Hepfer v. Commissioner of Social Security

• Court: District Court, N.D. New York
• Decided: October 26, 2020
• Docket: 5:19-cv-01573
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ ROBIN L. H., Plaintiff, 5:19-CV-01573(TWD) COMMISSIONER OF SOCIAL SECURITY, Defendant. _____________________________________________ APPEARANCES: OF COUNSEL: ROBIN L. H.. Plaintiff, pro se 121 Wilson Avenue Liverpool, NY 13088 U.S. SOCIAL SECURITY ADMIN. KEVIN M. PARRINGTON, ESQ. OFFICE OF THE GENERAL COUNSEL Special Assistant U.S. Attorney Counsel for Defendant JFK Federal Building, Room 625 New York, NY 10278 THÉRÈSE WILEY DANCKS, United States Magistrate Judge DECISION and ORDER I. INTRODUCTION This matter is presently before the Court to consider whether this action, which is an appeal from an unfavorable determination of the Social Security Administration regarding Plaintiff’s disability, should be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure based upon pro se Plaintiff’s failure to prosecute. Defendant has moved for dismissal. (Dkt. No. 13.) For the reasons that follow, the Court grants Defendant’s Motion to Dismiss (Dkt. No. 13) and dismisses Plaintiff’s Complaint (Dkt. No. 1) with prejudice. II. PROCEEDINGS TO DATE Plaintiff commenced this action pursuant to 42 U.S.C. §405(g) for review of an adverse decision of the Commissioner of Social Security by the filing of a Complaint on December 19, 2019.

(Dkt. No. 1.) The Clerk provided Plaintiff with a copy of the Court’s Pro Se Handbook, Local Rules, and Notice. (Dkt. No. 5.) A Consent to the Jurisdiction of the Magistrate Judge was also filed. (Dkt. No. 8.) The Commissioner then filed the certified administrative record on March 23, 2020, and served it on Plaintiff as directed by the Court. (Dkt. Nos. 10, 11; Text Notice 3/24/2020.) Thereafter, the Court issued a Text Notice on April 2, 2020, notifying Plaintiff that her brief was due May 7, 2020. (Text Notice 4/2/2020.) When Plaintiff’s brief was not received by the due date, the Court issued a Text Order on May 26, 2020, which sua sponte extended Plaintiff’s time to file her brief by June 15,

2020. (Dkt. No. 12.) That Text Order also noted for Plaintiff that pursuant to the Northern District of New York’s General Order 18, “‘a party’s brief may be its only opportunity to set forth arguments that entitle the party to a judgment in its favor. The failure to file a brief by either party may result in the consideration of the record without the benefit of the party’s arguments. In the event a plaintiff fails to submit a brief, the defendant may file a motion to dismiss for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b), and the action may be dismissed with prejudice on the basis of the plaintiff's failure to file a brief.’” Id. (citing N.D.N.Y. General Order 18). The Court further directed that “if plaintiff fails to file a brief by 6/15/2020, defendant should file a motion to dismiss pursuant to

General Order 18 by 6/30/2020.” Id. Thereafter, when Plaintiff again did not file her brief as directed, Defendant filed the present Motion to Dismiss for Failure to Prosecute on June 23, 2020. (Dkt. No. 13.) Plaintiff was directed to 2 file her response to the motion by July 20, 2020. Id. However, as of the date of this Decision and Order, Plaintiff has failed to file a response to the motion. Plaintiff has also failed to file a brief, or request an extension of any of the deadlines set by the Court. Plaintiff has likewise failed to contact the Court with any further information; she has not indicated she intends to prosecute this case; and she has not otherwise communicated with the Clerk regarding this action. Il. DISCUSSION Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute the case, or to comply with the procedural rules or orders of the court. Fed. R. Civ. P. 41(b); see also Link v. Wabash R.R. Co., 370 US. 626 (1962). This power to dismiss may be exercised when necessary to achieve orderly and expeditious disposition of cases. See Freeman v. Lundrigan, No. 95-CV-1190, 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996) (Pooler, J.).'. Even though Rule 41(b) speaks only of a dismissal on a motion by a defendant, courts have recognized that the rule does not abrogate a district court’s inherent power to dismiss a complaint, sua sponte, for failure to prosecute. See Saylor v. Bastedo, 623 F.2d 230, 238-39 (2d Cir. 1980). It is also well-settled that the term “these rules” in Fed. R. Civ. P. 41(b) refers not only to the Federal Rules of Civil Procedure but also to the local rules of practice for a district court. See Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006). In Social Security cases, General Order 18, under the heading “NOTIFICATION OF THE CONSEQUENCES OF FAILING TO FILE A BRIEF AS REQUIRED BY PARAGRAPH C.(1)(A-D)” (emphasis in original), provides that an “[a]ction may be dismissed with prejudice on the basis of the plaintiff's

' The Court will provide pro se Plaintiffs with a copy of all of the unpublished decisions cited in this Report-Recommendation in accordance with the Second Circuit’s decision in Lebron □□□ Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

failure to file a brief.” N.D.N.Y. General Order 18. Also, Local Rule 41.2 provides that “Whenever it appears that the plaintiff has failed to prosecute an action or proceeding diligently, the assigned judge shall order it dismissed.” N.D.N.Y. L.R. 41.2(a). The correctness of a Rule 41(b) dismissal is determined in light of five factors: (1) the duration

of the plaintiff’s failure to comply with the court order (or the court’s procedural rules); (2) whether plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court’s interest in managing its docket with the plaintiff’s interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal. Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996); United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). Moreover, although “a decision to dismiss stands a better chance on appeal if the appellate court has

the benefit of the district court’s reasoning” on each of the five factors, we do not “require the [district] court to discuss the factors on the record.” Id. In considering the duration of Plaintiff’s failure to prosecute her claim, the Court notes that Local Rule 41.2(a) of the Northern District of New York states that “the plaintiff’s failure to take action for four (4) months shall be presumptive evidence of lack of prosecution.” N.D.N.Y. L.R. 41.2(a). Upon review of the docket, it appears that Plaintiff has failed to file anything since she commenced the action on December 19, 2019, by filing the Complaint, a Motion to proceed in forma pauperis, and the consent to the Magistrate Judge form. (Dkt. Nos. 1, 3, 8.) After not having any

further contact from Plaintiff either in person, by telephone, or by letter, the Court provided her with two opportunities to file a brief and she did not do so. (Text Notice 4/2/2020; Dkt. No. 12.) Plaintiff was warned that failure to file a brief would result in dismissal of the action. (Dkt. No. 12.) Despite 4 prodding from the Court, Plaintiff has not followed the Court’s Orders and directives after being given opportunities to do so. Accordingly, the Court finds the first factor weighs in favor of dismissal. “The Second Circuit requires that the plaintiff receive adequate notice that the case could be dismissed due to inaction.” Folk v. Rademacher, No. 00-CV-199S, 2005 U.S. Dist. LEXIS 32899, at

