OTU OBOT & CAROL OBOT, Petitioner-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. , , UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, , No. 05-5570-ag, November 15, 2007

OTU OBOT & CAROL OBOT, Petitioner-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 05-5570-ag

November 15, 2007

Unpublished Opinion

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 15 ^th day of November, two thousand seven.

PRESENT: HONORABLE ROGER J. MINER, HONORABLE REENA RAGGI, Circuit Judges ,

HONORABLE JED S. RAKOFF, District Judge. ¹

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¹ ═ The Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.

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SUBMITTING FOR APPELLANTS: OTU OBOT, pro se ; CAROL OBOT, pro se .

SUBMITTING FOR APPELLEE: EILEEN J. O'CONNOR, Assistant Attorney General, United States Department of Justice (Michael J. Haungs, Sara Ann Ketchum, Tax Division Attorneys, on the brief ).

Appeal from the United States Tax Court (Mary Ann Cohen, Judge ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of dismissal entered on September 26, 2005, is AFFIRMED.

Petitioners Otu and Carol Obot appeal from a judgment of dismissal for failure to prosecute under Tax Court Rules of Procedure 123 and 149. We assume the parties' familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.

We review the Tax Court's dismissal for failure to prosecute for abuse of discretion. See Colon v. Comm'r of Internal Revenue , 252 F.3d 662, 662 (2d Cir. 2001). Factors relevant to our review include: "1) the duration of petitioner's failures or non-compliance; 2) whether petitioner had notice that such conduct would result in dismissal; 3) whether prejudice to the respondent is likely to result; 4) whether the court balanced its interest in managing its docket against petitioner's interest in receiving an opportunity to be heard; and 5) whether the court adequately considered the efficacy of a sanction less draconian than dismissal." Id . at 663 (internal quotation marks omitted).

Mindful of the fact that "pro se plaintiffs should be granted special leniency regarding procedural matters," LeSane v. Hall's Sec. Analyst, Inc ., 239 F.3d 206, 209 (2d Cir. 2001), we nonetheless find no abuse of discretion in this case. Petitioners' failure to comply with court orders began with the inception of their suit and culminated in their willful refusal to appear at trial. Both the Tax Court and the respondent Commissioner of Internal Revenue warned petitioners on many different occasions, including in response to their notice that they refused to appear at what they characterized as an inevitably unfair trial, that their noncompliance and failure to appear could result in a dismissal for failure to prosecute. As we have previously observed, "it is difficult to imagine how a dismissal following an unheeded warning could be an abuse of discretion." Id . at 210 (internal quotation marks omitted). Nothing in the record of this case indicates abuse. To the contrary, the Tax Court's balancing of the factors outlined in Colon was reasonable and well within its discretion.

Accordingly, the judgment of dismissal is AFFIRMED.

FOR THE COURT:

CATHERINE O'HAGAN WOLFE, Clerk of Court

BY: ___________

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