TANYA GALLO v. CAMELOT OF STATEN ISLAND INC (2025)

REPORT AND RECOMMENDATION

Presently before the Court, on a referral from the Honorable LaShann DeArcy Hall, U.S. District Judge, is Defendant Camelot of Staten Island's motion to dismiss due to pro se Plaintiff Tanya Gallo's failure to prosecute this action. See Dkt. No. 46; Nov. 7, 2025 Dkt. Order. For the reasons set forth below, the undersigned respectfully recommends that Defendant's motion be granted in part and denied in part.

I. Relevant Background

Plaintiff—then-represented by counsel—commenced this action on October 18, 2023, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended (“Title VII”), the New York State Human Rights Law, N.Y. Executive. Law § 296 et seq. (“NYSHRL”), and New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. (“NYCHRL”), because of “injuries Plaintiff has suffered as a result of sexual orientation-based hostile work environment and retaliation.” Dkt. No. 1.

On February 15, 2024, the undersigned held an initial status conference and set a discovery schedule. Minute Entry dated Feb. 15, 2024. The parties provided the Court with status updates on March 29, 2024; April 26, 2024; and May 20, 2024. See Dkt. Nos. 12, 13, and 14.

On June 28, 2024, one of Plaintiff's two attorneys moved to withdraw as counsel for Plaintiff. See Dkt. Nos. 15-16. The Court granted that motion, in part, the same day, permitting the attorney to withdraw, but declining Plaintiff's request to stay the case. See Text Order dated June 28, 2024. Plaintiff's second attorney moved to withdraw as counsel on July 1, 2024, after which the Court scheduled an in-person status conference for July 26, 2024 and directed Plaintiff's counsel to inform Plaintiff of the conference. See Dkt. No. 17; Text Order dated July 2, 2024. The Court subsequently granted Plaintiff's second attorney's motion to withdraw as counsel. See Text Order dated July 2, 2024.

On July 24, 2025, the Court entered the following order:

At approximately 6:44 PM on July 24, 2024, Plaintiff contacted the Chambers of Magistrate Judge Joseph A. Marutollo by phone and left a voicemail advising the Court that, due to a recently-sustained fracture requiring medical attention, she is unable to attend the status conference scheduled to be held on July 26, 2024 at 11:00 AM. In light of Plaintiff's representations and her recent status as a pro se litigant, the July 26, 2024 status conference is adjourned sine die.

By August 2, 2024, the parties shall meet and confer to submit a joint-status report apprising this Court of the status of discovery and whether Plaintiff's deposition has occurred in light of Defendant's letter dated July 2, 2024. Dkt. No. 18. The Court shall reschedule the status conference upon receipt of the parties’ status report.

Defendant is directed to serve a copy of this Order on Plaintiff and file an affidavit of service on the docket by 5:00 p.m. on July 25, 2024.

Text Order dated July 24, 2024. Defendant filed proof of service on Plaintiff on July 25, 2024. See Dkt. No. 20.

On August 2, 2024, the parties’ status report indicated that Plaintiff informed Defendant that she “broke a bone in her shoulder/arm and needs to be on bed rest for [two] to [three] weeks, followed by physical therapy.” Dkt. No. 21. The Court then extended the deadline to complete all discovery, to October 31, 2024. See Text Order dated Aug. 2, 2024. Defendant served the Court's August 2, 2024 order on Plaintiff. See Dkt. No. 22.

On September 10, 2024, Defendant filed a status report indicating multiple, unsuccessful attempts to schedule Plaintiff's deposition. See Dkt. No. 23. Defendant attached therewith a letter from Plaintiff to Defendant, wherein Plaintiff claimed that she would be unable to schedule a deposition for “around 6 weeks” because she was now serving as her grandmother's caretaker. See Dkt. No. 23 at 3.¹ In response, the Court scheduled a telephonic status conference for September 12, 2024. See Scheduling Order dated Sep. 10, 2024. Defendant served the Court's scheduling order on Plaintiff and filed proof of the same. See Dkt. No. 25.

On September 12, 2024, the Court held a telephonic status conference. See Minute Entry dated Sep. 12, 2024. Plaintiff did not initially appear, but the Court contacted her and she eventually joined the conference via phone. See id. During the status conference, the Court ordered Plaintiff to appear for a deposition conducted by Defendants’ counsel, on October 22, 2024. See id.