*10, 2005 WL 2205816, *4 (W.D.N.Y. Sept. 9, 2005) (citing Martens v. Thomann, 273 F.3d 159, 180- 81 (2d Cir. 2001). Here, Plaintiff failed to contact the Court or file a brief or request an extension after being given an opportunity to do so by the Court. (Text Notice 4/2/2020; Dkt. No. 12.) As noted above, Plaintiff was specifically notified by Text Order (Dkt. No. 12) that her failure to file a brief would result in dismissal. See Nolan v. Primagency, Inc., No. 07 Civ. 134, 2008 U.S. Dist. LEXIS 31268, at *10, 2008 WL 1758644, at *3 (S.D.N.Y. Apr. 16, 2008) (“The Second Circuit has held that where a court puts a plaintiff on notice that the court is considering dismissal, and a plaintiff fails to

file a document explaining the failures and outlining why the action should not be dismissed, this element has been met.”) (citing Shannon v. General Elec. Co., 186 F.3d 186, 194-95 (2d Cir. 1999)); Europacific Asset Mgmt. Corp. v. Tradescape, Corp., 233 F.R.D. 344, 353 (S.D.N.Y. 2005) (“A court’s prior warning of dismissal, and subsequent inaction by a plaintiff, weighs in favor of dismissal.”). Thus, the second factor weighs in favor of dismissal. The third factor is also satisfied as further delay is likely to prejudice Defendant who has filed required documents in accordance with General Order 18 and as directed by the Court. (Dkt. Nos. 10, 11, 13.) Due to Plaintiff’s inaction, nothing of substance has been completed in this case since the

filing of the administrative transcript (Dkt. No. 10) over six months ago. Therefore, the third factor also weighs in favor of dismissal. Under the circumstances, the Court finds the need to alleviate congestion on the Court’s docket, 5 and move cases toward trial, outweighs Plaintiff’s right to receive a further chance to be heard in this case. It is the need to monitor and manage cases such as this when one party refuses to participate that delays the resolution of this and other cases, and that contributes to the Second Circuit’s relatively long median time to disposition for social security cases.

Finally, the Court has carefully considered sanctions less drastic than dismissal of Plaintiff’s complaint and finds them to be inadequate under the circumstances. IV. CONCLUSION The Court’s records fail to reveal that any meaningful steps have been taken by Plaintiff to pursue her claims in this action. Despite several orders from the Court directing Plaintiff to take specific steps to pursue this action, Plaintiff has failed to comply and has provided no information to the Court concerning any measures taken to continue the action, or from which the Court could

meaningfully gauge her level of persistence and enthusiasm for pursuing the action. Accordingly, based upon Plaintiff’s failure to comply with directives from the Court or to file a brief, and after considering the factors relevant to a dismissal under Rule 41(b) of the Federal Rules of Civil Procedure, Defendant’s Motion to Dismiss (Dkt. No. 13) is granted and Plaintiff’s complaint is dismissed with prejudice. WHEREFORE, it is hereby ORDERED that Defendant’s Motion to Dismiss (Dkt. No. 13) is GRANTED, and the

Complaint is DISMISSED with prejudice, for failure to prosecute; and it is further ORDERED that the Clerk provide Plaintiff with copies of Folk v. Rademacher, No. 00-CV- 199S, 2005 U.S. Dist. LEXIS 32899, 2005 WL 2205816 (W.D.N.Y. Sept. 9, 2005); Freeman v. Lundrigan, No. 95-CV-1190, 1996 U.S. Dist. LEXIS 12296, 1996 WL 481534 (N.D.N.Y. Aug. 22, 6 1996); and Nolan v. Primagency, Inc., No. 07 Civ. 134, 2008 U.S. Dist. LEXIS 31268, 2008 WL 1758644 (S.D.N.Y. Apr. 16, 2008); and it is further ORDERED that the Clerk serve a copy of this Decision and Order on Plaintiff in accordance with the Court’s local rules. IT IS SO ORDERED. Dated: October 26, 2020 Syracuse, NY A L ) by jj 4— Thérése Wiley Dancks United States Magistrate Judge

Westlaw. Page | Not Reported in F.Supp., 1996 WL 481534 (N.D.N.Y.) (Cite as: 1996 WL 481534 (N.D.N.Y.))

Cc Rule 41(b) of the Federal Rules of Civil Proce- Only the Westlaw citation is currently available. dure provides that a court may, in its discretion, dis- miss an action based upon the failure of a plaintiff to United States District Court, N.D. New York. Prosecute an action or comply with any order of the Millicient FREEMAN, Plaintiff, court. Link vy. Wabash Railroad County Independent y School District, 370 U.S. 626 (1962). This power to Kevin LUNDRIGAN, C.O., Defendant. dismiss an action may be exercised when necessary to achieve orderly and expeditious disposition of cases. ul See Rodriguez v. Walsh, No. 92—Civ—3398, 1994 WL No. 96-CV-1190 (RSP/RWS). 9688, *1 (S.D.N.Y. Jan. 14, 1994) (citations omitted). Aug. 22, 1996. Additionally, this Court specifically cautioned Millicent Freeman, Oriskany, NY, Pro se. Freeman that her failure “to promptly notify the Clerk's Office of any change in her address ... [would] McLane and Smith, L.L.P., Utica, NY (Steven A. result in the dismissal of the instant action.” See Dkt. Smith, of counsel), for Defendant. No. 3 at 7. ORDER Moreover, a plaintiff has the duty to inform the POOLER, District Judge. Court of any address changes. As I have stated: *1 By Order dated February 5, 1996 (“Order”), I approved the Order and Report-Recommendation of It is neither feasible nor legally required that the Magistrate Judge Ralph W. Smith, Jr., dated October clerks of the district courts undertake independently 5, 1995, and dismissed this action as against Daniel . to maintain current addresses on all parties to Middaugh, Michael Durant, Todd Egger, Robert . . ws pending actions. It is incumbent upon litigants to Stanton and Daryl Bourant. See Dkt. No. 11. inform the clerk of address changes, for it is mani- fest that communications between the clerk and the A copy of the Order was served on Freeman at her parties or their counsel will be conducted princi- last known address by regular mail on February 6, pally by mail. In addition to keeping the clerk in- 1996. On February 12, 1996, the Order was returned formed of any change of address, parties are obliged to the Court marked “No Longer at This Facili- to make timely status inquiries. Address changes ty—Please Return to Sender.” See Dkt. No. 12. normally would be reflected by those inquiries if made in writing. On June 19, 1996, Steven A. Smith, Esq., attorney for the defendant, filed an affidavit with the Court Dansby y. Albany Cty Corr. Facility, No. stating that he had attempted to serve a first set of 95-CV-1525, 1996 WL 172699, *1 (N.D.N.Y. Apr. interrogatories on Freeman at the address listed on the 10, 1996) (Pooler, J.) (quoting Perkins v. King, No. summons, and that it was returned to him by the Post 84-3310, slip op. at 4 (5th Cir. May 19, 1985) (other Office marked “RT'S” or return to sender. See Dkt. No. citations omitted)); see generally Rule 41.2(b) of the 14.

