Rubin v. Abbott Laboratories

319 F.R.D. 118, 96 Fed. R. Serv. 3d 256, 2016 U.S. Dist. LEXIS 162970, 2016 WL 6820740
CourtDistrict Court, S.D. New York
DecidedNovember 9, 2016
DocketNo. 13-cv-8667 (CM)
StatusPublished
Cited by26 cases

This text of 319 F.R.D. 118 (Rubin v. Abbott Laboratories) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rubin v. Abbott Laboratories, 319 F.R.D. 118, 96 Fed. R. Serv. 3d 256, 2016 U.S. Dist. LEXIS 162970, 2016 WL 6820740 (S.D.N.Y. 2016).

Opinion

MEMORANDUM DECISION AND ORDER GRANTING DEPENDANT’S MOTION TO DISMISS FOR FAILURE TO PROSECUTE

Hon. Colleen McMahon, Chief Judge:

Nearly three years ago, plaintiff Faye Rubin, represented by counsel, brought this employment-related discrimination action against Abbott Laboratories (“Abbott”) alleging that she was discriminated and retaliated against on the basis of her gender or pregnancy, that she experienced a hostile work environment, and that she was denied of equal pay in violation of federal, state, and municipal laws. Presently before the Court is Abbott’s motion to dismiss Rubin’s complaint for failure to prosecute or, in the alternative, to preclude Rubin from introducing certain evidence at trial. For the following reasons, Abbott’s motion to dismiss with prejudice is granted; Abbott’s alternative motion to preclude is denied as moot.

BACKGROUND

For purposes of this motion to dismiss, the facts pleaded in the Complaint will be presumed true.

Rubin filed a complaint against her former employer, Abbott, on December 6, 2013, asserting nine causes of action under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law and the New York City Human Rights Law. On February 11, 2014, Abbott moved to dismiss the action, which the Court granted in part and denied in part on June 4, 2014. The case was then referred to mediation and following an unsuccessful mediation session on November 26, 2014, the Court issued a case management plan that established dates and deadlines for discovery and pre-trial submissions.

Abbott moved for summary judgment on April 2, 2016, to which Rubin filed an opposition but not a counter-statement of facts, per Local Rule 56.1. Pending the Court’s decision on Abbott’s motion for summary judgment, the Court ordered the parties to file a joint pre-trial order, instructing that the parties’ failure to do so could result in dismissal or default. Rubin ignored the Court’s order by failing to file any pre-trial materials. Abbott was forced to file a pre-trial order on its own.

The Court ultimately granted in part and denied in part Abbott’s summary judgment motion on September 23, 2015. Over the next ten months, Rubin did nothing to press what was left of her case. The Court issued a trial notice to the parties on July 25, 2016. On August 1, 2016, Abbott moved to dismiss this case for Rubin’s failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b). In the alternative, Abbott moved to preclude Rubin from introducing certain evidence at trial. Rubin did not respond.

By Order dated October 17, 2016, this Court ordered Rubin to file an opposition to Abbott’s motion to dismiss by October 25, 2016 to file her opposition. She has not done so, and the time for doing so has now passed. Therefore, the Court will treat Defendant’s motion as unopposed.

DISCUSSION

I. Standard

Federal Rule of Civil Procedure 41(b) is a discretionary measure that allows courts to dismiss a case with prejudice where the “plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order....” Fed. R. Civ. P. 41(b). The Second Circuit has held that dismissal for lack of prosecution is a “harsh remedy” that should “be utilized only in extreme situations.” United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004) (“Drake").

Under the rubric set out in Drake, dismissal is proper if, “in light of the record as a whole,” balancing the following factors weighs in favor of dismissal: “(1) the plaintiffs failure to prosecute caused a delay of significant duration; (2) plaintiff was given [120]*120notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiffs right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser sanctions.” Id,

As discussed below, balancing these five factors leads the Court to conclude that the dismissal of Rubin’s complaint is warranted.

II. The Five Drake Factors Counsel in Favor of Dismissal

A. Factor One: Delay

The first factor—delay of significant duration—is examined in two parts: (1) whether the failures to prosecute were those of the plaintiff, and (2) whether those failures were of significant duration. Id. at 255.

First, the delay in prosecution of this action, which began after this Court granted in part and denied in paid; Abbott’s summary judgment motion in May 2015, is unquestionably due to Rubin. For the last seventeen months, Rubin has failed to provide any written responses to Abbott’s document or interrogatory requests or disclose any expert identities or opinions, ignored two court orders, and not taken a single step to ready her claims for trial or otherwise allow Abbott to prepare a defense. She also neglected to respond to Abbott’s motion to dismiss this action for failure to prosecute. This is precisely the sort of behavior that has, in the past, led to the dismissal of complaints for failure to prosecute. See e.g., Lopez v. Catholic Charities of the Archdiocese, No. 00-cv-1247, 2001 WL 50896, at *4-5 (S.D.N.Y. Jan. 22, 2001).

The failure to prosecute this action cannot be attributed to Abbott. Abbott has sought to move this lawsuit forward, even filing without Rubin’s input what was ordered to be a joint pre-trial order.

Second, the seventeen-month delay is of significant duration, The Second Circuit has not indicated exactly how much time must elapse before a delay qualifies as “significant,” but precedent suggests that delays of even less than one year may qualify. Indeed, at least one of my colleagues has concluded that a delay of between five and ten months “falls comfortably within the time frames found sufficient in successful Rule 41(b) motions to dismiss.” Peters-Turnbull v. Bd. of Educ. of City of New York, No. 96-cv-4914, 1999 WL 959375, at *3 (S.D.N.Y. Oct. 20, 1999). Other courts have dismissed cases under Rule 41(b) for delays of six months, Chira v. Lockheed Aircraft Corp., 634 F.2d 664 (2d Cir. 1980), and even four months, Deptola v. Doe, No. 04-cv-1379, 2005 WL 2483341, at *2 (E.D.N.Y. Oct. 7, 2005).

Rubin’s continuous silence over the last seventeen months—despite a direct court order to act—speaks to her lack of interest in pursuing this action. Indeed, it is highly significant that Rubin has done nothing to rectify her defalcations in the three-plus months since Abbott moved to dismiss this action. The entire period of non-prosecution is comfortably beyond whatever nonspecific minimum the law requires before Rule 41(b) dismissal becomes appropriate.

B. Factor Two: Notice

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Bluebook (online)
319 F.R.D. 118, 96 Fed. R. Serv. 3d 256, 2016 U.S. Dist. LEXIS 162970, 2016 WL 6820740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubin-v-abbott-laboratories-nysd-2016.