Yarbrough v. Broome County, New York

• Court: District Court, N.D. New York
• Decided: September 27, 2024
• Docket: 3:23-cv-00671
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________

SARA-JUDITH YARBROUGH, Beneficiary,

Plaintiff,

v. 3:23-CV-0671 (AMN/ML) BROOME CNTY., NEW YORK, Municipal Corp.; et al.,

Defendants. _____________________________________________

APPEARANCES: OF COUNSEL:

SARA-JUDITH YARBROUGH Pro Se Plaintiff 52 Alexander Road Chenango Forks, New York 13746

MIROSLAV LOVRIC, United States Magistrate Judge

REPORT and RECOMMENDATION I. BACKGROUND Plaintiff Sara-Judith Yarbrough (“Plaintiff”), who is proceeding pro se, has commenced this action against Broome County, New York; Town of Barker, New York; Jason T. Garner; Michael T. Decker; Robert G. Behnke; Joseph A. Mihalko; Joseph F. Cawley; Edward Beecher; Frederick J. Akshar; Daniel J. Reynolds; Mark R. Whalen; Stephen J. Flagg; Scott D. Baker; Kelly F. Wildoner; Kim A. Myers; Greg W. Bladwin; Matthew J. Pasquale; Jason E. Shaw; Louis P. Augostini; Robert Weslar; Mary A. Kaminsky; Mel Manasse & Son; Robert Voorhis; Judy Osborn; Matthew J. Hilerbrant; Erin V. Micha; and Susan Ryan (collectively “Defendants”). (Dkt. No. 1.) Despite ample notice, Plaintiff failed to (1) file affidavits reflecting successful service on Defendants, (2) appear at the Rule 16 conference scheduled on September 19, 2023, (3) appear at the rescheduled Rule 16 conference on January 23, 2024, (4) appear at a rescheduled Rule 16 conference on February 22, 2024, (5) appear at the rescheduled Rule 16 conference on March 25, 2024, or (6) respond to numerous court orders directing her to file a detailed status report. (Dkt. Nos. 10, 11, 12, 13, 14, 15, 16, 17, 18; Minute Entries dated 9/19/2023, 1/23/2024, 2/22/2024, 3/25/2024; see generally docket sheet.) For the reasons set

forth below, I recommend that Plaintiff’s Complaint (Dkt. No. 1) be dismissed. II. INTRODUCTION Plaintiff commenced this civil rights action pro se on June 6, 2023, asserting claims against Defendants by the filing of a Complaint that included a request for a temporary restraining order and preliminary injunction. (Dkt. No. 1.) Plaintiff paid the filing fee and on June 6, 2023, and the Court issued a General Order 25, which scheduled an initial conference for September 19, 2023. (Dkt. No. 2.) On June 7, 2023, United States District Judge Anne M. Nardacci denied without prejudice to refiling, Plaintiff’s request for a temporary restraining order and preliminary

injunction. (Dkt. No. 5.) Judge Nardacci noted that Plaintiff failed to comply with N.D.N.Y. L.R. 7.1. (Id.) On June 7, 2023, Plaintiff filed a letter that essentially alerted the Court about her request for a temporary restraining order and injunction. (Dkt. No. 6.) On June 8, 2023, Plaintiff filed a motion for a temporary restraining order without notice. (Dkt. Nos. 7, 8.) On June 9, 2023, Judge Nardacci denied without prejudice Plaintiff’s motion noting that it still did not comply with the local rules as set forth in the Court’s order date June 7, 2023, and failed to show a likelihood of success on the merits of her claim. (Dkt. No. 9.) On September 19, 2023, the undersigned held an initial conference pursuant to Rule 16. (Minute Entry dated 9/19/2023.) However, Plaintiff failed to appear for the Rule 16 conference and the undersigned noted that (1) no defendant has appeared in the matter, and (2) the docket does not reflect the filing of any affidavits of service or waivers of service. (Id.) On September 19, 2023, Plaintiff was directed to, among other things, file on or before October 20, 2023, (1) a

detailed status report that (a) explained her failure to appear at the Rule 16 conference, and (b) outlined the status of service on Defendants, and (2) affidavits of service of process as to each Defendant. (Dkt. No. 10.) Plaintiff was cautioned that failure to properly serve Defendants according to Fed. R. Civ. P. 4, “may result in dismissal of the action for failure to prosecute.” (Id.) The Court rescheduled the Rule 16 conference for January 23, 2024. (Id.) On October 23, 2023, the undersigned noted that Plaintiff failed to timely comply with the Court’s Text Order dated September 19, 2023. (Dkt. No. 11.) Plaintiff was directed to comply with the directives set forth in Dkt. No. 10 on or before November 20, 2023. (Id.) Plaintiff was again cautioned that failure to properly serve Defendants according to Fed. R. Civ.

P. 4, “may result in dismissal of the action for failure to prosecute.” (Id.) On November 27, 2023, the undersigned noted that Plaintiff failed to timely comply with the Court’s Text Order dated October 23, 2023. (Dkt. No. 12.) Plaintiff was directed to comply with the directives set forth in Dkt. No. 10 on or before December 11, 2023. (Id.) Plaintiff was again cautioned that failure to properly serve Defendants according to Fed. R. Civ. P. 4, “may result in dismissal of the action for failure to prosecute” and “failure to comply with Court orders may result in dismissal of the case.” (Id.) On December 18, 2023, the undersigned noted that Plaintiff (1) failed to comply with the Court’s Text Orders at Dkt. Nos. 10, 11, 12, (2) failed to appear for an in person conference scheduled on September 19, 2023, (3) failed to serve Defendants, and (4) failed to file affidavits of service on the docket. (Dkt. No. 13.) Plaintiff was “ADVISED AND CAUTIONED THAT FAILURE TO SERVE . . . DEFENDANTS [in accordance with] FED. R. CIV. P. 4, MAY RESULT IN DISMISSAL OF THE ACTION FOR FAILURE TO PROSECUTE. PLAINTIFF IS ALSO ADVISED AND CAUTIONED THAT FAILURE TO COMPLY

WITH COURT ORDERS MAY RESULT IN DISMISSAL OF THE CASE.” (Dkt. No. 13.) On January 23, 2024, an initial conference pursuant to Rule 16 was held and Plaintiff failed to appear. (Minute Entry dated 1/23/2024.) The undersigned noted that no affidavits of service or waiver of service have been filed by Plaintiff, the deadline for Plaintiff to file affidavits of service have expired, no Defendant has appeared in the case, and Plaintiff failed to comply with the Court’s Text Orders at Dkt. Nos. 10, 11, 12, 13. (Id.) On January 23, 2024, Plaintiff was directed to immediately comply with the Court’s prior Text Orders at Dkt. Nos. 10, 11, 12, and 13. (Dkt. No. 14.) Plaintiff was again “ADVISED AND CAUTIONED THAT FAILURE TO SERVE . . . DEFENDANTS [in accordance

with] FED. R. CIV. P. 4, MAY RESULT IN DISMISSAL OF THE ACTION FOR FAILURE TO PROSECUTE. PLAINTIFF IS ALSO ADVISED AND CAUTIONED THAT FAILURE TO COMPLY WITH COURT ORDERS MAY RESULT IN DISMISSAL OF THE CASE.” (Id.) The Rule 16 conference was rescheduled for February 22, 2024. (Id.) On February 22, 2024, an initial conference pursuant to Rule 16 was held and Plaintiff failed to appear. (Minute Entry dated 2/22/2024.) The undersigned noted that no affidavits of service or waiver of service have been filed by Plaintiff, the deadline for Plaintiff to file affidavits of service have expired, no Defendant has appeared in the case, and Plaintiff failed to comply with the Court’s Text Orders at Dkt. Nos. 10, 11, 12, 13 and 14. (Id.) On February 22, 2024, Plaintiff was directed to immediately comply with the Court’s prior Text Orders at Dkt. Nos. 10, 11, 12, 13, and 14. (Dkt. No. 15.) Plaintiff was again “ADVISED AND CAUTIONED THAT FAILURE TO SERVE . . . DEFENDANTS [in

