RIDGECREST LLC v. OVERTON FIRM LLC (2025)

ORDER

Due to Plaintiff's counsel's failure to obey Court orders, including failing to appear, the Court dismisses this case with prejudice. This case began in federal court when Defendants removed the action from state court on January 22, 2025. Defendants notified Plaintiff of the removal on the same date via the state court e-filing system, as reflected in the state docket. (See Resp. To Order Re Removal dated Mar. 11, 2025 (“Resp.”), Dkt. No. 13-2 (reflecting email receipt of Notice of Removal by Plaintiff's counsel on Jan. 22, 2025)). Because the removal papers contained the name and contact information of Plaintiff's counsel, Joseph Obermeister, who is not a member of the bar of this Court, his name and address were added to the docket. (Notice of Removal dated Jan. 22, 2025, Dkt. No. 1-1 at 1).

On January 23, the Clerk's Office mailed a notification to Obermeister at that address, directing him to apply for admission to the Eastern District, and sent him the docket sheet, which reflected that the case was removed and pending here. (Clerk's Notice to Joseph Obermeister dated Jan. 23, 2025). Following removal, Defendants sought an extension of time to answer on January 28. (Mot. for Extension of Time dated Jan. 28, 2025, Dkt. No. 7). That request for an extension was served via email on Obermeister, and Defendants’ counsel noted that they had contacted Obermeister—who consented to the extension—to also tell him about the Clerk's Office's order directing him to seek admission. (Id. at 1 n.1, 2).

On March 3, because this case had only been assigned to a Magistrate Judge through the Court's pilot program for direct assignment, Defendants requested the assignment of a District Judge. (Letter dated Mar. 3, 2025, Dkt. No. 8). Defendants also mailed that request to Obermeister. (Certificate of Service dated Mar. 3, 2025, Dkt. No. 10). As of that date—nearly six weeks after the case had been removed—neither Obermeister, nor any other counsel, made any attempt to appear on behalf of Plaintiff, and Obermeister continued to ignore the order of the Clerk's Office to seek admission. A few days later, on March 7, Defendants filed a letter for a premotion conference, seeking to dismiss the case. (Req. for Premotion Conf. dated Mar. 7, 2025, Dkt. No. 12). Under the Individual Practices of the undersigned, a response was due from Plaintiff within seven calendar days. Individual Practices of Judge Sanket J. Bulsara (Civil), § VI(G)(1). As of April 22, 2025, no response has been filed.

On March 25, the Court separately ordered Plaintiff's counsel to file a Rule 7.1 statement—because he had failed to do so, and the sole basis for jurisdiction in the case is diversity—and file any opposition to the request for premotion conference. (Order dated Mar. 25, 2025). The Court warned Obermeister that failure to make a Rule 7.1 statement filing could lead to dismissal with prejudice of his client's case. (Id.). The deadline to respond was April 1, 2025. (Id.). As of April 22, 2025, Plaintiff has not filed any Rule 7.1 statement or opposition to the request for premotion conference, despite Plaintiff's counsel receiving this order (and the entire docket sheet) by FedEx Overnight and email. (Certificate of Service dated Mar. 26, 2025, Dkt. No. 16).

In short, Plaintiff's counsel—and therefore Plaintiff—has violated several court orders. Counsel has not filed a notice of appearance, as required by Local Rule 1.4, in the three months since removal. For that entire period, he has ignored the Clerk's Office's order that he apply for admission to the case, despite being warned of the need to do so by the Clerk's Office and Defendants’ counsel. No response to the motion for premotion conference has ever been filed. And finally, Plaintiff's counsel has ignored the directive to file a Rule 7.1 statement, which is required to confirm this Court's subject matter jurisdiction.

Rule 16 provides that a “court may issue any just orders ․ if a party ․ fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C). Sanctions for such misconduct include dismissal. See id. 16(f) (adopting the sanctions authorized by Rule 37(b)(2)(A)(v)); see id. 16(f) advisory committee's note to 1983 amendment (“Rule 16(f) incorporates portions of Rule 37(b)(2)[.]”); Fonar Corp. v. Magnetic Plus, Inc., 175 F.R.D. 53, 55 (S.D.N.Y. 1997) (collecting cases) (“[T]he standards to be applied in imposing sanctions under Rule 16 are identical to the familiar standards contained in Rule 37.”). And dismissal with prejudice is warranted “when a court finds willfulness, bad faith, or any fault by the non-compliant litigant.” Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (quotations omitted) (“[F]ailure to comply [with court orders] may result in sanctions, including dismissal with prejudice.”)

The Court considers several factors in determining whether to impose a sanction of dismissal with prejudice: “(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the non-compliant party had been warned of the consequences of ․ noncompliance.” Id. (quotations omitted); accord S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010). Noncompliance is willful where the party has received notice of a court's orders and repeatedly failed to comply. See Coach Inc. v. O'Brien, No. 10-CV-6071, 2011 WL 6122265, at *3 (S.D.N.Y. Nov. 28, 2011) (“The Court deems the noncompliance willful given that these orders were mailed directly to [defendant's] address, and yet she repeatedly failed to comply.”). Non-efficacy of lesser sanctions, duration of noncompliance, and warnings to Plaintiff all also support dismissal with prejudice.

Normally, when counsel has appeared, additional time to comply with court orders is warranted. But here, the Court cannot get Plaintiff's counsel to comply with even the most basic of obligations—entering a notice of appearance and seeking admission to practice in this Court. It goes without saying that fines or other sanctions would not be effective, since there is no way to enforce such a sanction against a lawyer who has never appeared in the first place, or who is not a member of the bar here. Were this the only failure, some lesser sanction would perhaps be warranted. But the failure to file a Rule 7.1 statement means the Court cannot confirm its subject matter jurisdiction. And Defendants have sought to dismiss the case, which they deem to be without merit, and Plaintiff has not bothered to respond, leaving the Court and the case in suspended animation. It has been a full three months since the case has been removed, and although that is a relatively short period of time, it has been filled with unilateral orders to Plaintiff's counsel from the Court and Clerk's Office—all of which have been ignored. There is no recourse left but dismissal.

In light of Plaintiff's violations of this Court's orders and the Clerk's Office's orders, the complete lack of activity by Plaintiff as required by the Local Rules, the passage of time, and the final warning of the consequence of a failure to comply, this action is dismissed with prejudice. See, e.g., Davis v. City of New York, No. 17-CV-3863, 2019 WL 7842400, at *8 (E.D.N.Y. Dec. 3, 2019), report and recommendation adopted, No. 17-CV-3863, 2020 WL 103525, at *2 (E.D.N.Y. Jan. 9, 2020) (dismissing plaintiff's claims with prejudice, inter alia, for failure to comply with numerous court orders); Union Mut. Fire Ins. Co. v. Morningstar Richmond LLC, No. 23-CV-5246, 2023 WL 8003333, at *3 (E.D.N.Y. Nov. 17, 2023) (dismissing sua sponte without prejudice because the court could not assess whether complete diversity was present, in part because parties failed to comply with Rule 7.1); Lopa v. Safeguard Props. Mgmt., LLC, Nos. 14-CV-3193 and Nos. 14-CV-3324, 2018 WL 3104456, at *12 (E.D.N.Y. May 16, 2018), report and recommendation adopted, No. 14-CV-3324, 2018 WL 3019875 (June 18, 2018), and report and recommendation adopted, No. 14-CV-3193, 2018 WL 3094940 (June 22, 2018) (dismissing plaintiff's claims with prejudice, inter alia, for failure to obey court orders).

BULSARA, United States District Judge: