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13-5562 - De Oliveira v. Syneron, Inc. et al


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13-5562 - De Oliveira v. Syneron, Inc. et al
March 9, 2016
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ORDER - The Court now adopts Judge Lindsays January 13, 2016 Report and Recommendation in its entirety; denies the Plaintiffs motion for a default judgment; and dismisses the complaint as against the Defendants Costa Tropical Beauty Spa, Inc. and Rosagela Slomski, without prejudice. Further, on December 7, 2015, the Defendant Syneron filed a motion pursuant Fed. R. Civ. P. 41(b), seeking to dismiss the complaint as against it based on the Plaintiffs failure to prosecute. More than three months have passed and the Plaintiff has also not opposed this motion. Under Rule 41, the Court must consider several factors in determining whether a dismissal is warranted, including: (1) the duration of the plaintiffs failures or non-compliance; (2) whether the plaintiff was on notice that the delay would result in dismissal; (3) whether the defendant is likely to be prejudiced by any further delay in the proceedings; (4) whether the courts interest in managing its docket outweighs the plaintiffs interest in receiving an opportunity to be heard; and (5) whether a lesser sanction is available and would be effective. Applying this analytical framework, the Court is of the view that the Plaintiffs complete inaction over the course of more than two years; her disregard for the service obligations imposed by Judge Lindsays R&R; and her failure to oppose the pending motion to dismiss the complaint, require dismissal at this time. However, the Court notes that this dismissal is without prejudice and the Plaintiff is granted leave to replead within 30 days of the date of this Order.. The Clerk of the Court is directed to close this case. See Order for further details. Ordered by Judge Arthur D. Spatt on 3/9/2016. c/ecf to Judgment Clerk. (Coleman, Laurie)