On October 23, 2024, Defendant filed a status report indicating that on October 21, 2024, Plaintiff advised that she would not be appearing for the October 22, 2024 deposition, as her “aunt and Godmother had just passed away [that] morning.” See Dkt. No. 26 at 3. Defendant sought leave to move for relief pursuant to Federal Rule of Civil Procedure 37, including dismissal of this action, in light of the imminent discovery deadline and Plaintiff's failure to appear at the October 22, 2024 deposition. See id. at 1.

The Court deemed Defendant's request as premature and briefly extended the discovery deadline to November 14, 2024, to permit additional time to depose Plaintiff. See Text Order dated Oct. 23, 2024.

On November 14, 2024, Defendant filed a letter with the Court indicating that Plaintiff had ceased all communications with Defendant since October 24, 2024. See Dkt. No. 27. In response, the Court ordered an in-person status conference for November 21, 2024. See Scheduling Order dated Nov. 21, 2024. Defendant served a copy of the Court's scheduling order on Plaintiff. See Dkt. No. 29.

Plaintiff failed to appear for the November 21, 2024 in-person status conference. See Minute Entry dated Nov. 21, 2024. The Court then ordered Plaintiff to file, by December 6, 2024, “a letter with the Court in which she shows cause as to why she failed to appear at the November 21, 2024 conference.” Id. Defendant served this order on Plaintiff. See Dkt. No. 29.

No response from Plaintiff was filed. On December 11, 2024, Defendant filed a letter seeking leave to move for relief pursuant to Rule 37. See Dkt. No. 30. On the same date, the Court ordered Plaintiff to “show cause, by December 18, 2024, why this case should not be dismissed due to Plaintiff's failure to prosecute and failure to comply with Court orders.” Text Order dated Dec. 11, 2024. Defendant served the Court's second order to show cause on Plaintiff. See Dkt. No. 31.

On December 26, 2024, Defendant filed a letter indicating that Plaintiff acknowledged to Defendant receipt of the December 11, 2024 order to show cause, and that she stated via email that she would “show just cause before the deadline.” See Dkt. No. 32 at 1. Plaintiff, however, did not file anything with the Court. See id. Plaintiff also emailed Defendant on December 21, 2024, indicating that she allegedly has suffered “physical ailments that have led to debilitating symptoms and at times hospitalization over the last several months[.]” Id. at 1. Plaintiff also emailed Defendant on December 22, 2024 accusing Defendant of witness intimidation. Id. at 2.

On December 26, 2024, the Court set an in-person status conference for January 7, 2025, and again noted that Plaintiff's failure to appear at the status conference “may result in the Court recommending dismissal of this action due to her failure to prosecute.” Text Order dated Dec. 26, 2024. Defendant served this order on Plaintiff. See Dkt. No. 33. Plaintiff, however, failed to appear. See Minute Entry dated Jan. 7, 2025.

Following the conference, the Court ordered as follows:

By January 10, 2025, Plaintiff shall file a letter with the Court in which she shows cause as to why she failed to appear at the January 7, 2025 conference. Plaintiff's filing shall be on the docket; emails to Defendant's counsel are not sufficient. Should Plaintiff fail to file the aforementioned letter by January 10, 2025, Defendant shall file a request for a pre-motion conference letter related to Plaintiff's failure to prosecute this action and failure to comply with multiple Court orders. Defendant shall comply with Judge DeArcy Hall's individual practice rules regarding the pre-motion conference letter.

Text Order dated Jan. 7, 2025. Defendant served this order on Plaintiff. See Dkt. No. 35.

On January 23, 2025, Defendant filed a request for a pre-motion conference in anticipation of its motion to dismiss this action for failure to prosecute. See Dkt. No. 36. The Court then set a pre-motion conference date of April 1, 2025, and directed the Clerk of Court to email Plaintiff with its order. See Mar. 27, 2025 Scheduling Order.

Plaintiff again failed to appear for the April 1, 2025 conference. See Minute Entry dated Apr. 1, 2025. The Court directed Plaintiff to file a letter explaining her failure to appear by April 8, 2025, and set a briefing schedule for Defendant's anticipated motion to dismiss for failure to prosecute. See id.

On April 2, 2025, Defendant filed a letter in which it requested approval of a proposed stipulation of dismissal of this action. See Dkt. No. 38. Defendant attached an email from Plaintiff, dated April 1, 2025, in which she stated that she was “on board for a dismissal,” as she did not “have the resources to continue with this process.” Dkt. No. 38-2. Plaintiff did not, however, sign the proposed stipulation of dismissal. See Dkt. No. 38-1.