accordance with] FED. R. CIV. P. 4, MAY RESULT IN DISMISSAL OF THE ACTION FOR FAILURE TO PROSECUTE. PLAINTIFF IS ALSO ADVISED AND CAUTIONED THAT FAILURE TO COMPLY WITH COURT ORDERS MAY RESULT IN DISMISSAL OF THE CASE.” (Id.) The Rule 16 conference was rescheduled for March 25, 2024. (Id.) On March 25, 2024, an initial conference pursuant to Rule 16 was held and Plaintiff failed to appear. (Minute Entry dated 3/25/2024.) The undersigned noted that no affidavits of service or waiver of service have been filed by Plaintiff, the deadline for Plaintiff to file affidavits of service have expired, no Defendant has appeared in the case, and Plaintiff failed to

comply with the Court’s Text Orders at Dkt. Nos. 10, 11, 12, 13, 14, and 15. (Id.) On March 25, 2024, Plaintiff was directed to comply with the Court’s prior Text Orders at Dkt. Nos. 10, 11, 12, 13, 14, and 15, on or before April 15, 2024. (Dkt. No. 16.) Plaintiff was again “ADVISED AND CAUTIONED THAT FAILURE TO SERVE . . . DEFENDANTS [in accordance with] FED. R. CIV. P. 4, MAY RESULT IN DISMISSAL OF THE ACTION FOR FAILURE TO PROSECUTE. PLAINTIFF IS ALSO ADVISED AND CAUTIONED THAT FAILURE TO COMPLY WITH COURT ORDERS MAY RESULT IN DISMISSAL OF THE CASE.” (Id.) On April 24, 2024, Plaintiff was directed to comply with the Court’s prior Text Orders at Dkt. Nos. 10, 11, 12, 13, 14, 15, and 16, on or before May 24, 2024. (Dkt. No. 17.) Plaintiff was again “ADVISED AND CAUTIONED THAT FAILURE TO SERVE . . . DEFENDANTS [in accordance with] FED. R. CIV. P. 4, MAY RESULT IN DISMISSAL OF THE ACTION FOR FAILURE TO PROSECUTE. PLAINTIFF IS ALSO ADVISED AND

CAUTIONED THAT FAILURE TO COMPLY WITH COURT ORDERS MAY RESULT IN DISMISSAL OF THE CASE.” (Id.) On May 31, 2024, Plaintiff was directed to comply with the Court’s prior Text Orders at Dkt. Nos. 10, 11, 12, 13, 14, 15, 16, and 17, on or before July 2, 2024. (Dkt. No. 18.) Plaintiff was again “ADVISED AND CAUTIONED THAT FAILURE TO SERVE . . . DEFENDANTS [in accordance with] FED. R. CIV. P. 4, MAY RESULT IN DISMISSAL OF THE ACTION FOR FAILURE TO PROSECUTE. PLAINTIFF IS ALSO ADVISED AND CAUTIONED THAT FAILURE TO COMPLY WITH COURT ORDERS MAY RESULT IN DISMISSAL OF THE CASE.” (Id.)

On August 1, 2024, the undersigned issued an order to show cause directing Plaintiff to show cause in writing on or before August 29, 2024, why the action should not be dismissed for failure to comply with Fed. R. Civ. P. 4(m). (Dkt. No. 19.) The order to show cause also stated that, should Plaintiff fail to respond, the Court may treat her noncompliance as a failure to serve and may dismiss the action pursuant to Fed. R. Civ. P. 4(m). (Id.) On September 3, 2024, the Court gave Plaintiff “a last opportunity to show cause in writing . . . why this matter should not be dismissed for failure to comply with Fed. R. Civ. P. 4(m).” (Dkt. No. 20.) On September 13, 2024, the Court’s order to show cause dated September 3, 2024, was returned as undeliverable. (Dkt. No. 21.) To date, Plaintiff has failed to comply with the Court’s Text Orders at Dkt. Nos. 10, 11, 12, 13, 14, 15, 16, 17, and 18. (See generally docket sheet.) In addition, Plaintiff failed to respond to the Court’s orders to show cause at Dkt. Nos. 19, 20. (See generally docket sheet.) III. DISCUSSION Federal Rule of Civil Procedure 4(m) requires that a plaintiff serve a defendant “within

90 days after the complaint is filed.” The Rule provides, however, that “if the plaintiff shows good cause for the failure [to timely serve a defendant], the court must extend the time for service for an appropriate period.” Fed. R. Civ. P 4(m). In the absence of good cause, the court may either “dismiss the action without prejudice” or, in its discretion, “order that service be made within a specified time.” Fed. R. Civ. P. 4(m). “In the Rule 4(m) context, a district court abuses its discretion when . . . it dismisses a complaint sua sponte for lack of service without first giving notice to the plaintiff and providing an opportunity for her to show good cause for the failure to effect timely service.” Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir. 2012); see Dicks v. Chow, 382 F. App'x 28, 30 (2d Cir. 2010) (summary order) (affirming sua sponte dismissal for

failure to serve where “the claim was dismissed over a year after the filing of the amended complaint, the court provided notice that the unserved defendants would be dismissed, and [the plaintiff] has never asserted any good cause for his failure to effect service”). The Court’s Orders to Show Cause of August 1, 2024, and September 3, 2024, provided the notice required under Fed. R. Civ. P. 4(m) and the law of this Circuit. Mazzei v. Jackson, 22- CV-0146, 2022 WL 16700526, at *1 (S.D.N.Y. Nov. 3, 2022) (citing Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002) (“notice to the plaintiff must be given prior to a sua sponte dismissal”)). Despite several opportunities to serve Defendants, Plaintiff has failed to file a proof of service indicating that any of the numerous Defendants have been served. (See generally docket sheet.) As a result, I recommend that this action be dismissed. See, e.g., Dicks, 382 F. App'x at 30 (affirming sua sponte dismissal of pro se complaint under Rule 4(m) after notice); Alsaidi v. City of New York, 12-CV-5771, 2013 WL 4052880, at *3 (E.D.N.Y. Aug. 12, 2013) (dismissing complaint where “[p]laintiff failed to serve the Individual Officers even after he was granted an extension, sua sponte, by the presiding Magistrate Judge”); Rios v. RedBubble,

