Brooklyn Bottling of Milton, New York, Inc. v. Ecuabeverage, Corp.

514 F. App'x 22

• Court: Court of Appeals for the Second Circuit
• Decided: March 14, 2013
• Docket: 12-1140-cv
• Status: Unpublished

Opinion

SUMMARY ORDER

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Defendant-Appellant Ecuabeverage Corp. (“Ecuabeverage”) appeals from the district court’s September 4, 2008 denial of its motion for partial summary judgment; August 17, 2010 denial of its motion for summary judgment on the equitable ground of acquiescence; and March 6, 2012 grant of its motion to dismiss for lack of prosecution, but only to the extent that it argues the dismissal should have been made “with prejudice” rather than “without prejudice.” We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

“We review a dismissal for failure to prosecute under the abuse of discretion standard.” United States ex. rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir.2004). On review from a final order, “we have discretion, in the interests of judicial economy” to review the denial of a motion for summary judgment. See Am. Motorists Ins. Co. v. United Furnace Co., 876 F.2d 293, 302 (2d Cir.1989). “We review de novo a district court’s grant or denial of summary judgment, viewing the record in the light most favorable to the party against whom summary judgment is sought.” Mullins v. City of N.Y., 653 F.3d 104, 113 (2d Cir.2011).

Here, we find that the district court did not abuse its discretion in dismissing without prejudice. Furthermore, we find that our concerns about judicial economy militate against considering the denial of Ec-uabeverage’s motions for summary judgment.

We have considered all of Ecuabever-age’s remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.