Alice BRISSETT, Plaintiff-Appellant, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, Defendant-Appellee, Joseph Staniszewski, Nelson Hernandez, Lou Maiello, Michael Danilczyk, Larry Mustillo, Defendants.
No. 11-2554.
United States Court of Appeals, Second Circuit.
July 9, 2012.
As to the condition set out in Paragraph 3.3 that Stonington “agree[] to pay” the contract balance, Stonington contends that its nonperformance was excused because there were no contract funds remaining. This contention, however, is unsupported by the record insofar as Stonington failed to demonstrate that it complied with the contract in disbursing the contract funds. Its prejudice argument fails because the Connecticut Supreme Court has never applied Murphy to a condition other than a notice condition. Moreover, Stonington incorrectly assumes that the bond allows separate consideration of prejudice as to each of Stonington‘s three categories of claims, such that National Fire was obliged to perform under the bond as to any claims for which Stonington‘s nonperformance did not prejudice National Fire. The plain language of the bond does not support this assertion, and Stonington points to no Connecticut case analyzing prejudice in this manner.
We have reviewed the remainder of plaintiff‘s arguments and found them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.
Alice Brissett, pro se, Staten Island, NY.
Kristen M. Nolan, Office of the General Counsel, New York City Transit Authority Law Department, Brooklyn, NY, for Appellees.
PRESENT: PIERRE N. LEVAL, ROSEMARY S. POOLER, CHRISTOPHER F. DRONEY, Circuit Judges.
SUMMARY ORDER
Appellant Alice Brissett, proceeding pro se, appeals from the district court‘s dismissal of her employment discrimination action pursuant to
This Court reviews the imposition of sanctions, including dismissal, for abuse of discretion, and the factual findings made in support of the district court‘s decision for clear error. See S. New England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 143 (2d Cir. 2010). “[I]n evaluating a district court‘s exercise of discretion to dismiss an action under Rule 37,” this Court has considered: “(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 v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (citation and internal
After an independent review of the record and relevant case law, we conclude that the district court did not err in dismissing Brissett‘s complaint. We recognize that dismissal is a harsh sanction, particularly for a pro se litigant. But where, as here, a litigant has been warned explicitly and repeatedly that failure to comply with the court‘s orders will lead to dismissal, it cannot be called abuse of discretion when that sanction is ultimately imposed for continued non-compliance.
We have considered Brissett‘s remaining arguments on appeal and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.1