Inc., 18-CV-2260, 2018 WL 4538907 (S.D.N.Y. Sept. 21, 2018) (adopting magistrate judge's recommendation to dismiss pursuant to Rule 4(m) where plaintiff failed to effect timely service even after he was granted an extension); Fiore v. Pinto, 09-CV-2454, 2010 WL 4642474, at *1 (S.D.N.Y. Nov. 16, 2010) (adopting magistrate judge's recommendation to dismiss pursuant to Rule 4(m) where plaintiff failed to effect timely service or respond to court's order to show cause). In the alternative, I recommend that this action be dismissed for failure to prosecute and comply with Court orders pursuant to Fed. R. Civ. P. 41. Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss an action “if

the plaintiff fails to prosecute or to comply with the rules or a court order.” Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014). It is settled that Rule 41(b) “gives the district court authority to dismiss a plaintiff's case sua sponte for failure to prosecute.” LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001). A court considering whether to dismiss an action for failure to prosecute must weigh the following factors: (1) the duration of the plaintiff's failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are 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. No single factor is generally dispositive. Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (internal quotation marks and citation omitted). The factors here favor dismissal of this case. First, Plaintiff has failed to take any action to prosecute this case for over one year when Judge Nardacci denied her second motion for a temporary restraining order and preliminary injunction. (Dkt. Nos. 7, 8.) Plaintiff has continued to take no action despite numerous

advisements from the undersigned that she must respond to Court orders or risk dismissal, with the first such warning being issued on September 19, 2023. (Dkt. No. 10.) Second, the Court’s orders dated September 19, 2023, October 23, 2023, November 27, 2023, December 18, 2023, January 23, 2024, February 22, 2024, March 25, 2024, April 24, 2024, and May 31, 2024, put Plaintiff on notice that her failure to act may result in the dismissal of the action. (Dkt. Nos. 10, 11, 12, 13, 14, 15, 16, 17, 18.) Third, “while the prejudice to defendant and the burden on the [c]ourt are currently minimal, [P]laintiff's delay ‘lean[s] in the direction of dismissal’ even if ‘only slightly.’” Rozell v. Berryhill, 18-CV-0969, 2019 WL 1320514, at *2 (S.D.N.Y. Mar. 25, 2019) (quoting LeSane v.

Hall's Sec. Analyst, Inc., 239 F.3d 206, 210 (2d Cir. 2001)). The Court has an interest in having this case either proceed or close if Plaintiff does not intend to see it through. Fourth, the Court must also consider the heavy demands of its docket. “Since [P]laintiff has shown no interest in moving this case forward, the [c]ourt's need to reduce docket congestion outweighs the [P]laintiff's right to be heard in this case.” Phair v. Suffolk Cty. Corr. Facility, 19- CV-3302, 2020 WL 3489495, at *2 (E.D.N.Y. June 26, 2020); see also Antonios A. Alevizopoulos & Assocs., Inc. v. Comcast Int'l Holdings, Inc., 99-CV-9311, 2000 WL 1677984, at *3 (S.D.N.Y. Nov. 8, 2000) (“The efficient administration of judicial affairs—a consideration vital to the [c]ourt’s ability to provide meaningful access to other litigants—depends on the [c]ourt’s overseeing its docket and guaranteeing that its cases progress with appropriate speed.”). Finally, no lesser sanction will be effective in moving this action forward. Plaintiff has ignored her obligation to prosecute this case, and ignored nine Court orders directing her to file a status report and complete service of process. (Dkt. Nos. 10, 11, 12, 13, 14, 15, 16, 17, 18.) If

the case is not dismissed, it will likely remain open and stalled for the foreseeable future. As a result, I recommend that this action be dismissed pursuant to Fed. R. Civ. P. 4(m) for failure to timely serve Defendants. In the alternative, I recommend that this action be dismissed pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute or comply with this Court’s orders. ACCORDINGLY, it is respectfully RECOMMENDED that Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED without prejudice; and it is further ORDERED that the Clerk of the Court shall file a copy of this report and

recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.1

1 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.* Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: September 27, 2024 Binghamton, New York } Miroslav Lovric U.S. Magistrate Judge