The Court held another status conference on May 13, 2025; Plaintiff had been served with a copy of the order scheduling said conference. See Minute Entry dated May 13, 2025; Dkt. No. 44. Plaintiff again failed to appear. See Minute Entry dated May 13, 2025. The Court set a revised briefing schedule for Defendant's motion to dismiss for failure to prosecute. Id. Defendant filed its motion on May 20, 2025. See Dkt. Nos. 46, 47. Plaintiff failed to file any opposition to Defendant's motion. November 7, 2025, the District Judge DeArcy Hall referred Defendant's motion to the undersigned for a report and recommendation. See Referral Order dated Nov. 7, 2025.

II. Discussion

A. Defendant's Motion pursuant to Rule 41(b)

i. Legal Standard

Defendant first seeks dismissal of this action under Rule 41(b) of the Federal Rules of Civil Procedure. See Dkt. No. 46. Rule 41(b) provides that a case may be involuntarily dismissed if a plaintiff “fails to prosecute or to comply with these rules or a court order.” Fed. R. Civ. P. 41(b); see also Schwartz v. AMF Bowling Centers, Inc., No. 19-CV-7096 (WFK) (JAM), 2025 WL 1682269, at *3-4 (E.D.N.Y. June 16, 2025), report and recommendation adopted, 2025 WL 1826568 (E.D.N.Y. Jul. 2, 2025); Nielsen v. J.C. Penny Co., Inc., No. 23-CV-5619 (JGLC) (HJR), 2025 WL 868495, at *2 (S.D.N.Y. Mar. 20, 2025), report and recommendation adopted, No. 23-CV-5619 (JGLC), 2025 WL 1265807 (S.D.N.Y. Apr. 30, 2025) (applying court's inherent authority to dismiss case for failure to prosecute). A dismissal under Federal Rule of Civil Procedure 41(b) is a “harsh remedy to be utilized only in extreme situations.” LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citation omitted).

Before exercising its discretionary authority to dismiss for failure to prosecute, a district court “considering a Rule 41(b) dismissal must weigh five factors.” Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014). Specifically, the district court must weigh:

(1) the duration of the plaintiff's failure to comply with the court order, (2) whether 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.

Id. (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). No single factor is dispositive. See Nita v. Conn. Dep't of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994).

The Second Circuit has held that district courts should generally afford pro se litigants “special solicitude.” Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (citations omitted). “Dismissal of a pro se litigant's action may be appropriate ‘so long as a warning has been given that non-compliance can result in dismissal.’ ” Id. (citation omitted); see also Zeigler v. Annucci, No. 23-CV-707 (KMK), 2025 WL 1056904, at *2 (S.D.N.Y. Apr. 8, 2025) (“While the Second Circuit has cautioned that pro se plaintiffs should be granted special leniency regarding procedural matters,” courts “have recognized that [ ] even pro se litigants must prosecute claims diligently, and dismissal with prejudice is warranted where the Court gives warning.”) (cleaned up and internal citations omitted)).

ii. Analysis

Here, all five of the Baptiste factors weigh in favor of dismissal.

As to the first factor, Plaintiff has been non-compliant with Court orders for over a year, since November 2024. In this Circuit, even a delay of a few months can warrant dismissal. See, e.g., Zappin v. Doyle, 756 F. App'x 110, 112 (2d Cir. 2019) (“Case law ․ supports a conclusion that a 49-day delay could be significant and could weigh in favor of dismissal” for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure); Prophete v. New York City Health & Hosps., No. 23-CV-11117 (RA), 2025 WL 315958, at *2 (S.D.N.Y. Jan. 28, 2025) (finding dismissal appropriate when Plaintiff had been unresponsive for three months); Singelton v. City of New York, No. 14-CV-9355 (DLC), 2015 WL 9581781, at *2 (S.D.N.Y. Dec. 30, 2015) (dismissing an action under Rule 41(b) where “[t]he plaintiff has not meaningfully communicated with the defendants for over two months” and had not communicated with the court in over two months); Toliver v. Okvist, No. 10-CV-5354 (DAB) (JCF), 2014 WL 2535111, at *2 (S.D.N.Y. June 5, 2014) (recommending dismissal of a case under Rule 41(b), where the plaintiff's response to a court order was five weeks overdue), report and recommendation adopted, 2015 WL 8543103 (S.D.N.Y. Dec. 10, 2015). Plaintiff's pro se status does not excuse her noncompliance with Court orders. See Agiwal, 555 F.3d at 302 (citation omitted) (“All litigants, including pro ses, have an obligation to comply with court orders, and failure to comply may result in sanctions, including dismissal with prejudice.”); Gibson v. City of New York, No. 21-CV-4251 (GHW) (BCM), 2022 WL 3566493, at *2 (S.D.N.Y. Aug. 3, 2022) (“[L]ike all litigants, pro se parties ‘have an obligation to comply with court orders. When they flout that obligation they ․ must suffer the consequences of their actions.’ ” (citation omitted)), report and recommendation adopted, 2022 WL 3549875 (S.D.N.Y. Aug. 18, 2022).

