should be reversed because the district court failed to properly apply the factors governing dismissals for failure to prosecute as this court has explained district courts should consider five factors before dismissing a case for failure to prosecute in the decision below however the district court gave little to no meaningful discussion of three of the factors and we believe did not give proper consideration of the remaining two mr clark e was concerned about the inaction in the case for an extended period of time seems to me that she notes in the order i think at least two years july thirty one twenty nowhere indeed the next step in the case was to submit a joint pretrial order in this case which was indeed joint defendants become aware of that or have an inkling also because it doesn't seem to have come to the defense counsel for the defendants in this case of the defendant was going or suggested counsel was going to withdraw my understanding is that was at some point in july tw almost two years before the courts is what's happening indeed your honor nevertheless considering the factors elaborated by this court concern it doesn't matter what where and abuse discretion and if you're right we would have to find that the district court abused her discretion in dismissing that is correct can you point to a case in which almost two years of inactivity have occurred yes yes and where we found it to be an abuse of discretion what would you rely on yes your hon was an explanation that the individual prosecuting the matter had been ill had been sick i believe that that was one explanation you're in as any you know explanation given to the district court about why this delay occurred here and the notion that you were waiting  i do believe that there was also a note that there that the apology from plant plaintiffs counsel concerning the failure to alert the court that's an explanation of course right understood your honor but nevertheless i believe that that was in tandem with calendaring issues with the firm nevertheless i believe that their right to an explanation that there was a calendaring issue at the firm was given i believe my apologies your honor i don't think that that particular issue was brought to the court's attention nevertheless that's my understanding of what was underlying it was given and bad taste also concerned a pro se individual who was ill for an extended time where's here  the plaintiff obviously was counsel to correct that is true nevertheless this court has noted that dismissal dismissal with prejudice is a harsh sanction with consequences for clients who may be blame s accordingly this court has applied the five factor test concerning dismissals for failure to prosecute evenly across cases the involved both pro se and represented counsel be placing the burden on the district court to make sure that the plaintiffs counsel is moving the matter along two years of inaction strikes me as very long and that's an obligation that council bears i think it is a significant duration nevertheless i think that the law of this court has been clear that given the risk to due process and the risk to the plaintiffs day in court that there do need to be some procedural prerequisites to a dismissal for failure to prosecute one of the that the judge made on the explanation was that there had been no motion to withdraw and at this late stage the court might not grant after two years plaintiff counsel came up with an explanation and that the district court simply didn't believe this counted it wasn't as though counsel came forward with an explanation that was a reasonable credible explanation for the two years i think it's unclear from the record whether or not the district court completely discounted the plaintiffs the plaint explanation at that time certainly the court did note that it it was disinclined i think to accept a motion to withdraw at that point however at that point it had not actually ruled on the plaintiff's request which was also served with the joint status letter that the court issued a date certain to file a joint pretrial order or for defendants to withdraw if if the dismissal had been without  prejudice would that have had the same effect in any event given the length of time for the violation and given the problem of bringing another lawsuit after the first lawsuit had been dismissed for failure to prosecute i do think that there would be differences certainly it speaks to the factor of lessers of whether the court considered lesser sanctions in the case but if the york statute of limitations if the prior case was dismissed for failure to prosecute that's true but the statute of limitations on a new york labor law wage claim is six years accordingly if this case had never existed plaintiff would still be able to file a new york labor law state law action for unpaid wages and unpaid overtime because yes looking back six years because planes employment did not end until i believe approximately december twenty fifth  of that it was wasn't it twenty fourteen this is contact between two thousand and nine to decide to leave i believe that that is that is correct your honor nevertheless it still would remain within the statute of limitations if there was a new york labor law action specifically asked on two separate occasions a very simple and direct question please explain why you failed to prosecute the case i learned a long time ago when the judge has to question not once but twice you really need to answer the question  was something that i mean i was thinking about what i would do if i was playing to if he doesn't have an excuse for illness he doesn't have an excuse or he couldn't locate the pharo the only aura there was a florida chronic illness or or some excuse or defense as to why this matter laid for two years and nothing was done not none the less that it's more the ordinary course for the court to issue an order to show cause and say that absent  you know movement in the case the matter will be dismissed on a date certain you know here there was once two seven twenty seventeen arrived and the district court issued orders to show cause the plaintiff was responsive to those and timely filed what was requested you would i might disagree or about the adequacy of the explanations offered nonetheless the plaintiff made it case languished for two years that predated the order to show cause and once that letter was responded to she is judge macmahon realize that there is no reason to excuse why this matter has languished for two years yet and say she was entitled to dismiss wasn't use of discussions dismiss even absent considering lesser sanctions or seeing the response of missed now in response to the mail eleventh and may twenty third letters mean plaintiff is responding within a week as timely directed correct but if you read his response i'm sure the court did i'm sorry when the court refused the response is not responsive it's evasive i mean the court wanted an answer to question and that answer today has never been given and judge mcmahon and her order of june fifth two thousand and seventeen detailed the fire reasons for the five issues that must be is nothing has been done number two plant that was given notice to further delay would result in dismissal short there was a letter that provided that was provided by the court that indicated that look you have to tell us why and well thats actually my concern i mean he got notice that the matter had come to the court's attention again but he wasn't given a chance to then start moving the case along well for it was dismissed  your i think your position is that because the explanation was inadequate for the two years delay the court was entitle