single factor is dispositive. A
district court need not discuss each factor on the record, but “a decision to dismiss stands a better
chance on appeal if the appellate court has the benefit of the court’s reasoning.” Lucas, 84 F.3d at
535. Here, the district court discussed the first four factors, but did not specifically address the
efficacy of lesser sanctions.
Upon reviewing the five factors, we conclude that the district court did not abuse its
discretion in dismissing Ampudia’s case for failure to prosecute. Ampudia skipped a scheduled
deposition on June 28, 2011 without giving notice, and subsequently stormed out of a re-scheduled
deposition on July 20, 2011 after only five minutes of preliminary questions, despite a court order
instructing him to appear and multiple reminders at the deposition that he was under a court order
to complete the deposition. As a result of these dilatory tactics, Defendants-Appellees were unable
to achieve any meaningful discovery from March 2, 2011, when the district set a timetable for
summary judgment motions, through July 29, 2011, when the district court dismissed the case—a
delay of several months. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982)
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(noting dismissal may be warranted where a “pattern of dilatory tactics” lasts several months).
Moreover, we have repeatedly noted that dismissals following unheeded warnings generally do not
constitute an abuse of discretion. See LeSane, 239 F.3d at 210; Lucas, 84 F.3d at 535. Nothing in
the record suggests we should depart from this rule here, where the district court explicitly provided
Ampudia with notice that his claims would be dismissed if he did not appear for his re-scheduled
deposition.
The final three factors also support dismissal of Ampudia’s claims. First, though prejudice
can be presumed as a matter of law where the delay is “lengthy and inexcusable,” United States ex
rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 256 (2d Cir. 2004), we need not invoke that
presumption here because Ampudia’s delay both prevented defendants from investigating the claims
and increased litigation costs to defendants, who had to expend resources preparing for the
depositions at which Ampudia did not testify. See LeSane, 239 F.3d at 210 (considering whether
“delay increased the litigation costs defendants had to bear or reduced (perhaps due to decaying
evidence) [defendants’] likelihood of success on the merits”). Second, unlike silent and unobtrusive
failures to prosecute in which the plaintiff simply does not file the requisite papers, Ampudia’s
conduct, including hanging up on opposing counsel and becoming irate and storming out of the
second deposition, was vexatious and burdensome to the district court tasked with managing his
case. See id. (noting that “vexatious and burdensome” failures to prosecute are more likely to cause
court congestion than “silent and unobtrusive” failures to prosecute). Third, even though the district
court did not explicitly contemplate whether any lesser sanction would be efficacious, we agree that
dismissal was an appropriate sanction in light of the fact that Ampudia had already ignored a
previous court order to appear for the deposition on July 20.
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We have reviewed Ampudia’s remaining arguments and find them to be without merit. For
the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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