2 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

2022 WL 16700526 court must extend the time for service for an appropriate Only the Westlaw citation is currently available. period.” In the absence of good cause, the court may either United States District Court, S.D. New York. “dismiss the action without prejudice” or, in its discretion, “order that service be made within a specified time.” Raymond MAZZEI, Plaintiff, Fed.R.Civ.P. 4(m). v. Barbara JACKSON, Defendant. Discussion 22-CV-00146 (PMH) | The Court's June 6, 2022 Order to Show Cause provided the Signed November 3, 2022 notice required under Rule 4(m) and the law of this Circuit. See, e.g., Thompson v. Maldonado, 309 F.3d 107, 110 (2d Attorneys and Law Firms Cir. 2002) (“notice to the plaintiff must be given prior to Robert L. Reda, Law Office of Robert L. Reda, P.C., Suffern, a sua sponte dismissal”). Despite the Court extending the NY, for Plaintiff. time for Plaintiff to effect service on Defendant by nearly three additional months, Plaintiff has failed to file a proof of service indicating that Defendant has been served. Dismissal is therefore appropriate. See, e.g., Dicks v. Chow, 382 F. ORDER App'x 28, 30 (2d Cir. 2010) (affirming sua sponte dismissal PHILIP M. HALPERN, United States District Judge: of pro se complaint under Rule 4(m) after notice); Alsaidi v. City of New York, 2013 WL 4052880, at *3 (E.D.N.Y. Aug. 12, 2013) (dismissing complaint where “[p]laintiff Background failed to serve the Individual Officers even after he was granted an extension, sua sponte, by the presiding Magistrate *1 Raymond Mazzei (“Plaintiff”) initiated this diversity Judge”); Rios v. RedBubble, Inc., No. 18-CV-2260, 2018 action by filing a Complaint on January 6, 2022. (Doc. WL 4538907 (S.D.N.Y. Sept. 21, 2018) (adopting magistrate 1). Plaintiff sought a Summons as to Barbara Jackson judge's recommendation to dismiss pursuant to Rule 4(m) (“Defendant”) on January 24, 2022, and that Summons was where plaintiff failed to effect timely service even after he issued on January 25, 2022. (Doc. 6; Doc. 7). On June 6, 2022, was granted an extension); Fiore v. Pinto, 2010 WL 4642474, over four months after the Summons was issued, the Court at *1 (S.D.N.Y. Nov. 16, 2010) (adopting magistrate judge's issued an Order to Show Cause directing the Plaintiff to either recommendation to dismiss pursuant to Rule 4(m) where (i) file to the docket proof of service, or (ii) show good cause plaintiff failed to effect timely service or respond to court's in writing for his failure to comply with Fed. R. Civ. P. 4(m). order to show cause). (Doc. 8). On June 28, 2022, Plaintiff filed a letter in response to the Court's Order to Show Cause, requesting additional time to locate Defendant and effectuate service. (Doc. 9). On June 29, 2022, the Court extended the time to serve Defendant Conclusion to September 27, 2022 and held that “[n]o further extensions will be granted.” (Doc. 10). Plaintiff has not filed a proof of For the foregoing reasons, this action will be dismissed service indicating that Defendant has been served. without prejudice for Plaintiff's failure to effect timely service. The Clerk of Court is respectfully directed to close this case. Legal Standard *2 SO ORDERED. Federal Rule of Civil Procedure 4(m) requires that a plaintiff serve a defendant “within 120 days after the complaint is All Citations filed.” The Rule provides, however, that “if the plaintiff shows Not Reported in Fed. Supp., 2022 WL 16700526 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2013 WL 4052880 Background Only the Westlaw citation is currently available. United States District Court, I. Relevant Facts E.D. New York. The Court recites only those facts relevant to this Order. The arrest underlying this action took place on April 23, Mohamed ALSAIDI, Plaintiff, 2010. Plaintiff commenced this litigation on November 21, v. 2012 based on § 1983 and state law claims. In addition to CITY OF NEW YORK et al., Defendants. the City and the N.Y. PD, Plaintiff named Sgt. Muea, P.O. Brooks, P.O. Cooper, and several John and Jane Doe NYPD No. 12–CV–5771 (PKC). Officers as defendants. Plaintiff failed to serve any of the | Individual Officers—named or not—within the one hundred Aug. 12, 2013. twenty (120) day period allotted by Fed.R.Civ.P. 4(m), which expired on March 21, 2013. By Order dated May 8, 2013, the Attorneys and Law Firms Honorable Vera M. Scanlon notified Plaintiff that the 120– Robert H. Parker, Law Office of Robert H. Parker, Brooklyn, day period of service had elapsed, but sua sponte extended the NY, for Plaintiff. time for him to effectuate service of the Individual Officers to May 29, 2013. (Dkt. No. 9.) In the same order, Judge Scanlon Richard Weingarten, New York City Law Department, New reminded Plaintiff that “this court may sua sponte dismiss an York, NY, for Defendants. action” for failure to effectuate timely service. (Id.) Plaintiff did not serve or attempt to serve any of the Individual Officers thereafter. MEMORANDUM & ORDER On July 12, 2013, Defendants submitted to the Court a request PAMELA K. CHEN, District Judge. to file a motion to dismiss, with opposing counsel copied via ECF. (Dkt .No11.) In addition to outlining the bases *1 Plaintiff Mohamed Alsaidi brings this action pursuant for their motion, Defendants asked the Court to sua sponte to 42 U.S.C. § 1983 against Defendants the City of dismiss Plaintiff's claims against the Individual Officers both New York (“City”), the New York City Police Department for failure to serve and as time-barred. (Id. at footnote 3.) (“NYPD”), certain named N.Y. PD Officers, and other Defendants argued, inter alia, that: (1) the state law causes unidentified NYPD Officers listed as “JOHN DOES” and of action against the Individual Officers should be dismissed “JANE DOES” (together with the named NYPD Officers, because a notice of claim was not filed within ninety days and “Individual Officers”). This action arises out of Plaintiff's the action was not commenced within one year and ninety alleged false arrest on April 23, 2010 by NYPD Officers. days, as required by N.Y. Gen. Mun. L. §§ 50–e(1)(a), 50– Plaintiff asserts: (1) state law claims against the Individual i(1)(c); (2) Plaintiff's claims against the unnamed Individual Officers; (2) § 1983 claims against the Individual Officers Officers are time-barred, as Plaintiff failed to name and serve based on federal constitutional violations; and (3) a Monell such Individual Officers prior to the lapse of the applicable claim against the City.1 three year statute of limitations on April 24, 2013; and (3) Plaintiff's claim with respect to all Individual Officers should This Court held a pre-motion conference on August 6, be dismissed because the period of service of the complaint 2013 (the “Conference”) regarding Defendants' impending required by Fed R. Civ. P. 4(m), 120 days, as well as the motion to dismiss. (Dkt. No. 11.) For the reasons set forth extension period granted by Judge Scanlon, had run. (Id.) at the Conference, in conjunction with those set forth herein, Plaintiff's claims against the Individual Officers are hereby *2 In his response letter dated July 15, 2013, Plaintiff's dismissed without prejudice for failure to serve pursuant to counsel offered two explanations for the failure to serve Fed.R.Civ.P. 4(m).2 The Court reserves judgment regarding the Individual Officers by the extended deadline. First, he dismissal as to any other claims. claimed that he had communicated with defense counsel “last week on several occasions seeking the FULL names of the unnamed defendant police officers, [and that] Corporation already know who the police officers' [sic] are because I correct names, badge numbers and addresses of the named named them in the complaint.” (Dkt. No. 13.) Second, he Individual Officers. (Dkt. No. 14, n. 2.) Plaintiff still did not explained that he is a sole practitioner and was on trial when serve those officers. Judge Scanlon issued Plaintiff an extension and, “[s]omehow, this court's order to serve the unnamed defendant's was lost *3 On August 6, 2013, the Court held a pre-motion and the deadlines did not make it onto my calendar.” (Id.) conference regarding Defendants' prospective motion to Seeking to justify another extension of the service deadline, dismiss for, inter alia, failure to serve the Individual Officers. Plaintiff's counsel stated that “[a] harsh result would occur if The Court repeatedly probed Plaintiff's counsel for any “good the plaintiff were not allowed to file an extension to serve the cause”-or even any reasonable excuse-as to why he missed unnamed defendants [ ]” because “the statute of limitations both the original and extension periods of service. Plaintiff's expired on April 10, 2013.”3 (Id.). counsel could provide no reason for his failure to serve other than that he was busy and frequently on trial since the Significantly, Assistant Corporation Counsel Richard filing of