to dismiss really without more then and prejudice should be presumed prejudice is presumed when the delay is th study cases in our brief specifically says the president is presumed anchor and counsel has not indicated why there hasn't been any president but in what way did the court give notice that that that matter that further delay would result in dismissal he was given notice that the past the light would result in dismissal and wasn't given an opportunity to cure well i believe he was given an opportunity on may eleventh because that should have woken up counsel was that opportunity precisely well i may eleventh the court reached out to counsel to inquire about the stats of this case and because there was no activity since july two thousand and fifteen and the court would and the court further judge mcmahon's order of that  right and then counsel could have done something parties are directed to file a letter within seven days jointly or separately report card status right right so counsel if if i'm counsel for the plaintiff and i know i have no reason whatsoever why this case after two years my client's not sick i'm not sick there's no reason whatsoever i would have done something a little bit more and ignore the court's directive and not give a reasonable who did file as directed within seven days he didn't have a good excuse from your perspective but he did comply with the court's order well i think going back to the court's original question is was there prior notice again the court knew that you have in fact there there had been a real reason why somebody got might my client was in the hospital i couldn't locate him this chronic illness something that you could say ok i'm going to have a reasonable excuse as to why this matter sat it two years and nothing has been done then you would have wrote the letter and good conscience thought that the court hoped or believe that the court would in fact give you the time to take care of this matter but here counsel who knew there was no reason whatsoever and what he did was he tried to put it off for blame opposing counsel for something that never happened so i'm not familiar probably should be more familiar with this with practice of the southern district of new york up a place where i come from you basically told  the court come on in for trial and if you need more time you tell the court you need more time it doesn't look to me as no anybody does when you're not engaging the court of discovery maybe you'd have discovery disputes you don't have a motion so what should have happened before may eleventh may eleventh counsel should have been honest with i don't know what should have happened before may eleventh of the district court knew that council was ready to go to trial counsel should have informed the court is that a part of that southern district well you had this original order which sets forth like a discovery schedule nothing was complied with how do you know because it can use language for two years not months what does languish mean i mean i think this is not moving where i come from and where i practiced the court just says here on the trial calendar show up and draw jury or show up and get ready to try to court file your pretrial order wasn't there wasn't there a deadline to file the twenty pretrial order that was then missed for two years right so i think what counsel should have done or what i would have done i would have reached out to the court and maybe my head was sorry and i would have said look nothing has been done here we have discovery nothing has been accomplished no deposition having a reason that doesn't exist i should notify the court and say look we need to extend the time to conduct discovery because this matter was overlooked call it law office failure or something instead of saying it's my adversaries fault because he told me the unknown date in time in some manner that he was going to be withdrawing as counsel now i'm prejudiced because i mean these go back nine ten years i have to find witnesses records i'm prejudiced severely as a result of this delay and again counsel could have said maybe made an application for a voluntary does this continuance of the case and brought his case in state court to preserve his client's rights but these things avoid it and pay the consequences of it was a dismissal without prejudice and available lesser sanction i don't think the court wanted this case brought again and i'm sorry i don't believe the court wanted this case to be brought again yes it could have been a lesser sanction but the court said no the court actually any further delay in this litigation would congestive court's docket and no sanctions short of this missile would alleviate that congestion so the court didn't want a case with the litigants when the matter went back nine years with litigants waited two years to come back again and again my client is to vili prejudice because of the penalties and interest that accrued that's something that coun overlooks so yes the court can consider all these items and respond to each and every one in the fashion that the court seemed best and they were dressed well apparently plaintive wasn't interested in pursuing this case well i mean they weren't i mean they haven't met defense counsel who doesn't lay out a set of iraq atari's requests for admission well maybe not requests for additional requests for production and schedule depositions when their client is being sued for a fairly substantial fee my own stories fairly substantial sum and your client did none of that neither did well again plaintive is the one that has to move the case my job as a defense attorney is to get his to his to win the case and to get the case dismissed ok that's what the defendant is supposed to do and doesn't and the defendant doesn't care about does not report well we have to do what's best for our client and looking at the file that i received yet i don't see any discovery demands by point  your honors i have just three points the first point is that there is nothing in the record concerning the content of discovery in this underlying action discovery was closed at the time that the delay began my understanding is that this was a case where the defendants possessed no underlying employment records in f l us a new york labor law action accordingly we did ask whether or not there were any records we're told that there were none and did not proceed as that was t record what you're saying right now no but i but that it is also the case that the defense that the pelleas representations concerning the status of discovery are not on the record it's more discovery was closed is that right yes moreover there was a factual record misrepresentation there concerning whether or not defendants had had noted that they plan to withdraw certainly that is our offices understanding we raise that is true nevertheless i am responding to a pelleas argument that they had not had not made this representation to counsel do you think that they would have raised that in their may thirty first letter if they were responding to a letter from the plaintiff containing this air the second issue would be as to notice it is not just generally notice of occurrences but notice that further delay will result in dismissal and i think that the court's questions illustrate that there is nothing on this record of the court suggesting that further delay will result in to a missile lastly the last step in the case before trial was simply the filing of this joint pretrial order in the case certainly we indicated multiple times to the court that we wish to comply and i certainly kindly urge that the court reverse the district court's dismissal plaintiff