16-1714
Lamont v. Edwards
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 ASUMMARY ORDER@). A PARTY CITING TO 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 10th day of May, two thousand seventeen.
Present:
JOHN M. WALKER, JR.,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
P. STEPHEN LAMONT, individually and as
Nominee of 100% of the Capital Shares of
Arumai Holdings, Inc.,
Plaintiff-Appellant,
v. 16-1714
ANN EDWARDS, in her individual and official
capacity, et al.,
Defendants-Appellees,
FRANK R. ALVAREZ, in his individual and official
capacity, et al.,
Defendants.
_____________________________________
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For Plaintiff-Appellant: P. Stephen Lamont, pro se, Rye, NY
For Defendants-Appellees: Caroline B. Lineen, Lewis R. Silverman,
Silverman & Associates, White Plains, New York,
for Defendants-Appellees Ann Edwards and Rye
City School District
James Castro-Blanco, Chief Deputy County
Attorney, and Thomas G. Gardiner, Senior
Assistant County Attorney, for Robert F. Meehan,
Westchester County Attorney, White Plains, New
York, for Defendants-Appellees Ramonita Reyes,
Marsha Brown-Mitchell, Leslie Farucci, County of
Westchester, Frank Vivola, Noreen Rothman, and
Anneliese Bonforte
Appeal from an order of the United States District Court for the Southern District of New
York (Seibel, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED.
Appellant P. Stephen Lamont (“Lamont”), proceeding pro se, appeals from the dismissal
of his action pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with multiple
district court orders directing that he, inter alia, refrain from email communications with parties to
the case, their counsel, or their affiliates without permission.1 We assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal.
We review a district court’s dismissal under Rule 41(b) for abuse of discretion. See Lewis
v. Rawson, 564 F.3d 569, 575 (2d Cir. 2009). While our review is deferential, we are mindful that
a Rule 41(b) dismissal is “a harsh remedy to be utilized only in extreme situations,” Jackson v. City
1
While the district court never explicitly indicated it was dismissing the action pursuant to Rule
41(b), on appeal the parties agree that this was the basis for dismissal.
2
of New York, 22 F.3d 71, 75 (2d Cir. 1994) (quoting Alvarez v. Simmons Mkt. Research Bureau,
Inc., 839 F.2d 930, 932 (2d Cir. 1988)), particularly when the offending party is a pro se litigant,
LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001).
Federal Rule of Civil Procedure 41(b) provides for involuntary dismissal “[i]f the plaintiff
fails to prosecute or to comply with the[] [federal] rules [of civil procedure] or a court order.” We
consider five factors “in light of the record as a whole” when reviewing a Rule 41(b) dismissal for
failure to comply: “(1) the duration of the plaintiff’s failure to comply with the court order; (2)
whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the
defendants are likely to be prejudiced by further delay in the proceedings; (4) a balancing of the
court’s interest in managing its docket with the plaintiff’s interest in receiving a fair chance to be
heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal.”
Spencer v. Doe, 139 F.3d 107, 112–13 (2d Cir. 1998). No single factor is dispositive. See U.S.
ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004).
As a threshold matter, we do not have jurisdiction to review the district court’s contempt
and show cause order, with which Lamont takes issue in his principal brief on appeal. That order
is interlocutory because it did not “end[] the litigation on the merits and leave[] nothing for the
court to do but execute the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)
(quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). Although interlocutory orders
typically “merge with the judgment for purposes of appellate review,” no such merger occurs
when an action is dismissed pursuant to Rule 41(b). Shannon v. Gen. Elec. Co., 186 F.3d 186,
192 (2d Cir. 1999).
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We conclude that the district court did not abuse its discretion in dismissing Lamont’s
complaint for failure to comply with multiple district court orders pursuant to Rule 41(b) because
the first, second, and fifth Spencer factors strongly favor dismissal. 2 Lamont engaged in a
persistent, six-month email campaign following the district court’s first order on the matter despite
repeated warnings; the district court warned Lamont on multiple occasions that ongoing
non-compliance with its orders could result in dismissal; and lesser sanctions, namely monetary
penalties, were imposed before the action was dismissed. Although the third and fourth Spencer
factors—prejudice to the defendants and docket management—do not favor dismissal as strongly
as the other factors, we nonetheless conclude that, “in light of the record as a whole,” Spencer, 139
F.3d at 112, dismissal was not an abuse of discretion here.
We have considered all of Lamont’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
2
In light of this determination, the motion of Defendants-Appellees Gregory A. Salent and Julie
Y. Low for an extension of time to file their briefs is denied as moot.
4