As to the second factor, Plaintiff has received adequate notice that her failure to comply with court orders may result in dismissal of this action. On December 11, 2024 and again on December 26, 2024, the Court noted that dismissal may result if Plaintiff failed to comply with Court orders. See Order to Show Cause dated Dec. 11, 2024; Scheduling Order dated Dec. 26, 2024. Such notices are sufficient to satisfy the second Baptiste factor. See Hunter v. New York State Dep't of Corr. Servs., 515 F. App'x 40, 43 (2d Cir. 2013) (holding that two notices that an action could be dismissed provided sufficient notice).

As to the third factor, Plaintiff's repeated failure to appear permits the Court to presume as a matter of law that Defendant will be prejudiced by further delay. “Courts may presume such prejudice where, as here, [Plaintiff] has caused an ‘unreasonable delay.’ ” Wilson v. Doe 1-4, No. 21-CV-5170 (RPK), 2022 WL 2065030, at *2 (E.D.N.Y. June 8, 2022) (citations omitted); see, e.g., Caussade v. United States, 293 F.R.D. 625, 630-31 (S.D.N.Y. 2013) (“Where a plaintiff has become inaccessible for months at a time, courts presume prejudice.” (collecting cases)).

As to the fourth factor, this factor is satisfied because Plaintiff has been provided myriad opportunities to be heard, but has been unresponsive to the Court for over a year. In making this determination, courts look to whether the plaintiff has had the opportunity to be heard, and to the plaintiff's interest in continuing to prosecute the case. Caussade, 293 F.R.D. at 631. Here, despite continuous and direct notifications of this Court's orders, Plaintiff has ignored the Court's directives for over a year, demonstrating a clear lack of interest in pursuing the case. See Velt Corp. v. United States, No. 19-CV-5463 (MKB) (ST), 2020 WL 8413513, at *3 (E.D.N.Y. Dec. 7, 2020), report and recommendation adopted, 2020 WL 7639962 (E.D.N.Y. Dec. 23, 2020) (“The Plaintiff has shown no interest in litigating this case as he has failed to move the case forward and has not so much as filed a status report since the matter's inception more than a year ago.”). Moreover, Plaintiff herself has told Defendant that she was “on board for dismissal.” Dkt. No. 38-2. Plaintiff's repeated, knowing refusal to respond to the Court's orders tips the balance in favor of clearing this stagnant case from the Court's docket due to Plaintiff's failure to prosecute.

As to the final factor, a lesser sanction would not be effective in forcing Plaintiff's compliance with Court orders. Courts in this Circuit have found that no sanction less than dismissal is warranted where the plaintiff has “effectively disappeared” and is no longer communicating with the court, despite repeated orders to comply. Velt Corp., 2020 WL 8413513, at *3; see also Lewis v. Experian Info Sols., Inc., No. 23-CV-857 (AMD) (LKE), 2024 WL 4593424, at *3 (E.D.N.Y. Oct. 28, 2024) (explaining that a “lesser sanction is unlikely to remedy the prejudice resulting from [the plaintiff's] delay and failure to comply with court orders”).

The Court has an obligation “to secure the just, speedy, and inexpensive determination of every action ․” Fed. R. Civ. P. 1. In light of the evaluation of the five factors above, Plaintiff's non-compliance warrants dismissal.

B. Defendant's Application pursuant to Rule 37(b)(2)

Defendant also seeks dismissal under Rule 37(b)(2) of the Federal Rules of Civil Procedure. See Dkt. No. 46. Rule 37(b)(2)(a) provides for the dismissal of an action where a disobedient party fails to obey an order to provide or permit discovery. See Fed. R. Civ. P. 37(b)(2)(A). When considering a motion for such discovery sanctions, courts evaluate the four Agiwal factors: “(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.’ ” Agiwal, 555 F.3d at 302. “[T]here is little distinction whether the dismissal is technically made under Rule 41 or Rule 37.” Peters-Turnbull v. Bd. of Educ. of City of New York, 7 F. App'x 107, 110 (2d Cir. 2001). But dismissal under Rule 37 requires the court to find “willfulness, bad faith, or any fault” on the part of the party failing to comply with discovery. See Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir. 1986).

