Doyle v. American Home Products Corporation

Opinion

08-2149-cv Doyle v. American Home Products Corporation

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 August Term, 2008 7 8 9 (Argued: July 15, 2009 Decided: September 29, 2009) 10 11 Docket No. 08-2149-cv 12 13 14 - - - - - - - - - - - - - - - - - - - -X 15 16 17 ROBERT DOYLE, 18 Plaintiff-Appellant, 19 20 -v.- 08-2149-cv 21 22 AMERICAN HOME PRODUCTS CORPORATION AND 23 AMERICAN CYANAMID COMPANY, 24 Defendants-Appellees. 25 26 27 - - - - - - - - - - - - - - - - - - - -X 28 29 30 Before: JACOBS, Chief Judge, SACK, Circuit Judge, and 31 GOLDBERG, Judge. * 32 33 34 Plaintiff Robert Doyle appeals from a district court

35 order dismissing his case as untimely under the relevant 36 statute of limitations. The district court concluded that a

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The Honorable Richard W. Goldberg, United States Court of International Trade, sitting by designation.

1 dismissal in state court for failure to appear at a court 2 conference constituted a dismissal “for neglect to 3 prosecute” such that Doyle could not avail himself of a six- 4 month tolling provision under New York Civil Practice Law 5 and Rules section 205(a). For the foregoing reasons, we 6 affirm the dismissal. 7

8 TODD C. BANK, Kew Gardens, New 9 York, for Appellant. 10 11 12 LAUREN J. ELLIOT, (Daniel J. 13 Thomasch, on the brief), Orrick, 14 Herrington & Sutcliffe LLP, New 15 York, New York, for Appellees. 16 17 18 DENNIS JACOBS, Chief Judge:

19 Robert Doyle’s 1996 suit against a pharmaceutical 20 manufacturer alleging injury for a drug he took in 1989 and 21 1993, was dismissed in 2006 by the New York state court 22 after Doyle and his attorney failed to appear at a 23 scheduling conference. When Doyle later commenced this 24 diversity suit on the same claim, Doyle resisted the drug 25 company’s limitations defense on the ground that the New 26 York Civil Practice Law and Rules (“CPLR”) section 205(a) 27 tolls the statute of limitations during the pendency of the 28 prior action, and for six months after dismissal, if the

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1 prior action was dismissed for a technical reason, but not 2 if the prior action was dismissed for “neglect to 3 prosecute.” 1 Doyle now appeals from the order entered by 4 the United States District Court for the Eastern District of 5 New York (Korman, J.) on April 1, 2008, which dismissed his 6 federal action pursuant to Rule 12(c) of the Federal Rules 7 of Civil Procedure on the ground that the statute of 8 limitations--long exceeded--had not been tolled. Doyle v. 9 Am. Home Prods. Corp., No. 06 Civ. 5392 (ERK) (E.D.N.Y. Mar. 10 31, 2008). The question on appeal is whether the dismissal 11 in state court constituted a dismissal “for neglect to 12 prosecute.” 13 I 14 The State Court Litigation. Doyle commenced this 15 personal injury action in New York State Supreme Court, 16 Kings County, in May 1996, alleging injuries arising from

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The statute was amended in July 2008. However, that amendment was not in effect at the time of the state court dismissal (March 2006) or the district court dismissal (April 2008), and “[g]enerally, an amendment will have prospective application only, and will have no retroactive effect unless the language of the statute clearly indicates that it shall receive a contrary interpretation.” N.Y.

Stat. Law § 52. Section 205(a), as amended, contains no language indicating that it should be applied retroactively;

accordingly, we do not apply it to the present dispute.