the complaint in November 2012. The Court ruled Weingarten (“ACC Weingarten”) refuted Plaintiff's counsel's that Plaintiff's claims against the Individual Officers were claim that ACC Weingarten had refused to provide him with dismissed based on the failure to serve them, but reserved the names of the John and Jane Doe Officers. In a letter judgment on whether the dismissal would be with prejudice. dated July 17, 2013, ACC Weingarten represented that, to his knowledge, he had “never spoken with Mr. Parker over the phone, and certainly [had] not done so in the last several Discussion weeks” and that “the entirety of counsels' communication since the inception of the lawsuit have occurred via email Plaintiff asserts two counts against the Individual Officers, and are thus, readily discernible.” (Dkt. No. 14 at 1.) one based on state law and the other based on § 1983. Attached to ACC Weingarten's letter was a copy of the only However, because Plaintiff has failed to serve any of the email communication between Plaintiff's Counsel and ACC Individual Officers in the eight and one-half months since the Weingarten, which consisted of two emails, one sent by filing of this action, and because he has already been given Plaintiff's counsel on July 3, 2013 and a responsive email a sua sponte extension and provides no good cause for his sent by ACC Weingarten the next day. In his July 3rd email, neglect, the Court, in its discretion, dismisses all of his claims Plaintiff's counsel stated, inter alia, that he was “interested against the Individual Officers.5 in whether you discovered the names of the unknown police officers or detectives involved in plaintiff's arrest.” ACC Weingarten responded the next day with: II. Federal Rule of Civil Procedure 4(m) Federal Rule of Civil Procedure 4(m) requires that a plaintiff What unknown police officers are you referring to? serve all defendants to an action within 120 days after filing the complaint. Fed.R.Civ.P. 4(m). If a plaintiff shows good While there are John/Jane Doe officers named in the cause for that failure, the Court must extend the time for caption of the complaint, no John/Dane [sic] Doe officers service. Id. Where no good cause is shown, on motion or on are mentioned in the body of the complaint. Moreover, you its own after notice to the plaintiff is given, the Court has refer to several officers in the body of the complaint by discretion to dismiss the complaint without prejudice. Id.; name. Zapata v. City of New York, 502 F.3d 192, 196–97 (2d Ci Plaintiff's counsel failed to respond to ACC Weingarten's July r.2007) (holding that district courts have discretion to grant 4th email or otherwise follow up with Corporation Counsel to extensions of time to serve process even in the absence of identify the John and Jane Doe Officers. good cause). The Second Circuit has held that “before [it] will even consider vacating a Rule 4(m) dismissal ... the As the record shows, Plaintiff's counsel did not inquire with plaintiff must ordinarily advance some colorable excuse for Defendants' counsel as to the names of the Individual Officers neglect.” Zapata, 502 F.3d at 198; see also Bogle–Assegai until July 3, 2013 (Dkt. No 14), long after the service period v. Connecticut, 470 F.3d 498, 509 (2d Cir.2006). Absent and extension had run.4 Despite the lack of follow-up by good cause, the district court ought to weigh the impact that dismissal or extension would have on the parties. Zapata, 502 the record that the district court weighed the impact that a Plaintiff. While this dismissal is without prejudice to the dismissal would have on the parties.”). filing of a new complaint under Rule 4(m), Plaintiff's § 1983 claims, which in New York are subject to a three- year statute of limitations, Pearl v. City of Long Beach, III. Absence of Good Cause 296 F.3d 76, 70 (2d Cir.2002), would now be time-barred In this case, it is undisputed that Plaintiff has failed to serve against the Individual Officers. Effectively, Plaintiff's § 1983 the Individual Officers and has therefore failed to comply claims against the Individual Officers will be extinguished. with Rule 4(m). See Fed.R.Civ.P. 4(m). In fact, Plaintiff However, the impact of the dismissal on Plaintiff's federal failed to serve the Individual Officers even after he was claims is partially mitigated by the fact that these claims granted an extension, sua sponte, by the presiding Magistrate would be time-barred as to the unnamed individual officer Judge and explicitly warned that, were service not effectuated defendants even if Plaintiff were granted another extension by May 29, 2013, “this Court may sua sponte dismiss of time in which to serve them. Where a Plaintiff uses John/ an action without prejudice for failure to effectuate timely Jane Does as a placeholder for a defendant, he is generally service.” (Dkt. No. 9.) Receiving notice from Defendants that required to substitute the named party within the applicable they would move to dismiss based on lack of service likewise statute of limitations period. Barrow v. Wethersfield Police spurred no action from Plaintiff. And even after Defendants' Dep't, 66 F.3d 466, 468–70 (2d Cir.1995).8 Since the statute counsel provided the complete identifying information and of limitations on Plaintiff's federal claims expired, at the addresses for the named Individual Officers (Dkt. No. 14), latest, on April 24, 2013, Plaintiff's federal claims against Plaintiff made no attempt to serve them. the unnamed Individual Officers are time-barred because Plaintiff failed to substitute the names of the John and Jane *4 Plaintiff's counsel offers nothing resembling a colorable Doe Officers by that date. See Pearl, 296 F.3d at 70; see excuse for neglecting the original service deadline or the also Wallace v. Kato, 549 U.S. 384, 388–90, 127 S.Ct. 1091, Court's sua sponte extension.6 Clearly, the explanation 166 L.Ed.2d 973 (2007) (holding that “[l]imitations begin that “[s]omehow, this court's order to serve the unnamed to run against an action for false imprisonment when the defendant's was lost and the deadlines did not make it onto alleged false imprisonment ends.”). Thus, another extension my calendar” does not constitute a colorable excuse. (Dkt. of service deadline would not have saved the federal claims No. 13). Nor has Plaintiff's counsel demonstrated any fault by against the John and Jane Doe defendants since Plaintiff failed Corporation Counsel in facilitating service of the Individual to substitute their true names within the limitations period. Officers.7 Unfortunately for Plaintiff, counsel's inadvertence or neglect does not excuse failed service. Abreu v. City of New *5 The impact on Plaintiff of this dismissal is also mitigated York, 657 F.Supp.2d 357, 362 (E.D.N.Y.2009) (citing e.g., by the fact that his state law claims against all of the Individual Hollomon v. City of New York, No. 04–CV–2964, 2006 WL Defendants, named and unnamed, are procedurally barred. 2135800, at *3 (E.D.N.Y. July 31, 2006) (a “delay in service “[I]n a federal court, state notice-of-claim statutes apply to resulting from the mere inadvertence, neglect, or mistake of state law claims.” Hardy v. New York City Health Hosps. a litigant's attorney does not constitute good cause”) (quoting Corp., 164 F.3d 789, 793 (2d Cir.1999). Under New York's Managed Mkt. Neutral Fund v. Askin Capital Mgmt., L.P., 197 general municipal law, “a notice of claim is a mandatory F.R.D. 104, 108 (S.D.N.Y.2000)); Beauvoir v. United States precondition to bringing a tort claim against a municipality or Secret Serv., 234 F.R.D. 55, 56 (E.D.N.Y.2006)). Moreover, any of its ... employees.” Hyde v. Arresting Officer Caputo, any claim that Plaintiff would serve the Individual Officers 98 CV 6722(FB)(ASC), 2001 WL 521699, at * 4 (E.D.N.Y. if only he were given one more chance is belied by the May 11, 2001) (citing N.Y. Gen. Mun. L. §§ 50–e, 50–i(1) fact that Plaintiff's counsel received the names of certain (a)). Here, it appears that Plaintiff never filed a notice of claim Individual Officers from ACC Weingarten three weeks prior as required by N.Y. Gen. Mun. L. § 50–e. (Dkt. No. 11 at 3.) to the Conference, and Plaintiff's counsel still made no effort to serve those individuals before the Conference. In any event, even if Plaintiff had timely filed a notice of claim, his state law claims would still be time barred. Under New York law, a plaintiff pursuing a state law tort claim IV. Prejudice against a city must commence the action “within one year and ninety days after the happening of the event upon which the law claims accrued on April, 24, 2010, the date of his release Individual Officers. As the Second Circuit noted in Zapata from custody and the charge against him was dismissed. “in the absence of good cause, no weighing of the prejudices See Singleton v. City of New York, 632 F.2d 185, 191 (2d between the two parties can ignore that the situation is Cir.1980); Hyde, 2001 WL 