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Not Reported in F.Supp., 1996 WL 481534 (N.D.N.Y.) (Cite as: 1996 WL 481534 (N.D.N.Y.)) Local Rules of Practice for the Northern District of New York.

This matter cannot proceed without notification to the Court by Freeman of her current address. Therefore, it is hereby:

ORDERED, that this action is dismissed, See Rule 41.2(b) of the Local Rules of Practice for the Northern District of New York, and it is further;

ORDERED, that the Clerk serve a copy of this Order on Freeman by regular mail at her last known address and on Steven A. Smith, Esq., attorney for the defendant.

*2 IT IS SO ORDERED.

N.D.N.Y.,1996. Freeman v. Lundrigan Not Reported in F.Supp., 1996 WL 481534 (N.D.N.Y.)

END OF DOCUMENT Westlaw. Page | Not Reported in F.Supp.2d, 2005 WL 2205816 (W.D.N.Y.) (Cite as: 2005 WL 2205816 (W.D.N.Y.)) This motion arises from a discovery ruling issued H by the Honorable Hugh B. Scott, United States Mag- Only the Westlaw citation is currently available. istrate Judge. On October 15, 2002, Defendants filed a Motion to Compel Plaintiff to respond to their First Set of Interrogatories because Plaintiff's initial re- United States District Court, sponse had been inadequate. On May 27, 2003, Judge WD. New York. Scott granted Defendants' Motion to Compel and Wattie FOLK, Plaintiff, directed Plaintiff to file appropriate interrogatory responses within twenty days. Despite being granted P. RADEMACHER, et al., Defendants. an extension of time in which to respond, Plaintiff failed to file his interrogatory response. As a result, on No. 00-CV-199S. August 19, 2003, Defendants filed a Motion to Dis- Sept. 9, 2005. miss pursuant to Rules 41(b) and 37(b) of the Federal Rules of Civil Procedure. Wattie Folk, Great Meadow Corr. Facility, Comstock, NY, pro se. On November 5, 2003, this Court denied De- fendants' Motion to Dismiss after Plaintiff satisfacto- William Lonergan, New York State Attorney Gen- rily explained the reason he failed to comply with eral's Office, Stephen F. Gawlik, Assistant Attorney Judge Scott's Order. This Court granted Plaintiff an General, Buffalo, NY, for Defendants. additional thirty days within which to file his response to Defendants’ First Set of Interrogatories. Plaintiff DECISION AND ORDER filed and served his response to Defendants’ First Set SKRETNY, J. of Interrogatories on November 21, 2003. This re- L INTRODUCTION sponse, however, was simply a photocopy of the re- Plaintiff commenced this action under 42 sponse Plaintiff initially filed on August 29, 2002, the U.S.C. § 1983 on March 3, 2000, by filing a Com- one Judge Scott found to be inadequate. plaint in the United States District Court for the Western District of New York. Presently before this Consequently, Defendants filed a second Motion Court is a Motion to Dismiss filed by the remaining to Dismiss on December 19, 2003. Plaintiff filed a defendants in this case-P. Rademacher, Sgt. response in opposition. Therein, Plaintiff did not deny Stachewiez, Lt. Hendel, W.Kelley, Hartman, Fleming, that he simply re-filed his initial interrogatory re- Booker, Piasa and Sgt. Baker (“Defendants’’)-on sponse. Rather, he argued that Judge Scott did not September 2, 2004. Defendants bring their motion have dispositive jurisdiction, and therefore lacked the pursuant to Rules 41(b) and 37(b) of the Federal Rules proper authority to find his initial interrogatory re- of Civil Procedure. This is the third motion filed by sponse inadequate. Further, Plaintiff argued that he Defendants on these grounds. For the reasons stated did not fail to respond as Defendants alleged because below, Defendants’ motion is granted and this case is he did indeed file a response. dismissed with prejudice. On May 24, 2004, this Court denied Defendants’ II. BACKGROUND Second Motion to Dismiss. In doing so, however, this

Not Reported in F.Supp.2d, 2005 WL 2205816 (W.D.N.Y.) (Cite as: 2005 WL 2205816 (W.D.N.Y.)) Court rejected Plaintiff's arguments and excuses for III. DISCUSSION not complying with Judge Scott's Order. Nonetheless, A. Dismissal under Rule 41(b) For Failure to Prose- because Plaintiff is proceeding pro se, this Court de- cute termined that granting the relief Defendants requested This case first warrants dismissal based on Plain- would be too drastic a measure at that stage of the tiff's failure to prosecute, pursuant to Rule 41(b) of the litigation. See Bobal v. Rensselaer Polytecnic Inst., Federal Rules of Civil Procedure, which provides that: 916 F.2d 759, 764 (2d Cir.1990) ( “dismissal with prejudice [under Rule 37] is a harsh remedy to be used [f]or failure of the plaintiff to prosecute or to only in extreme situations ...”). This Court warned comply with these rules or any order of court, a de- Plaintiff that his lawsuit may be dismissed with prej- fendant may move for dismissal of an action or of any udice if he did not file and serve appropriate responses claim against the defendant. Unless the court in its to Defendants' First Set of Interrogatories within thirty order for dismissal otherwise specifies, a dismissal days. Cf. id. at 764 (discussing that a court may dis- under this subdivision and any dismissal not provided miss an action brought by a pro se plaintiff if such for in this rule, other than a dismissal for lack of ju- plaintiff has been advised by the court that further risdiction, for improper venue, or for failure to join a non-compliance with a court order could result in party under Rule 19, operates as an adjudication upon dismissal of the case with prejudice). the merits.