Here, the undersigned respectfully recommends that there is no need to address Defendant's Rule 37(b)(2) motion at this stage, given the above recommendation regarding the grant of Defendant's Rule 41(b) motion. Further, in light of Plaintiff's allegations regarding her own medical and financial issues, there is no need to address the willfulness of Plaintiff's failure to adhere to discovery orders, especially without additional briefing about Plaintiff's mental, medical, and financial state. See, e.g., Henry F. v. Woodlick, No. 13-CV-4261 (NGG) (RML), 2014 WL 5878122, at *6 (E.D.N.Y. Nov. 12, 2014) (“The court is reluctant to [dismiss under Rule 37]—particularly with no briefing on the topic—where the possibility remains that Plaintiff's failure to remain in contact with his counsel and to appear for his deposition is the result of mental or physical illness, rather than willfulness or bad faith.”).

Accordingly, the undersigned respectfully recommends that no ruling on Defendant's Federal Rule of Civil Procedure 37(b) motion is needed at this stage, absent further briefing.

III. Dismissal without Prejudice

Defendants seek dismissal of this action with prejudice. See Dkt. No. 46-3. “When imposed, the sanction of dismissal ‘operates as an adjudication upon the merits,’ but may be without prejudice if so specified by the court imposing it.” Lyell, 682 F.2d at 42 (quoting Fed. R. Civ. P. 41(b)). It is also clearly established within this Circuit that pro se litigants “should be granted special leniency regarding procedural matters” in the context of Federal Rule of Civil Procedure 41(b). LeSane, 239 F.3d at 209.

Notwithstanding Plaintiff's failure to prosecute this action and her April 1, 2025 email stating that she was “on board for a dismissal” (Dkt. No. 38-2), the undersigned respectfully recommends that Plaintiff's claims be dismissed without prejudice. See Febrianti v. NYC Health & Hosps., No. 23-CV-06175 (JLR) (SDA), 2025 WL 2411982, at *4 (S.D.N.Y. Aug. 1, 2025), report and recommendation adopted, 2025 WL 2411101 (S.D.N.Y. Aug. 20, 2025) (recommending dismissal without prejudice in light of the plaintiff's pro se status). Indeed, with respect to failure to prosecute motions against pro se plaintiffs, courts have found dismissal without prejudice to be “a less harsh[ ] and more appropriate[ ] sanction.” Campbell v. City of New York, No. 21-CV-04056 (JLR), 2023 WL 2561510, at *2 (S.D.N.Y. Mar. 17, 2023); see also Reynel v. Barnhart, No. 01-CV-6482 (RLE), 2002 WL 2022429, at *1 (S.D.N.Y. Sept. 3, 2002) (concluding that a dismissal for failure to prosecute should be without prejudice “[g]iven the plaintiff's pro se status”). “Dismissal without prejudice adequately balances those interests in this case, by serving ‘the district court's need to clear its calendar without unduly penalizing a pro se litigant for failing to comply with a scheduling order.’ ” Wilson, 2022 WL 2065030, at *2 (quoting Thrall v. Cent. N.Y. Reg'l Transp. Auth., 399 F. App'x 663, 666 (2d Cir. 2010)).

Thus, the undersigned respectfully recommends that this action be dismissed without prejudice.

IV. Conclusion

For the foregoing reasons, the undersigned respectfully recommends that Defendant's motion to dismiss be granted, in part, to wit, this action be dismissed without prejudice for Plaintiff's failure to prosecute pursuant to Fed. R. Civ. P. 41(b).

Defendant shall mail a copy of this Report and Recommendation to Plaintiff via overnight mail and e-mail at the following addresses:

Tanya Gallo

996 Olympia Blvd.

Staten Island, NY 10306

Tanya Gallo

35 Corson Avenue

Staten Island, NY 10301

Email: tanyangallo27@gmail.com

Defendant shall file proof of service by December 12, 2025.

Any objections to this Report and Recommendation must be filed within 14 days after service of this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). See also Fed. R. Civ. P. 6(a) & (d) (addressing computation of days). Any requests for an extension of time for filing objections must be directed to Judge DeArcy Hall. Failure to file objections within fourteen days will preclude further review of this Report and Recommendation either by the District Court or the Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 145 (1985) (“a party shall file objections with the district court or else waive right to appeal”); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).

SO ORDERED.

FOOTNOTES

1.   Page citations are to the ECF-stamped pages, unless otherwise noted.

JOSEPH A. MARUTOLLO United States Magistrate Judge