Lucas v. The City University of New York et al

MOTION to Dismiss for Lack of Prosecution or to deem Defendants' motion to dismiss the amended complaint fully submited as unopposed. Document

S.D.N.Y.November 30, 2016

November 30, 2016 BY ECF Honorable Ronnie Abrams United States District Judge United States District Court Southern District of New York 40 Foley Square, Room 2203 New York, New York 10007 Re: Anthony Lucas v. The City University of New York, et al. Docket No. 16 Civ. 3213(RA) Dear Judge Abrams: I am an Assistant Corporation Counsel in the office of Zachary W. Carter, Corporation Counsel of the City of New York, attorney for Defendants The City University of New York (“CUNY”) and James Boyle in the above-referenced action. Plaintiff, a principal custodial supervisor at the Borough of Manhattan Community College formerly employed by CUNY, commenced this action pursuant to Title VII and § 1981 alleging that the Defendants engaged in discriminatory and retaliatory behavior by treating him unfairly, and by terminating his probationary employment as a principal custodial supervisor. On November 9, 2016, Defendants filed their Notice of Motion to Dismiss the Amended Complaint. See ECF Dkt. No. 19. In the Notice of Motion, Defendants notified Plaintiff that, pursuant to Local Civil Rule 6.1(b), any opposing affidavit and answering memoranda shall be served within fourteen days of the moving papers, and any reply affidavit and memoranda of law shall be served within seven days after service of the answering papers. See id. Accordingly, Plaintiff’s opposition papers were to be served on November 23, 2016, while Defendants’ reply papers were to be served today, November 30, 2016. As of the filing of this letter, Defendants have received no opposition to their Motion to Dismiss the Amended Complaint. Further, this is not the first time Plaintiff has failed to timely respond to a motion filed by Defendants. See ECF Dkt. No. 15. Indeed, after Plaintiff failed to timely respond to Defendants’ motion to dismiss the original complaint, the Court notified Plaintiff that “[i]f Plaintiff fails to file opposition by October 20, 2016, the motion shall be deemed and decided unopposed…If, however, Plaintiff fails to oppose Defendants’ motion by October 20, 2016 and fails to file a letter by October 27, 2016 indicating an intention to pursue the litigation, this action shall be dismissed for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.” See id. ZACHARY W. CARTER Corporation Counsel THE CITY OF NEW YORK LAW DEPARTMENT 100 CHURCH STREET NEW YORK, NY 10007 SCOTT C. SILVERMAN Assistant Corporation Counsel Labor & Employment Law Division (212) 356-2450 ssilverm@law.nyc.gov Case 1:16-cv-03213-RA Document 22 Filed 11/30/16 Page 1 of 2 - 2 - Accordingly, since Defendants have received no opposition to their Motion to Dismiss the Amended Complaint, nor any indication that Plaintiff wishes to oppose Defendants’ motion, Defendants respectfully request that this action be dismissed for failure to prosecute or that their motion be deemed fully submitted and decided as unopposed. Thank you for your consideration of this request. Respectfully submitted, /s/ Scott C. Silverman Scott C. Silverman Assistant Corporation Counsel cc: Castillo Stephens LLP (By ECF) Attn: Francisco Castillo Attorneys for Plaintiff 305 Broadway, Suite 1200 New York, NY 10007 (212) 385-1400 cslawyers@attorney1.com Case 1:16-cv-03213-RA Document 22 Filed 11/30/16 Page 2 of 2