*2 On June 17, 2004, Plaintiff filed a Motion to FED. R. CIV. P. 41(b). Extend the thirty-day response deadline. By Order filed July 7, 2004, this Court directed Defendants to Rule 41(b) does not define what constitutes fail- provide Plaintiff with another copy of their First Set of ure to prosecute. However, the Second Circuit has Interrogatories, extended Plaintiff's deadline to re- stated that failure to prosecute “can evidence itself spond to August 30, 2004, and warned Plaintiff that either in an action lying dormant with no significant this was his final extension of time and that his failure activity to move it or in a pattern of dilatory tactics.” to respond could result in his case being dismissed Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 with prejudice. On August 13, 2004, Plaintiff filed his (2d Cir.1982). Dismissal pursuant to Rule 41(b) falls response to Defendants' First Set of Interrogatories. within the court's discretion. See id. at 42-43 (“the

scope of review of an order of dismissal is confined On September 2, 2004, Defendants filed their in- solely to whether the trial court has exercised its in- stant Third Motion to Dismiss pursuant to Rules 41(b) herent power to manage its affairs within the permis- and 37(b) of the Federal Rules of Civil Procedure. By sible range of its discretion”). It is, however, “a harsh Order filed October 7, 2004, this Court directed remedy to be utilized only in extreme situations.” Plaintiff to file a response to Defendants' motion on or Harding v. Fed. Reserve Bank, 707 F.2d 46, 50 (2d before October 29, 2004. On October 29, 2004, Cir.1983) (quoting Theilmann v. Rutland Hosp., Inc., Plaintiff filed a Motion for Extension of Time to re- 455 F.2d 853, 855 (2d Cir.1972) (per curiam); see also spond. By Order filed November 4, 2004, this Court Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 extended Plaintiff's response deadline to November (2d Cir.1980) (discussing the sanction of dismissal for 29, 2004, and warned Plaintiff that his failure to file a failure to prosecute as “pungent, rarely used, and response could lead to Defendants' motion being conclusive”). This is particularly true in cases in- granted as uncontested. To date, Plaintiff has not filed volving pro se litigants, where dismissal for failure to a response to Defendants' motion. prosecute should only be granted “when the circum- stances are sufficiently extreme.” Lucas v. Miles, 84 Not Reported in F.Supp.2d, 2005 WL 2205816 (W.D.N.Y.) (Cite as: 2005 WL 2205816 (W.D.N.Y.)) F.3d 532, 535 (2d Cir.1996) (citing Nita v. Connect- basic interrogatory requests and does not provide icut Dep't of Envtl. Prot., 16 F.3d 482, 487 (2d anything by way of meaningful discovery. In fact, no Cir.1994)). useful information whatsoever is contained in Plain- tiff's response. Clearly, Plaintiff alone is responsible *3 The following factors, none of which is dis- for repeatedly filing inadequate responses to De- positive, must be considered in determining whether fendants' discovery request. As a result, Defendants dismissal for failure to prosecute is warranted: (1) the still have not received any meaningful response to duration of the plaintiff's failures, (2) whether the their interrogatory requests. plaintiff received notice that further delays would result in dismissal, (3) whether the defendant is likely With respect to the second inquiry, which con- to be prejudiced by further delay, (4) whether an ap- cerns the duration of Plaintiff's failures, it has been propriate balance has been struck between alleviating almost one year that Plaintiff has failed to file a re- the court's calendar congestion and protecting the sponse to Defendants' Third Motion to Dismiss. The litigants' due process rights, and (5) whether lesser delay caused by Plaintiff's failure to response to De- sanctions would be appropriate. See United States ex fendants' interrogatory request is even more signifi- rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 255 (2d cant. Defendants filed and served their First Set of Cir.2004); Nita, 16 F.3d at 485; Feurtado v. City of Interrogatories on August 17, 2001. It has thus been New York, 225 F.R.D. 474, 477 (S.D.N.Y.2004) more than four years and Plaintiff still has not filed an (quoting Jackson v. City of New York, 22 F.3d 71, 74 adequate response. This is a failure of significant (2d Cir.1994)). In the present case, these factors weigh duration. Cf. Chira, 634 F.2d at 666-67 (delay of six in favor of dismissal. months sufficient to warrant dismissal for failure to prosecute); Antonios A. Alevizopoulos & Assoc., Inc. 1. Duration of Failures v. Comcast Int'l Holdings, Inc., No. 99 Civ. 9311, The relevant inquiry on this factor is twofold: (1) 2000 WL 1677984, at *2 (S.D.N.Y. Nov.8, 2000) whether the plaintiff is at fault for failing to prosecute, (delay of four months warranted dismissal). Thus, this and (2) whether the plaintiff's failures were of signif- Court finds that this factor weighs in favor of dis- icant duration. See Norden Sys., 375 F.3d at 255. missal. In this Court's view, all delay in this case is attributable to Plaintiff and it is of significant duration.