521699 at * 4. Plaintiff filed this the result of plaintiff's neglect.” Zapata, 502 F.3d at 198 action on November, 21, 2012–two years and 212 days after (affirming district court's Rule 4(m) dismissal where, inter the alleged incident giving rise to this action-well past the one alia, plaintiff sought a tardy extension of time to serve the year and 90–day limitations period. defendant).9 Plaintiff's claims against the Individual Officers are accordingly dismissed without prejudice.10 Due to the procedural bars to Plaintiff's state law claims, even if he were granted an extension of time in which to serve the Individual Defendants, these claims would likely not survive. Conclusion Thus, the impact of the dismissal on Plaintiff is less than it would have been had he timely noticed or filed his state law *6 For the foregoing reasons, along with those stated at the claims. Conference, Plaintiff's claims against the Individual Officers —specifically the First and Second Causes of Action of the On the other hand, the Individual Officers would be Complaint—are dismissed without prejudice. prejudiced if this Court granted another extension prolonging Plaintiff's opportunity to serve them on a claim that accrued SO ORDERED: more than three and half years ago and about which they have received no notice. See Zapata, 502 F.3d at 198. Notwithstanding the Court's sympathy for a plaintiff who All Citations relies on counsel to meet applicable deadlines, principles of judicial efficiency and economy, and fairness to both parties, Not Reported in F.Supp.2d, 2013 WL 4052880 warrant dismissal, especially where Plaintiff was given an Footnotes 1 Plaintiff has also named the N.Y. PD as a defendant in this action. However, “the NYPD is a non-suable agency of the City.” Griffin v. City of New York, 880 F.Supp.2d 384, 393 (E.D.N.Y.2012) (quoting Jenkins v. City of New York, 478 F.3d 76, 93 n. 19 (2d Cir.2007)). 2 Although the Court dismisses these claims without prejudice, as discussed infra, the practical effect is a dismissal with prejudice because the statute of limitations has run on these claims. 3 Notably, the statute of limitations date referenced in Plaintiff's letter only applies to his federal law claims. Plaintiff's counsel appeared to be unaware that the limitations period for his client's state law claims is only one year and ninety days. N.Y. Gen. Mun. L. §§ 50–e(1)(a), 50–i(1)(c). Furthermore, as mentioned in defense counsel's July 12th letter and discussed infra, the statute of limitations ran on Plaintiff's federal law claims on April 24, and not April 10, 2013. 4 It should also be noted that Plaintiff did not provide Defendant with an executed 160.50 release—a prerequisite for disclosing the Individual Officers' identifying information—until April 15, 2013, well after the initial 120 day-period had closed. (Dkt. No. 14). 5 Plaintiff's Monell claim against the City will go forward. until after the service period and extension had run, more than seven months after the filing of the complaint; and even then the attempt was feeble at best. (See Dkt. No. 15). In fact, Plaintiff did not respond to Defendants' counsel's solicitations about which NYPD Officers, if any, Plaintiff sought to identify. (Id.) Indeed, Plaintiff's counsel's half-hearted effort in early July 2013 to identify the unnamed Individual Officers appears to have been spurred on by the initial conference scheduled for July 19, 2013 before Judge Scanlon, who had warned Plaintiff in her May 8th order that she might sua sponte dismiss his claims against the Individual Officers for lack of service. 7 Indeed, given the representations in the parties' July 15, 2013 and July 17, 2013 correspondence, the Court has concerns about what appears to be a disingenuous, if not dishonest, effort by Plaintiff's counsel to blame opposing counsel for a serious lapse in his own performance. 8 It is true that courts have rejected the dismissal of suits against unnamed defendants described by role where a plaintiff requires discovery to learn the identities of responsible officials. See e.g., Davis v. Kelly, 160 F.3d 917, 921 (2d Cir.1998). However, Plaintiff has offered nothing to show that that is the situation here. The complaint describes conduct by the named defendant officers, but does not describe any action taken by a John or Jane Doe officer. Furthermore, Corporation Counsel was willing to work with Plaintiff to identify any involved unnamed officers. 9 In Zapata v. City of New York, the Court upheld a dismissal based on a fact set similar to the one in question. As here, the plaintiff in Zapata “made no effort to effect service within the service period, neglected to ask for an extension within a reasonable period of time, and has advanced no cognizable excuse for the delay.” Zapata, 502 F.3d at 198. Only here, Plaintiff was once given a reprieve when the Court sua sponte extended the service period that Plaintiff subsequently missed. 10 Although Plaintiff could seek to re-file his claims against the Individual Officers, as discussed, these claims almost inevitably would be time-barred. Should Plaintiff choose this course of action, he would be required to establish sufficient grounds for equitable tolling of the statute of limitations, which, based on the current record, seems a near-impossibility. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2018 WL 4538907 A district court “may accept, reject, or modify, in whole Only the Westlaw citation is currently available. or in part, the findings or recommendations made by the United States District Court, S.D. New York. magistrate judge.” 28 U.S.C. § 636(b)(1). Parties may object to a magistrate judge’s recommended findings “[w]ithin 14 Liza RIOS, Plaintiff, days after being served with a copy of the recommended v. disposition.” Fed. R. Civ. P. 72(b)(2). That deadline is REDBUBBLE, INC., et al., Defendants. extended to 17 days when service is made by mail. See Fed. R. Civ. P. 6(d). “The district court may adopt those portions of 18-CV-2260 (RA) a report and recommendation to which no timely objections | have been made, provided no clear error is apparent from the Signed 09/21/2018 face of the record.” Hancock v. Rivera, No. 09-CV-7233 (CS) (GAY), 2012 WL 3089292, at *1 (S.D.N.Y. July 30, 2012) Attorneys and Law Firms (internal citation omitted). Liza Rios, New York, NY, pro se. Plaintiff’s deadline for objecting to the Report has passed, and Plaintiff has not objected to Judge Moses' thorough and well-reasoned Report. The Court thus reviews the Report for ORDER ADOPTING REPORT clear error and, finding none, adopts the Report in its entirety. AND RECOMMENDATION Accordingly, Plaintiff’s claims against the four defendants who have not appeared—RedBubble, Inc., Society 6, LLC, RONNIE ABRAMS, United States District Judge Cloudfare, Inc., and Amazon.com, LLC—are dismissed *1 Plaintiff Liza Rios brings this action pro se, fee paid, without prejudice. seeking damages against seven corporate defendants for allegedly infringing on her registered trademark. Only four The Clerk of Court is respectfully directed to mail a copy of of those defendants remain in the case—but there is no this Order to Plaintiff and to close the case. indication that any of them have been properly served with the summons and Complaint under Federal Rule of Civil SO ORDERED. Procedure 4. Before the Court is the August 28, 2018 Report and Recommendation of the Hon. Barbara Moses (the All Citations “Report”), which recommends dismissing Plaintiff’s claims against the four absent defendants without prejudice pursuant Not Reported in Fed. Supp., 2018 WL 4538907 to Federal Rule of Civil Procedure 4(m) and 12(b)(5). See R. & R. (Dkt. 28). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2010 WL 4642474 at its own, independent conclusions” regarding those portions Only the Westlaw citation is currently available. to which objections were made. Nelson v. Smith, 618 F.Supp. United States District Court, 1186, 1189–90 (S.D.N.Y.1985) (quoting Hernandez v. Estelle, S.D. New York. 711 F.2d 619, 620 (5th Cir.1983)), When no objections to a Report are made, the Court may adopt the Report if “there Suzanne FIORE, Plaintiff, is no clear error on the face of the record.” Adee Motor v. Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y.2005) Andrew PINTO et al., Defendants. (citation omitted). No. 09 Civ. 2465(GBD)(GAY). In his Report, Magistrate Judge Yanthis advised Petitioner | that failure to file timely objections to the Report would Nov. 16, 2010. constitute a waiver of those objections. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Plaintiff failed to file timely objections. MEMORANDUM DECISION AND ORDER Magistrate Judge Yanthis properly recommended that the case GEORGE B. DANIELS, District Judge. be dismissed under Rule 4(m). Rule 4(m) allows a Court, on its own motion after notice, to dismiss an action if the *1 On March 18, 2009, Plaintiff Suzanne Fiore initiated defendant has not been served within 120 days after the this action alleging that Defendants falsely arrested her complaint has been filed. Fed.R.Civ.P. 4(m). Magistrate Judge and retaliated against her because of her speech. Judge Yanthis provided such notice when he issued an Order to Stephen Robinson referred the case to Magistrate Judge Show Cause on June 17, 2010. See Thompson v. Maldonado, Yanthis for all purposes. After Plaintiff failed to serve 309 F.3d 107, 110 (2d Cir.2002). Because Plaintiff failed to Defendants within 120 days after filing the complaint and serve Defendants within 120 days of filing her Complaint, failed to respond to Magistrate Judge Yanthis' Order to Show failed to respond to Magistrate Judge Yanthis' Order to Show Cause, Magistrate Judge issued a Report & Recommendation Cause, and otherwise failed to appear in this action, this Court (“Report”) recommending that this Court dismiss the case dismisses Plaintiff's complaint without prejudice. pursuant to Fed.R.Civ.P. 4(m). The Court may accept, reject or modify, in whole or in part, the findings and recommendations set forth within the Report. Conclusion 28 U.S.C. § 636(b)(1). When there are objections to the The Court adopts the Report and Recommendation. Plaintiff's Report, the Court must make a de novo determination of complaint is dismissed without prejudice. those portions of the Report to which objections are made. Id.; see also Rivera v. Barnhart, 432 F.Supp.2d 271, 273 SO ORDERED. (S.D.N.Y.2006). The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(c). All Citations It is not required, however, that the Court conduct a de novo hearing on the matter. See United States v. Raddatz, 447 U.S. Not Reported in F.Supp.2d, 2010 WL 4642474 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2019 WL 1320514 government shutdown). However, plaintiff failed to file any Only the Westlaw citation is currently available. motion by February 19. Accordingly, on February 21, 2019, United States District Court, S.D. New York. the Court issued an order directing plaintiff to explain by February 28, 2019 why he had not yet filed his motion papers Richard ROZELL, Plaintiff, and to propose a briefing schedule for further submissions v. (Dkt. No. 28). On March 5, 2019, having received nothing Nancy A. BERRYHILL, Defendant. from plaintiff, the Court issued an order to show cause why this action should not be dismissed for failure to prosecute 18-CV-969 (AJN) (JLC) (Dkt. No. 29). The Court gave plaintiff until March 12, | 2019 to respond, and put plaintiff on notice that a failure to Signed March 25, 2019 respond would lead to a recommendation to Judge Nathan that she dismiss this case for failure to prosecute, as “no lesser Attorneys and Law Firms sanction would be effective in these circumstances” (Id.). To date, plaintiff has not filed any response. Warren Jeffrey Roth, Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, NY, for Plaintiff. “Although not explicitly authorized by Rule 41(b) [of the Amanda Frances Parsels, Office of the United States Federal Rules of Civil Procedure], a court may dismiss a Attorney, New York, NY, for Defendant. complaint for failure to prosecute sua sponte.” Zappin v. Doyle, No. 18-1420, 2019 WL 1210296, at *1 (2d Cir. Mar. 13, 2019). Courts weigh five factors when assessing whether to dismiss for failure to prosecute: REPORT & RECOMMENDATION JAMES L. COTT, United States Magistrate Judge (1) the duration of the plaintiff's *1 To the Honorable Alison J. Nathan, United States failure to comply with the court District Judge: order, (2) whether plaintiff was on On February 5, 2018, plaintiff, represented by counsel, filed notice that failure to comply would his complaint against Nancy Berryhill, acting Commissioner result in dismissal, (3) whether the of the Social Security Administration (Dkt. No. 5). On June defendants are likely to be prejudiced 11, 2018, the Court issued an order directing plaintiff to by further delay in the proceedings, (4) explain why service of the complaint had not been completed a balancing of the court's interest in (given that the deadline was May 4, 2018) and why this case managing its docket with the plaintiff's should not be dismissed for failure to prosecute (Dkt. No. interest in receiving a fair chance to be 13). On June 28, 2018, plaintiff filed his affidavit of service, heard, and (5) whether the judge has but failed to comply with Rule 4(i) of the Federal Rules of adequately considered a sanction less Civil Procedure as he did not serve the U.S. Attorney's Office drastic than dismissal. No single factor for the Southern District of New York (Dkt. Nos. 17, 19). is generally dispositive. On July 25, 2018, plaintiff filed another affidavit of service, curing this deficiency (Dkt. No. 23). On November 2, 2018, the Court issued an order directing the government to file the *2 Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014). administrative record (given that the deadline was October 25, 2018) (Dkt. No. 24). On November 9, 2018, the government These factors favor dismissal of plaintiff's complaint. Plaintiff filed the administrative record, triggering the date by which has taken no action to prosecute his case beyond filing his plaintiff's motion for judgment on the pleadings was due to initial complaint in February 2018. See e.g., Ortega v. Apfel, 5 be filed (Dkt. No. 26). F. App'x 96, 97 (2d Cir. 2001) (affirming dismissal for failure to prosecute when “[t]he record reveal[ed] that, beyond filing By the Court's calculation, plaintiff's motion should have been his complaint ..., [plaintiff] took no action to prosecute his filed by February 19, 2019 (60 days after the record was filed after the deadline to do so. Plaintiff then proceeded to do so *3 For these reasons, the Court recommends dismissing this incorrectly, causing even more delay. His last contact with case without prejudice for failure to prosecute. the Court was on July 25, 2018 when he filed his affidavit of service. The Court, of its own accord not on application by plaintiff, reminded the government of the deadline to file the PROCEDURE FOR FILING OBJECTIONS TO administrative record in November 2018. Plaintiff's current THIS REPORT AND RECOMMENDATION motion is now more than a month late, and the Court has issued two orders in the intervening time directing him to Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the provide a reason for the delay to no avail. The most recent Federal Rules of Civil Procedure, the parties shall have order specifically warned plaintiff that failure to respond fourteen (14) days from service of this Report to file written would result in a recommendation of dismissal for failure objections. See also Fed. R. Civ. P. 6. Such objections, and to prosecute. Furthermore, while the prejudice to defendant any responses to such objections, shall be filed with the Clerk and the burden on the Court are currently minimal, plaintiff's of Court, with courtesy copies delivered to the chambers of delay “lean[s] in the direction of dismissal” even if “only the Honorable Alison J. Nathan and to the chambers of the slightly.” LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, undersigned, United States Courthouse, 500 Pearl Street, New 210 (2d Cir. 2001). York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Nathan. Finally, dismissal is warranted because no lesser sanction would be effective to move this case forward given plaintiff's FAILURE TO FILE OBJECTIONS WITHIN inaction. See, e.g., Edwards v. Janssen Pharm. Inc., No. 17- FOURTEEN (14) DAYS WILL RESULT IN A CV-918 (NSR) (LMS), 2018 WL 4658807, at *2 (S.D.N.Y. WAIVER OF OBJECTIONS AND WILL PRECLUDE May 9, 2018) (“no lesser sanction but dismissal” when APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. counseled plaintiff failed to comply with court's schedule), P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & adopted by, 2018 WL 2461275 (S.D.N.Y. May 31, 2018).1 Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). However, dismissal without prejudice “is appropriate in order to strike the appropriate balance between the right to due process and the need to clear the docket and avoid prejudice All Citations to defendant by retaining open lawsuits with no activity.” Amoroso v. Cty. of Suffolk, No. 08-CV-0826 (JFB), 2010 WL Not Reported in Fed. Supp., 2019 WL 1320514 2985864, at *3 (E.D.N.Y. July 21, 2010) (dismissing without prejudice as a lesser sanction).2 Footnotes 1 While courts remain “especially hesitant to dismiss for procedural deficiencies where ... the failure is by a pro se litigant,” plaintiff in this case is represented by counsel. Ambrose v. Mestre, No. 12-CV-4349 (PAE) (JLC), 2014 WL 2708021, at *2 (S.D.N.Y. June 16, 2014), adopted by, 2014 WL 5089438 (S.D.N.Y. Sept. 24, 2014). As such, the total lack of communication and disregard for court orders and procedural requirements is especially stark. 