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1 his 1989 and 1993 ingestion of “Minocin,” a drug 2 manufactured and sold by Defendants, American Home Products 3 Corporation, now known as Wyeth Holdings Corporation, and 4 its subsidiary, American Cyanamid Company (“Defendants”). 5 The suit asserted claims for negligence, warranty, strict 6 products liability, and misrepresentation. 7 Defendants’ motion for summary judgment was granted in 8 March 2000, and re-argument was denied. In April 2000, 9 Doyle appealed, and in August 2001, the Appellate Division 10 (Second Department) affirmed the dismissal of all claims 11 other than breach of warranty. 12 On return to the trial court, the parties moved to 13 compel discovery. In August 2002, Doyle was ordered within 14 60 days to (1) provide authorizations for the release of all 15 medical records, and (2) respond to discovery requests that 16 had been served five months earlier (in March 2002). More 17 than three months later, Doyle had provided neither the 18 authorizations nor the responses. A phone call to Doyle’s 19 attorney elicited a promise to provide the materials within 20 two weeks. According to Defendants, neither Doyle nor his 21 counsel provided the materials. In Doyle’s affidavit, he 22 insists that he served the authorizations upon Defendants

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1 and that the issue was in dispute because Defendants 2 mistakenly believed that they had not received all of the 3 authorizations requested. Doyle does not explain or excuse 4 his failure to submit the discovery requests. 5 For the next two years, Doyle admits he did nothing to 6 litigate the action. In October 2005, Defendants served 7 Doyle’s attorney with a demand for resumption of 8 prosecution. Doyle’s attorney indicated that his client 9 intended to resume litigation and requested that Defendants 10 respond to interrogatories submitted by Doyle approximately 11 four years earlier. In January 2006, Defendants reminded 12 Doyle by letter that: (1) they had responded to the 13 interrogatories three and one-half years earlier (in May 14 2002); and (2) Doyle was out of compliance with the August 15 2002 order requiring authorizations and responses within 60 16 days. 17 On March 2, 2006, approximately two months after the 18 Defendants’ letter, the court scheduled a status conference 19 for March 21, 2006. Neither Doyle nor his counsel appeared 20 at the conference. 21 The Dismissal. Section 202.27 of New York’s Uniform 22 Civil Rules for the Supreme Court and the County Court

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1 (“§ 202.27") confers authority on the court to dismiss a 2 cause of action because of the failure of a party to appear 3 at any court conference. 22 NYCRR § 202.27(b). On the day 4 that Doyle and his attorney failed to appear, Justice Diana 5 A. Johnson signed an order stating in its entirety:

6 Dismissed for failure to appear at 7 March 21, 2006 Court Ordered Status 8 Conference. 9 10 The order was entered on April 3, 2006, and notice of entry

11 of the order was served on Doyle’s attorney on April 13, 12 2006. 13 The Federal Court Action. Doyle filed no motion to 14 vacate the default, and filed no appeal from the dismissal. 15 Instead, on September 19, 2006 (approximately five months 16 after the dismissal), Doyle commenced the current action pro 17 se in the Eastern District of New York, alleging diversity 18 jurisdiction and pleading all four claims from the initial 19 state court complaint. 2 20 After some procedural maneuvering and at least one 21 conference, Defendants moved on February 16, 2007 for 22 judgment on the pleadings or (in the alternative) for 23 summary judgment. Among other things, Defendants argued

2 Doyle is now represented by counsel.

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1 that Doyle’s action was untimely and could not be saved by 2 the tolling provision of CPLR 205(a), which affords no 3 tolling when actions are dismissed “for neglect to 4 prosecute.” N.Y. CPLR 205(a). Doyle conceded that 5 dismissal was appropriate for all claims except the breach 6 of warranty claim (which was the only viable claim in state 7 court by the time that action was dismissed). As to that 8 remaining claim, Doyle invoked section 205(a), the relevant 9 version of which provides:

10 If an action is timely commenced and is 11 terminated in any other manner than by [1] 12 a voluntary discontinuance, [2] a failure 13 to obtain personal jurisdiction over the 14 defendant, [3] a dismissal of the 15 complaint for neglect to prosecute the 16 action, or [4] a final judgment upon the 17 merits, the plaintiff . . . may commence a 18 new action upon the same transaction or 19 occurrence . . . within six months after 20 the termination . . . . 21 22 N.Y. CPLR 205(a).