In this case, Plaintiff has failed in two ways. First, as noted above, Plaintiff has failed to respond to De- 2. Notice of Dismissal fendants' Third Motion to Dismiss, despite twice be- *4 The Second Circuit requires that the plaintiff ing directed by this Court to do so. Second, and more receive adequate notice that the case could be dis- significant, Plaintiff has failed to adequately comply missed due to inaction. See Martens v. Thomann, 273 with Judge Scott's discovery Order of May 27, 2003. F.3d 159, 180-81 (2d Cir.2001). In the present case, Plaintiff has been afforded numerous opportunities to Plaintiff had adequate notice. First, both the initial file an appropriate response to Defendants' First Set of Scheduling Order on Defendants' Third Motion to Interrogatories. This Court alone has twice extended Dismiss and the Order granting Plaintiff's request for Plaintiff the benefit of the doubt by denying two Mo- an extension of time warned Plaintiff that his failure to tions to Dismiss for Plaintiff's failure to engage in file a response as directed could lead to Defendants' discovery. While Plaintiff did, in fact, file a response motion being granted as uncontested. Second, this to Defendants' First Set of Interrogatories on August Court's Decision and Order denying Defendants' First 13, 2004, his response is wholly inadequate. Plaintiff's Motion to Dismiss explicitly stated that Defendants response contains multiple objections to Defendants' were free to seek dismissal of Plaintiff's Complaint if Not Reported in F.Supp.2d, 2005 WL 2205816 (W.D.N.Y.) (Cite as: 2005 WL 2205816 (W.D.N.Y.)) he failed to respond to the First Set of Interrogatories pare and file numerous scheduling orders, as well as as directed. Moreover, this Court's Decision and Order decide three separate motions to dismiss. While this denying Defendants' Second Motion to Dismiss has been a needless expenditure of judicial resources, warned Plaintiff that his failure to file appropriate this Court cannot conclude that the overall effect on responses to Defendants' First Set of Interrogatories docket congestion has been significant. could result in this action being dismissed with prej- udice. Because Plaintiff was repeatedly put on notice *5 This Court notes, however, that Plaintiff has that his case could be dismissed due to his continued been afforded Due Process rights in that he has been inaction, this factor strongly weighs in favor of dis- provided numerous opportunities to comply with the missal. See Lyell Theatre, 682 F.2d at 42-43 (Rule Orders of this Court. Thus, Plaintiff's own failure to 41(b) dismissal upheld where plaintiff was warned by litigate this matter is not a denial of Due Process. See opposing counsel and the court that dismissal for Dodson v. Runyon, 957 F.Supp. 465, 470 failure to prosecute was possible). (S.D.N.Y.1997) (“any claim that plaintiff's due pro- cess rights were violated thus cannot prevail because 3. Prejudice to Defendants the delay and resultant dismissal of plaintiff's case are The third factor requires an inquiry into whether of his own making”); cf. Feurtado, 225 F.R.D. at 480 the defendant has been prejudiced by the plaintiff's (repeated failure to comply with court orders dimin- inaction. “Prejudice to defendants resulting from un- ishes a plaintiff's right to present his claims). Ac- reasonable delay may be presumed, but in cases where cordingly, this factor also weighs in favor of dismissal. delay is more moderate or excusable, the need to show actual prejudice is proportionately greater.” Lyell 5. Consideration of Lesser Sanctions Theatre, 682 F.2d at 43 (citations omitted). In Lyell Finally, the Second Circuit requires district courts Theatre, the court presumed prejudice where the to consider whether lesser sanctions would suffi- plaintiff on numerous occasions failed to file docu- ciently remedy any prejudice resulting from the ments as directed by the court. Id. at 39-40, 43. Similar plaintiff's inaction. See Norden Sys., 375 F.3d at 257. to the present case, the plaintiff in Lyell Theatre con- Upon reviewing the entire record in this case, it is the tinued to ignore the court's orders even after he had opinion of this Court that Plaintiff has no intention of been warned that he was risking dismissal. Id. at 39. complying with this Court's Orders or properly liti- Under Lyell Theatre, the prejudice to Defendants in gating this case. Plaintiff has repeatedly ignored court this case may be presumed. Thus, this factor weighs in orders by failing to file a response to Defendants' favor of dismissal. Third Motion to Dismiss and to Defendants' First Set of Interrogatories. Given the procedural history of this 4. Balance between Calendar Congestion and Due case, this Court finds that any sanction short of dis- Process Rights missal would be ineffective. See Smith v. Human Res. The fourth factor requires the court to consider Admin. of New York City, 2000 WL 307367, at *3 the balance between calendar congestion and the (S.D.N.Y. Mar.24, 2000) (finding lesser sanctions plaintiff's right to present his or her case. See Norden inappropriate where past court orders did not motivate Sys., 375 F.3d at 257. In this regard, “ ‘a court must not the plaintiff to move the case forward); Alevizopoulos, let its zeal for a tidy calendar overcome its duty to 2000 WL 1677984, at 4 (finding lesser sanctions in- justice.” ’ Feurtado, 225 F.R.D. at 480 (quoting Davis appropriate based on repeated failures to comply with v. United Fruit Co., 402 F.2d 328, 331 (2d Cir.1968)). court orders). Thus, this final factor also weighs in Plaintiff's failure to comply with Judge Scott's dis- favor of dismissal. covery order has resulted in this Court having to pre- Not Reported in F.Supp.2d, 2005 WL 2205816 (W.D.N.Y.) (Cite as: 2005 WL 2205816 (W.D.N.Y.)) Accordingly, this Court finds that dismissal of this case is warranted under Rule 41(b) for Plaintiff's For all of the reasons discussed above, this Court failure to prosecute. finds that dismissal of this case is also proper under Rule 37(b) for Plaintiff's failure to comply with dis- B. Dismissal under Rule 37(b) For Failure to Comply covery orders. with Discovery Orders “A district court may impose sanctions when ‘a IV. CONCLUSION party ... fails to obey an order to provide or permit Mindful of the fact that pro se cases should not discovery.” ’ Burns v. Imagine Films Entm't, Inc., 164 easily be dismissed for procedural deficiencies, this F.R.D. 594, 598 (W.D.N.Y.1996) (quoting FED. R. Court concludes that Plaintiff's failures in this case go CIV. P. 37(b)). Rule 37 of the Federal Rules of Civil beyond procedural deficiencies, and constitute actual Procedure, which concerns the discovery obligations neglect. Plaintiff has failed to diligently prosecute this of civil litigants, vests district courts with “broad action in any manner, and has failed to comply with power” and discretion to impose sanctions, including orders of this Court. As such, because each of the dismissal, on parties who fail to adhere to discovery factors relevant to the Rule 41(b) and Rule 37(b) orders. See Friends of Animals, Inc. v. United States analysis favor dismissal, this Court will dismiss this Surgical Corp., 131 F.3d 332, 334 (2d Cir.1997) (per case with prejudice. curiam); see also Jones v. J.C. Penney's Dep't Stores, Inc., 228 F.R.D. 190, 195 (W.D.N.Y.2005) (identify- V. ORDERS ing dismissal of the action as an available sanction IT HEREBY IS ORDERED, that Defendants' under Rule 37); JSC Foreign Econ. Ass'n. Tech- Third Motion to Dismiss (Docket No. 145) is nostroyexport v. Int'l Dev. & Trade Servs., Inc., No. GRANTED. 03 Civ. 5562, 2005 WL 1958361, at *9 (S.D.N.Y.

Aug. 16, 2005). FURTHER, that this case is dismissed with

prejudice pursuant to Rules 41(b) and 37(b) of the *6 While Rule 37 dismissal is a drastic remedy to Federal Rules of Civil Procedure. be reserved only for extreme circumstances, it “is

warranted ... where a party fails to comply with the FURTHER, that the Clerk of the Court is directed court's discovery orders willfully, in bad faith, or to close this case. through fault.” John B. Hull, Inc. v. Waterbury Pe-

troleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir.1988) (and cases cited therein); see also Societe SO ORDERED. Int'l v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958) (sanctions under Rule 37 justi- W.D.N.Y.,2005. fied where responding party has control over infor- Folk v. Rademacher mation requested and fails or refuses production Not Reported in F.Supp.2d, 2005 WL 2205816 without showing of inability to comply with court's (W.D.N.Y.) order). Moreover, “dismissal with prejudice may be imposed even against a plaintiff who is proceeding pro END OF DOCUMENT se, so long as a warning has been given that noncom- pliance can result in dismissal.” Valentine v. Museum

