Order | Filed: October 01, 2026
| Entered: October 01, 2026
Kraus v. U.S. Department of Veterans Affairs et al
P.I.: Other | New York Eastern
Order Dismissing Case
ORDER DISMISSING CASE: Plaintiff filed the Complaint in this action on May 20, 2024 (ECF No. 1 ). On September 24, 2024, this Court ordered Plaintiff to show cause as to why the case should not be dismissed due to Plaintiff's failure to serve Defendant within 90 days of the Complaint being filed. (Elec. Order, Sept. 24, 2024) (citing Rule 4(m) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P.").) On October 10, 2024, Plaintiff filed a memorandum in response to this Court's Order to Show Cause (ECF No. 7 ), and on October 25, 2024, the Court directed Plaintiff to serve all Defendants and provide the Court with proof of service by November 1, 2024. (Elec. Order, Oct. 25, 2024). On November 1, 2024, Plaintiff filed proof of service on both Defendants, and Defendants' answers were due, respectively, on November 21, 2024, and November 22, 2024. (ECF Nos. 8 and 9 .)
On November 12, 2025, the Court issued an Order setting a November 24, 2025 deadline for Plaintiff to request certificate of default and warned that failure to comply with the Court's deadline would result in a dismissal of this case for failure to prosecute under Fed. R. Civ. P. Rule 41(b).
The November 24, 2025 deadline has long passed, and Plaintiff has failed to advance this case.
The Court has considered the five factors that must be weighed when determining whether to dismiss a case for failure to prosecute under Fed. R. Civ. P. Rule 41(b) as set forth in Baptiste v. Sommers: (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. 768 F.3d 212, 216 (2d Cir. 2014).
Balancing these factors, it is appropriate to dismiss this action for failure to prosecute under Rule 41(b). Plaintiff has failed to respond to numerous Orders from this Court regarding his obligation to advance this case, but he has failed to take any steps to cure the deficiency. Additionally, Defendants will be prejudiced by further delay. Moreover, dismissal without prejudice is not an adjudication on the merits and balances the Court's interest in managing its docket with Plaintiff's interest in being heard.
Accordingly, the Complaint is dismissed without prejudice pursuant to Rule 41(b). The Clerk of the Court shall enter judgment and close this case.
The Clerk of the Court shall mail a copy of this Order to Plaintiff at his address of record and shall also record such mailing on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore IFP status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Ordered by Judge Nusrat J. Choudhury on 10/1/2026. (MMC)