23 By Memorandum and Order dated March 31, 2008, the 24 district court granted Defendants’ motion and dismissed the 25 action in its entirety, concluding that Doyle’s laxness 26 precluded him from the benefit of “the six-month time 27 extension ordinarily awarded to a non-merits dismissal by 28 CPLR 205(a).” (quotations omitted). By order dated July 16,

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1 2008, the district court declined to reconsider its order 2 and reaffirmed its conclusion:

3 [T]he immediate and precipitating cause 4 of the dismissal . . . was the 5 culmination of a course of conduct that 6 plainly demonstrated a neglect to 7 prosecute. Even though the order did not 8 specifically allude to the plaintiff’s 9 dilatory tactics that spanned years, [the 10 dismissal] should be treated as one for 11 neglect to prosecute. 12 13 Doyle v. Am. Home Prods. Corp., No. 06 Civ. 5392 (ERK), at 5

14 (E.D.N.Y. Mar. 31, 2008). Doyle now appeals from that 15 conclusion. 16 II 17 We review a dismissal under Rule 12(c) de novo. Morris 18 v. Shroder Capital Mgmt. Int’l, 445 F.3d 525, 529 (2d Cir. 19 2006). 20 Doyle argues on appeal that his failure to appear for a 21 single court conference does not, in the circumstances 22 presented here, constitute “neglect to prosecute” within the 23 meaning of 205(a); accordingly, a dismissal under section 24 202.27(b) does not preclude the application of section 25 205(a)’s six-month tolling period. According to Doyle, it 26 does not matter that a state court could have dismissed an 27 action for failure to prosecute unless the state court

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1 actually did so, and made findings to support that 2 conclusion. 3 In response, Defendants argue that a dismissal for 4 failure to appear can constitute a dismissal “for neglect to 5 prosecute” when the record supports such a reading. 6 Defendants argue that section 202.27 is simply a procedural 7 tool available to effect such a dismissal. 8 III 9 The relevant version of section 205(a) provides that 10 “[i]f an action is timely commenced and is terminated in any 11 other manner than by . . . a dismissal of the complaint for 12 neglect to prosecute the action . . . the plaintiff . . . 13 may commence a new action . . . within six months after the 14 termination . . . .” N.Y. CPLR 205(a). Case law exploring 15 the purpose of 205(a) is well-developed and long-settled: 16 the roots of 205(a) can be traced “to seventeenth century 17 England,” and “the remedial concept embodied in CPLR 205(a) 18 has existed in New York law since at least 1788.” Reliance 19 Ins. Co. v. Polyvision Corp., 9 N.Y.3d 52, 56, 876 N.E.2d 20 898, 899 (N.Y. 2007). 21 “The obvious purpose of CPLR § 205(a) . . . is to 22 prevent the general statute of limitations from barring

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1 recovery because a court has ordered a timely action to be 2 terminated for some technical defect that can be remedied in 3 a new one.” Graziano v. Pennell, 371 F.2d 761, 763 (2d Cir. 4 1967). The statute is “said to be an outgrowth of the 5 ancient common law rule of ‘journey’s account,’ a period 6 allowed to permit a party, whose action had abated for 7 matter of form, a reasonable time within which to journey to 8 court to sue out a new writ.” Id. (quotations omitted). 9 However, in order to receive the benefit of 205(a) tolling, 10 the litigant must have prosecuted his original claim 11 diligently. Judge Cardozo described 205(a)’s precursor 12 statute: “The statute is designed to insure to the diligent 13 suitor the right to a hearing in court till he reaches a 14 judgment on the merits.” Gaines v. City of New York, 215 15 N.Y. 533, 539, 109 N.E. 594, 596 (N.Y. 1915) (emphasis 16 added). The New York courts have affirmed this point again 17 and again: “[t]he very function of [CPLR 205(a)] is to 18 provide a second opportunity to the claimant who has failed 19 the first time around because of some error pertaining 20 neither to the claimant’s willingness to prosecute in a 21 timely fashion nor to the merits of the underlying claim.” 22 George v. Mount Sinai Hosp., 47 N.Y.2d 170, 178-79, 390