of Modern Art, 29 F.3d 47, 50 (2d Cir.1994) (per curiam). Westlaw. Page 1 Not Reported in F.Supp.2d, 2008 WL 1758644 (S.D.N.Y.), 70 Fed.R.Serv.3d 397 (Cite as: 2008 WL 1758644 (S.D.N.Y.)) the facts relevant to this Order, which are recounted in > detail in the OSC, as well as prior orders and tran- scripts in this matter, including Nolan I. However, certain facts post-date those orders and are recounted United States District Court, here. S.D. New York. John NOLAN, Plaintiff, y The Court in Nolan I imposed civil contempt PRIMAGENCY, INC. et al., Defendants. sanctions on Mr. Piccone and Mr. Flaum, in the amounts of $750.00 and $200.00, respectively. See Nolan I at *1-4. Nolan I also included the following No. 07 Civ. 134(RJS). we directives: April 16, 2008. Additionally, Mr. Piccone has until March 17, 2008, MEMORANDUM AND ORDER to comply with the Court's November 1, 2008 and eee J. ees oe ons Judge. -ssued January 3, 2008 orders. This means that by March On January 31, 008, Court issue an 17, 2008, Mr. Piccone must (1) properly file the Order to Show Cause (the OSC") sua sp onte, di- Amended Complaint via the Court's electronic case recting counsel for plaintiff John Nolan, Mr. Louis A. system (“ECF”); (2) submit a courtesy copy of the Piccone, Esq., and counsel for defendants Primagen- Amended Complaint to chambers in accordance cy, Inc., Steven Lebetkin, and Conrad J. Isoldi (“De- with the Individual Practices of the undersigned; (3) fendants ), Mr. Neil R. Flaum, Esq., to show cause confer with Defendants’ counsel, Mr. Flaum, re- why this case should not be dismissed and/or why garding a joint proposed Case Management Plan; sanctions and a finding of civil contempt on Mr. Pic- (4) submit a proposed Plan to the Court by hand cone and/or Mr. Flaum should not issue given the . . . . . delivery, email, or regular mail, provided that it failure of plaintiff to diligently prosecute this case, and reaches chambers by March 17, 2008; and (5) the failure of the parties to follow Court orders. After os . submit a joint status letter, along with Mr. Flaum, counsel for plaintiff failed to appear on the return date outlining what, if anything, has transpired in this of the OSC, the Court issued an order on March 3; case since the November 1, 2007 conference. Mr. 2008 tmposing sanctions on the parties, but declining Piccone is also directed to forward a copy of this to dismiss the case, provided that the parties complied order to his client, plaintiff John Nolan and file with the directives contained in that order. See Nolan . . . □ proof of service electronically with the Court .... v. Primagency, Inc., No. 07 Civ. 134(RJS), 2008 WL Failure to comply with this Order in any respect 650387 (S .D.N.Y. Mar. 3, 2008) (“Nolan I” ). Plain- oe : failed iy with th der; hand shall result in dismissal of this case pursuant to HEE Talled’ to comp y Wi at order in each and’ every Rule 41(b) of the Federal Rules of Civil Proce- respect. Accordingly, pursuant to Federal Rule of dure Civil Procedure 41(b), this action is dismissed with prejudice. Nolan I, 2008 WL 650387 at *3 (emphasis add- ed). With regard to Mr. Flaum, Nolan I contained the I. BACKGROUND . 4 following directives: The Court presumes the parties’ familiarity with In addition, Mr. Flaum is given a limited amount of

Not Reported in F.Supp.2d, 2008 WL 1758644 (S.D.N.Y.), 70 Fed.R.Serv.3d 397 (Cite as: 2008 WL 1758644 (S.D.N.Y.)) time in which to comply with past orders. This “missed the boat” (id. at 8), he sent in payment of the means that Mr. Flaum must (1) properly file an $200.00 sanction on April 7, 2008 and filed the status answer to the Amended Complaint via the Court's letter that day (see id.), 21 days after the deadline ECF system by April 7, 2008, assuming, of course, contained in Nolan I.FN2 It is unclear whether Mr. that the Amended Complaint has been filed as of Flaum ever forwarded a copy of Nolan I to his clients March 17, 2008; (2) submit a courtesy copy of the as directed, but it is certainly clear from the docket Answer to chambers in accordance with the Indi- sheet in this case that Mr. Flaum failed to file the vidual Practices of the undersigned; (3) confer with required proof of service. See Nolan I, 2008 WL Plaintiff's counsel, Mr. Piccone, regarding a joint 650387, at *4. proposed Case Management Plan; (4) submit a proposed Plan to the Court by hand delivery, email, FN1. Mr. Piccone asserted on the record at or regular mail, provided that it reaches chambers the April 8, 2008 conference that he had in by March 17, 2008; and (5) submit a joint status fact filed the amended complaint in No- letter, along with Mr. Piccone, no later than March vember, 2007, and that he could submit proof 17, 2008, outlining what, if anything, has transpired demonstrating this fact. (See Transcript of in this case since the November 1, 2007 conference. April 8, 2008 Conference (“Apr. 8 Tr.”) at If for some reason a joint letter is not possible, Mr. 5-7.) While it may be true that Mr. Piccone Flaum shall submit a status letter to the Court by did technically file a hard copy of the March 17, 2008 explaining why the submission of a amended complaint in this matter, the joint letter was not possible. Additionally, Mr. amended complaint was never properly filed Flaum shall be present at the conference on Tues- on ECF, because he never emailed the day, April 8, 2008 at 10:30 a.m., and is also directed amended complaint to case_openings@nysd to forward a copy of this Order to his clients and file . uscourts.gov, pursuant to ECF procedure. proof of service electronically with the Court. Fail- As a result of his failure to do so, the ure to strictly comply with this order shall result in amended complaint is not available on ECF. further sanctions. This is exactly what the Court sought to ameliorate when it ordered Mr. Piccone to *2 Id. at *4. The Court in Nolan I stated three “properly file” the amended complaint on separate times that the case would be dismissed if ECF. See Nolan I, 2008 WL 650387, at *3. In plaintiff failed to comply with any of these directives. any event, regardless of the extent of Mr. Id. at *1-5. Piccone's non-compliance with this portion of Nolan I, this dismissal is based on plain- Incredibly, as of April 8, 2008, as noted in the tiff's counsel's failure to follow numerous record on that day's conference, the parties collec- other directives, as outlined in this and prior tively had failed to comply with even one of the orders. directives contained in Nolan I. (See Apr. 8 Tr. at 3.) Mr. Piccone admitted on the record that he had not FN2. A letter from Mr. Flaum addressed to complied with any of the directives in Nolan I, and the Court and dated April 7, 2008 was re- that his failure to comply with Nolan I was due to ceived in Chambers on April 9, 2008, and personal issues that the Court does not recount here contained a check payable to the Clerk of the but are referenced, at least in part, in the transcript of Court in the amount of $200.00. That check the April 8, 2008 telephone conference.FN1 (See id. at was tendered to the cashier in the Clerk's of- 3-4.) Mr. Flaum noted that although he had also fice on April 9, 2008. Not Reported in F.Supp.2d, 2008 WL 1758644 (S.D.N.Y.), 70 Fed.R.Serv.3d 397 (Cite as: 2008 WL 1758644 (S.D.N.Y.)) Rule 41(b) should employ a balancing test, consider- II. DISCUSSION ing the following factors: A. Legal Standard for Dismissal Pursuant to Rule 41(b) (1) the duration of the plaintiff's failure to comply Rule 41(b) expressly authorizes involuntarily with the court order, (2) whether plaintiff was on dismissal “[i]f the plaintiff fails to prosecute or to notice that failure to comply would result in dis- comply with these rules or a court order.” missal, (3) whether the defendants are likely to be Fed.R.Civ.P. 41(b); see also LeSane v. Hall's Sec. prejudiced by further delay in the proceedings, (4) a Analyst, Inc., 239 F.3d 206, 209 (2d Cir.2001). The balancing of the court's interest in managing its “primary rationale” for dismissal pursuant to Rule docket with the plaintiffs interest in receiving a fair 41(b) is “the failure of plaintiff in his duty to process chance to be heard, and (5) whether the judge has his case diligently.” Lyell Theatre Corp. v. Loews adequately considered a sanction less drastic than Corp., 682 F.2d 37, 43 (2d Cir.1982). Dismissal pur- dismissal. suant to Rule 41(b) is committed to the discretion of the district court, and may be imposed sua sponte. See Lucas, 84 F.3d at 535 (2d Cir.1996); see also Link v. Wabash Railroad Co., 370 U.S. 626, 633 United States ex rel. Drake v. Norden Sys., Inc., 375 (1962); LeSane, 239 F.3d at 209. Rule 41(b) provides F.3d 248, 254 (2d Cir.2004). Generally, no one factor that such a dismissal “operates as an adjudication on is dispositive. Shannon v. Gen. Elec. Co., 186 F.3d the merits” unless the dismissal order states otherwise. 186, 194 (2d Cir.1999) (citing Nita v. Conn. Dep't of See Lyell Theatre, 682 F.2d at 42-43. Envtl. Prot., 16 F.3d 482, 485 (2d Cir.1994)).

