10-1334-cv
United States of America, ex rel. Najmuddin Pervez v. Maimonides Medical Center
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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 23rd day
of March, two thousand eleven.
Present:
ROBERT D. SACK,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges,
________________________________________________
UNITED STATES OF AMERICA,
ex rel. NAJMUDDIN PERVEZ,
Plaintiff-Appellee,
v. No. 10-1334-cv
MAIMONIDES MEDICAL CENTER,
Defendant-Appellant,
DEF, ERNST & YOUNG, LLP,
Defendants.
________________________________________________
For Plaintiff-Appellee: PHILIP R. MICHAEL, Michael Law Group, New York,
N.Y.
For Defendants-Appellants: JAMES F. SEGROVES (Edward S. Kornreich and Roger
A. Cohen, New York, N.Y., on the brief), Proskauer
Rose LLP, Washington, D.C.
Appeal from the United States District Court for the Southern District of New York
(Preska, C.J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
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 Theatre 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”).
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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.3d 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 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 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 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. 4989(LAP), 2010 WL 890236
(S.D.N.Y. Mar. 9, 2010), the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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