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1 N.E.2d 1156, 1161 (N.Y. 1979); see also Morris Investors, 2 Inc. v. Comm’r of Fin. of City of New York, 503 N.Y.S.2d 3 363, 366, 121 A.D.2d 221, 225 (1st Dep’t 1986) (quoting 4 George v. Mount Sinai Hosp.), aff’d, 509 N.E.2d 329 (N.Y. 5 1987); Graziano, 371 F.2d at 763 (quoting Judge Cardozo in 6 Gaines v. City of New York); Producers Releasing Corp. v. 7 Pathe Indus., 184 F.2d 1021, 1023 (2d Cir. 1950) (same). In 8 short, the purpose of 205(a) is to save cases otherwise 9 dismissed on curable technicalities--but only when the 10 litigant has diligently prosecuted the claim. 11 Here, the district court’s dismissal was proper because 12 the record plainly reflects that Doyle failed to diligently 13 prosecute his claim. Doyle initially filed suit in state 14 court in 1996, failed to submit to discovery, and admittedly 15 failed to take any action in the case for a two-year period. 16 After prompting by the Defendants, he sought to revive the 17 action, only to fail to appear for a conference shortly 18 thereafter. Under these circumstances, we have no trouble 19 concluding that the dismissal for failure to appear amounted 20 to a dismissal “for neglect to prosecute” barring 21 application of 205(a) tolling. See, e.g., Villanova v. King 22 Kullen Supermarkets, 558 N.Y.S.2d 55, 56, 163 A.D.2d 203,

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1 203 (1st Dep’t 1990). 2 IV 3 Our conclusion, based on statutory purpose, decides a 4 question that is not clearly answered in New York caselaw, 5 but that we decline to certify. The parties cite cases on 6 whether 205(a) tolling is available absent an express 7 finding on neglect to prosecute. Compare Burns v. Pace 8 Univ., 809 N.Y.S.2d 3, 4, 25 A.D.3d 334, 335 (1st Dep’t 9 2006) (“we find that plaintiff was entitled to rely on the 10 tolling provision in CPLR 205 (a) since the action was not 11 dismissed for neglect to prosecute, even though there was 12 sufficient evidence in the record to support such a 13 dismissal”), with Andrea v. Arnone, 5 N.Y.3d 514, 520, 840 14 N.E.2d 565, 567 (N.Y. 2005) (“Our decisions make clear that 15 the ‘neglect to prosecute’ exception in CPLR 205 (a) applies 16 not only where the dismissal of the prior action is for 17 ‘[w]ant of prosecution’ . . . but whenever neglect to 18 prosecute is in fact the basis for dismissal . . . .”), and 19 Flans v. Fed. Ins. Co., 43 N.Y.2d 881, 882, 374 N.E.2d 365, 20 365 (N.Y. 1978) (concluding “inferentially” from the record 21 before it that the “dismissal of the original, timely action 22 was . . . for ‘neglect to prosecute’”). These cases are

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1 distinguishable from the facts before us on one ground or 2 another: for example, Justice Johnson’s order does not say 3 whether “neglect to prosecute is in fact the basis for 4 dismissal.” Even so, we might ordinarily certify the 5 question to the New York Court of Appeals. There are good 6 reasons why we do not do so. First, the state courts have 7 already thrown this case out, revived it, and then thrown it 8 out again. They have expressed their desire to be rid of it 9 (twice) and it would be an imposition on the state’s highest 10 court for us to serve it up again. Second, New York has 11 well-developed case law on the purpose and application of 12 CPLR 205(a) and its precursor statutes; that case law is 13 unambiguous and provides more than ample foundation for our 14 ruling. Third, certification is not necessary where 15 precedent is clear and application of law to fact requires 16 no grand or novel pronouncements of New York law. See, 17 e.g., Regatos v. N. Fork Bank, 5 N.Y.3d 395, 400, 838 N.E.2d 18 629, 631 (N.Y. 2005) (accepting certification when 19 disposition of the case involved “novel, important questions 20 of New York law”). Finally, all the plaintiff has lost is a 21 claim in which he has shown no more than lackadaisical 22 interest.

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1 CONCLUSION 2 For the foregoing reasons, the judgment and order of 3 the district court is affirmed and the case dismissed.