Dismissal is an extreme and “harsh” remedy only B. Analysis to be imposed in the most “extreme” situations, and Weighing all of the above factors, the Court the Court must consider the entire record in deciding dismisses this case with prejudice pursuant to Rule whether dismissal is appropriate. See Lucas v. Miles, 41(b). 84 F.3d 532, 535 (2d Cir.1996); Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir.1993). Howev- 1. Duration er, in appropriate cases, dismissal must be available, The first element of the balancing test, the dura- “not merely to penalize those whose conduct may be tion of plaintiffs failures, requires that the court con- deemed to warrant such a sanction, but to deter those sider “(1) whether the failures to prosecute were those who might be tempted to such conduct in the absence of the plaintiff; and (2) whether these failures were of of such a deterrent.” Nat'l Hockey League v. Metro. significant duration.” Martens v. Thomann, 273 F.3d Hockey Club, Inc., 427 U.S. 639, 643 (1976). While 159, 180 (2d Cir.2001) (citing Spencer v. Doe, 139 dismissal based on the actions of a party's attorney F.3d 107, 113 (2d Cir.1998)); see also United States may have serious consequences for the represented ex rel. Drake, 375 F.3d at 255. The court must also party, the Supreme Court has recognized that “[t]here consider whether any of the delays are attributable to is certainly no merit to the contention that dismissal of the defendant. See Jackson v. City of New York, 22 petitioner's claim because of his counsel's unexcused F.3d 71, 75 (2d Cir.1994). conduct imposes an unjust penalty on the client.” Link,

370 U.S. at 633. Here, while the various failures to follow court

orders can be attributed to both parties, plaintiff is *3 The Second Circuit has instructed that a dis- primarily to blame for the fact that this case has not trict court weighing dismissal of a case pursuant to Not Reported in F.Supp.2d, 2008 WL 1758644 (S.D.N.Y.), 70 Fed.R.Serv.3d 397 (Cite as: 2008 WL 1758644 (S.D.N.Y.)) advanced in more than six months. See Nolan I, 2008 ment weighs in favor of dismissal. WL 650387, at *5. This period of delay is particularly significant given that, during that time, the action did 3. Prejudice not merely lie dormant, but the parties ignored and *4 The third element requires that the Court con- disobeyed multiple court orders designed to move the sider the prejudice of further delay to the defendant. case along. The six-month period at issue here thus is See Lucas, 84 F.3d at 535 (2d Cir.1996). Where the of sufficient duration to weigh in favor of dismissal. delay is unreasonable, prejudice may be presumed as a See Lyell Theatre Corp., 682 F.2d at 42-43 (noting matter of law. Shannon, 186 F.3d at 195 (citing Lyell that Rule 41 dismissal may be warranted “after merely Theatre, 682 F.2d at 43). This is generally because a matter of months”). “delay by one party increases the likelihood that evi- dence in support of the other party's position will be 2. Notice lost and that discovery and trial will be made more The second element to be considered is whether difficult.” Id. However, “in cases where delay is more the plaintiff was on notice that further delay would moderate or excusable, the need to show actual prej- result in dismissal of the case. See Lucas, 84 F.3d at udice is proportionally greater.” Lyell Theatre, 682 535 (2d Cir.1996). The Second Circuit has held that F.2d at 43. “Although a court cannot deny a plaintiff where a court puts a plaintiff on notice that the court is the right to be heard in the interest of avoiding docket considering dismissal, and a plaintiff fails to file a congestion, where a plaintiff could have avoided document explaining the failures and outlining why dismissal ‘there can be no claim by plaintiff that [its] the action should not be dismissed, this element has due process rights have been denied.’ “ Jacobs v. been met. See Shannon, 186 F .3d at 194-95. County of Westchester, No. 99 Civ. 4976(WCC), 2008 WL 199469, at *6 (S.D.N.Y. Jan. 22, 2008) (quoting The notice element strongly weighs in favor of Europacific Asset Mgmt. Corp. v. Tradescape Corp., dismissal of this case. Plaintiff was given notice of the 233 F.R.D. 344, 354 (S.D.N.Y.2005) (alteration in Court's intent to dismiss the action in Nolan I, which original)). stated three times that the action would be dismissed in the event of the plaintiffs failure to comply with its Defendants' counsel is to blame for at least some directives. See Nolan I, 2008 WL 650387, at *1-5. In of the delay in this matter. Because of this, and be- addition, the OSC gave both parties an opportunity to cause only six months have passed, the Court will not submit papers and to appear in Court to contest dis- presume prejudice. While it is demonstrably unrea- missal. Plaintiff failed to submit papers in response to sonable to fail to comply with court orders for six the OSC, or to appear on the return date, and failed to months, the unreasonable delay present in other cases follow even one of the directives in Nolan I. Fur- in which courts presumed prejudice is absent here. See thermore, the parties had previously been warned that Shannon, 186 F.3d at 195 (finding presumption of the Court would consider sanctioning the parties for prejudice because events at issue in lawsuit had taken failure to comply with Court orders. (See Jan. 2, 2008 place over a decade earlier); Peart v. City of New York, Order.) Finally, plaintiff himself appeared at the Jan- 992 F.2d 458, 462 (2d Cir.1993) (citing potential for uary 30, 2008 conference before the Court, and was witness recollection to diminish or witness unavaila- informed of the Court's intention to issue the OSC and bility as the reason for a presumption of prejudice due consider dismissing the case absent further action. to unreasonable delay); Dodson, 957 F.Supp. at 470 (See Jan. 30, 2008 Tr. at 3-5.) Thus, because it is (S.D.N.Y.1997) (holding that dismissal was appro- abundantly clear that the Court gave plaintiff notice of priate after a five-year delay because the court can the impending dismissal of the case, the second ele- presume that witnesses' “memories have faded” when Not Reported in F.Supp.2d, 2008 WL 1758644 (S.D.N.Y.), 70 Fed.R.Serv.3d 397 (Cite as: 2008 WL 1758644 (S.D.N.Y.)) eleven years have passed since the events giving rise Court has adequately considered remedies other than to plaintiffs cause of action). Thus, the Court finds that dismissal. “It is clear that a district judge should em- the prejudice factor does not weigh in favor of dis- ploy the remedy of dismissal ‘only when he is sure of missal. the impotence of lesser sanctions.’ “ Dodson, 86 F.3d at 39 (citing Chira, 634 F.2d at 665). “In deciding on 4. Balancing the Court's and Plaintiff's Interests the suitability of lesser sanctions, and whether the With respect to the fourth element, the balancing sanctions should be aimed primarily against the party of the court's interests and the plaintiff's right to a fair or the attorney, it can be important for the district court adjudication on the merits, the Second Circuit has to assess the relative roles of attorney and client in instructed that “[t]here must be compelling evidence causing the delay....” Id. at 40. “[T]he more the delay of an extreme effect on court congestion before a was occasioned by the lawyer's disregard of his obli- litigant's right to be heard is subrogated to the con- gation toward his client, the more this factor argues in venience of the court.” Lucas, 84 F.3d at 535-36. As favor of a less drastic sanction imposed directly on the such, the plaintiff's failure to prosecute must be “vex- lawyer.” Id. However, this Court must be guided by atious and burdensome” on the Court's ability to the Supreme Court's pronouncement that “[t]here is manage its docket, as opposed to being merely “silent certainly no merit to the contention that dismissal of and unobtrusive.” LeSane, 239 F.3d at 210. petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. Peti- tioner voluntarily chose this attorney as his repre- Plaintiff's right to an opportunity to be heard is sentative in the action, and he cannot now avoid the not taken lightly by this Court. However, this action consequences of the acts or omissions of this freely has been pending for over a year, and there has been selected agent.” Link, 370 U.S. at 633-34. no significant progress of any kind for six months.

During that time, this Court has issued six separate orders relating to the parties' various failures, and held Although it is without question that plaintiff's three conferences relating to the parties' inability to failures in this case are solely attributable to his advance the case. While the Court has less knowledge counsel, Mr. Piccone, plaintiff himself was on notice of what transpired prior to this action being reassigned of Mr. Piccone's shortcomings up to and including his to the undersigned on September 4, 2007, the parties' failure to appear on January 30, 2008. Nevertheless, as ongoing failure to comply with orders of this Court of the April 8, 2008 telephone conference, Mr. Pic- has taken up a grossly disproportionate amount of the cone was still the counsel of record in this matter. Court's time since October, 2007. Plaintiff's duty to Plaintiff voluntarily chose Mr. Piccone to represent prosecute the case diligently “is designed to achieve him in this action. Thus, while dismissal is an unfor- ‘fairness to other litigants, whether in the same case or tunate result for plaintiff, it is not an unjust result. See merely in the same court as competitors for scarce Link, 370 U.S. at 633-34. judicial resources....' “ Dodson, 957 F.Supp. at 470 (quoting Chira v. Lockheed Aircraft Corp., 634 F.2d As to the consideration of lesser sanctions, this 664, 668 (2d Cir.1980)). As such, the Court finds that factor clearly weighs in favor of dismissal. As re- plaintiff's failures have been “vexatious and burden- flected in the record of this case, the Court has given some” and accordingly, the fourth element weighs in plaintiff numerous opportunities to be heard in rela- favor of dismissal. tion to his failure to follow court orders. Prior ad- monishments and warnings have been wholly inef- 5. Efficacy of Lesser Sanctions fective. Indeed, the Court previously issued a civil *5 Finally, the fifth element looks to whether the contempt sanction against Mr. Piccone in the amount Not Reported in F.Supp.2d, 2008 WL 1758644 (S.D.N.Y.), 70 Fed.R.Serv.3d 397 (Cite as: 2008 WL 1758644 (S.D.N.Y.)) of $750.00 in order to induce his compliance with The Clerk of the Court is respectfully directed to close future orders. See Nolan I, 2008 WL 650387 at *3. As this case. of the date of this Order, that sanction has not been paid. Moreover, as noted above, counsel has not SO ORDERED. complied with any of the directives contained in Nolan I. As such, and based on the record in this case, the S.D.N.Y.,2008. Court is convinced that lesser sanctions will have no Nolan v. Primagency, Inc. impact on plaintiff's, or his counsel's, conduct or Not Reported in F.Supp.2d, 2008 WL 1758644 compliance with this court's orders. (S.D.N.Y.), 70 Fed.R.Serv.3d 397

As four of the five elements favor dismissal under END OF DOCUMENT Rule 41(b), the Court finds that dismissal is appropri-

ate, and this case is accordingly dismissed with prej-

udice pursuant to Rule 41(b). While the Court is sympathetic to the personal issues encountered by plaintiffs counsel over the past few months, as alluded to by Mr. Piccone during the April 8, 2008 telephone conference, that fact does not alleviate Mr. Piccone's duties to the Court and his client. A simple letter to the Court explaining his plight could have resulted in the extension of deadlines, a short stay of the action, or other relief, including obtaining new counsel for plaintiff. Mr. Piccone has made no showing that he was unable to contact the Court during the time that he was preoccupied with personal matters. The Court recognizes that dismissal of this case with prejudice may have the result of denying plaintiff any relief that he might have obtained on his claims. However, plaintiff is responsible for his choice of counsel, and did not choose at any point, even after being advised of Mr. Piccone's failures, to replace him as counsel. See Lastra v. Weil, Gotshal & Manges LLP, No. 03 Civ. 8756(RJH)(RLE), 2005 WL 551996, at *4 (S.D.N.Y. Mar. 8, 2005) (“Claims by a litigant that he should be excused from his attorney's actions because of alleged fraudulent conduct and disobeyance of the litigant's orders may give rise to a claim for malprac- tice, but does not constitute an extraordinary circum- stance or excusable neglect.”)

III. CONCLUSION *6 For the foregoing reasons, this action is DISMISSED with prejudice pursuant to Rule 41(b).