2 The Social Security Act, 42 U.S.C. § 405(g), provides a 60-day statutory deadline that Social Security applicants must meet to timely file a civil action in a district court. According to his complaint, plaintiff received notice of his denial of benefits on December 12, 2017. Dkt. No. 5 ¶ 10. Thus, if plaintiff were to refile his complaint after dismissal without prejudice, he would be beyond the statute of limitations period. However, “[t]hough the 60-day filing requirement is strictly construed, the statute containing the limitations period is of Soc. Sec., No. 16-CV-270 (RRM), 2019 WL 1099951, at *3 (E.D.N.Y. Feb. 28, 2019) (quoting Bowen v. City of New York, 476 U.S. 467, 480 (1986) ). As such, courts in this District have dismissed Social Security cases without prejudice for failure to prosecute even if the statute of limitations period had already passed or would have passed if re-filed. In Avila v. Comm'r of Soc. Sec., for example, the court found plaintiff in a Social Security case had: (1) untimely filed her complaint, (2) made no showing of entitlement to equitable tolling, and (3) failed to diligently prosecute her case, but still dismissed the case without prejudice as a lesser sanction. No. 15-CV-2456 (JGK), 2016 WL 1562944, at *2–3 (S.D.N.Y. Apr. 18, 2016); see also Aldarondo v. Comm'r of Soc. Sec., No. 12-CV-08529 (CM) (DF), 2014 WL 2111701, at *3 (S.D.N.Y. May 20, 2014) (dismissing Social Security case without prejudice to allow “for the possibility that Plaintiff had good cause for failing to prosecute his case at this time.”). Accordingly, though courts often dismiss with prejudice cases in which the statute of limitations would make attempts to re-file futile (see, e.g., Rudder v. Jimenez, No. 11-CV-3453 (VSB) (JLC), 2014 WL 1349047, at *6 (S.D.N.Y. Apr. 7, 2014), adopted by, 2014 WL 2855012 (S.D.N.Y. June 23, 2014) ), the Court is mindful that plaintiff may be able to provide adequate reasons for equitable tolling should he choose to re-file his complaint. For example, plaintiff in this case is represented by counsel who has either deliberately ignored court orders or has otherwise inadvertently allowed this case to lapse. See Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005) (district court erred in not granting evidentiary hearing on equitable tolling as plaintiff “had every reason to believe that [his counsel] was sensitive to the timing issue and would timely file the complaint,” and counsel did not do so). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2020 WL 3489495 complaint for failure to comply with a court order, treating Only the Westlaw citation is currently available. the noncompliance as a failure to prosecute.” Simmons v. United States District Court, E.D. New York. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995). “Although not explicitly authorized by Rule 41(b) [of the Federal Rules of William Brian PHAIR, Plaintiff, Civil Procedure], a court may dismiss a complaint for failure v. to prosecute sua sponte.” Zappin v. Doyle, 756 F.App'x 110, SUFFOLK COUNTY CORRECTIONAL 111-12 (2d Cir. 2019) (summary order). FACILITY, Defendant. When considering “dismissal for failure to prosecute [or] 19-CV-3302 (GRB) (LB) dismissal pursuant to [Rule] 41(b) for failure to comply | with an order of the court,” a district court principally Signed 06/26/2020 examines these factors: 1) the duration of plaintiff's failures or non-compliance; 2) whether plaintiff had notice that such Attorneys and Law Firms conduct would result in dismissal; 3) whether prejudice to the defendant is likely to result; 4) whether the court balanced William Brian Phair, Riverhead, NY, pro se. its interest in managing its docket against plaintiff's interest in receiving an opportunity to be heard; and 5) whether the court adequately considered the efficacy of a sanction ORDER less draconian than dismissal. Baffa v. Donaldson, Lufkin & Jenrette Secs. Corp., 222 F.3d 52, 62-63 (2d Cir. 2000); see GARY R. BROWN, United States District Judge: also Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). No one *1 On June 3, 2019, then-incarcerated pro se plaintiff factor is dispositive. Nita v. Conn. Dep't of Envtl. Prot., 16 William Brian Phair (“plaintiff”) filed a complaint in this F.3d 482, 485 (2d Cir. 1994). Court together with an application to proceed in forma pauperis. However, plaintiff did not file the required Prisoner In addition, all litigants, even those acting pro se, have a Litigation Authorization form (“PLRA”). Accordingly, by “duty to diligently pursue [their] case and to inform th[e] Notice of Deficiency also dated June 3, 2019 (the “Notice”), Court[ ] ... of any change of address.” Thornton v. Moroney, plaintiff was instructed to complete and return the enclosed 13-CV-8912, 2014 WL 2805236, at *2 (S.D.N.Y. June 20, PLRA within fourteen (14) days in order for this case to 2014). Indeed, “[t]he duty to inform the Court and defendants proceed. (See Docket Entry 3.) On June 13, 2019, mail sent of any change of address is ‘an obligation that rests with to plaintiff at his address of record, including the Notice, was all pro se plaintiffs.’ ” Alomar v. Recard, 07-CV-5654, 2010 returned to the Court marked “undeliverable” and “discharged WL 451047, at *2 (S.D.N.Y. Feb. 9, 2010) (quoting Handlin return to sender.” (See Docket Entries 6-8.) On June 16, 2020, v. Garvey, 91-CV-6777, 1996 WL 673823, at *5 (S.D.N.Y. this case was reassigned to the undersigned and a copy of the Nov. 20, 1996)); see also English v. Azcazubi, 13-CV-5074, docket reflecting this reassignment was mailed to plaintiff at 2015 WL 1298654, at *2 (E.D.N.Y. Mar. 20, 2015) (“[W]hen his address of record. On June 22, 2020, it too was returned a party, even a pro se litigant, changes addresses, it is that to the Court. (Docket Entry 9.) To date, plaintiff has not filed party's obligation to notify the Court of the new address.”). the PLRA nor has he communicated with the Court in over a As is readily apparent, a case cannot proceed unless the Court year since his June 3, 2019 filing. Additionally, plaintiff has and defense counsel are able to contact the plaintiff. Pagan not updated his address with the Court. v. Westchester Cnty., 12-CV-7669, 2014 WL 4953583, at *5 (S.D.N.Y. Oct. 1, 2014) (“Absent valid contact information, The federal courts are charged with taking measures “to the Court cannot apprise the plaintiffs of their obligations in prevent undue delays in the disposition of pending cases and or the status of their case, and the litigation cannot proceed to avoid congestion in the calendars of the District Courts.” without their participation.”). If a pro se litigant fails to keep Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962). “If the the Court apprised of his or her current mailing address, “the plaintiff fails to prosecute or to comply with the[ ] [Federal] Court may dismiss the action under Rule 41(b) [of the Federal [R]ules [of Civil Procedure] or a court order,” the district Rules of Civil Procedure], for failure to prosecute.” Mercedes v. New York D.O.C., 12-CV-2293, 2013 WL 6153208, at *2 *2. Finally, lesser sanctions are not appropriate under the circumstances. Although “[a] district judge should employ [Rule 41(b) dismissal] only when he is sure of the impotence *2 Here, plaintiff has failed to file the PLRA and has not kept his address current with the Court. Since plaintiff's of lesser sanctions,” Chira v. Lockheed Aircraft Corp., 634 June 3, 2019 filing of the complaint, he has not contacted F.2d 664, 665 (2d Cir. 1980), plaintiff has left the Court the Court and all mailings from the Court to plaintiff at little choice other than to dismiss his complaint pursuant his address of record have been returned. Given that over to Federal Rule of Civil Procedure 41(b). However, given one year has elapsed since plaintiff last communicated with plaintiff's pro se status, together with the fact that the Court's the Court, the first factor weighs in favor of dismissal. The communications have been returned, the Court finds that second factor also favors dismissal because, although the dismissal without prejudice is appropriate here. Accordingly, Court has attempted to place plaintiff on notice, its means of the complaint is dismissed without prejudice pursuant to doing so is limited because plaintiff has not kept his address Federal Rule of Civil Procedure 41(b). The Clerk of the Court current although the Court's notices have been posted on is directed to enter judgment and mark this case closed. the Court's Electronic Case Filing System. The third factor also weighs in favor of dismissal because when a plaintiff The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that has unreasonably delayed, prejudice to the defendants may any appeal from this Order would not be taken in good be presumed. See Lyell Theatre Corp. v. Loews Corp., 682 faith and therefore in forma pauperis status is denied for the F.2d 37, 43 (2d Cir. 1982). Since plaintiff has shown no purpose of any appeal. See Coppedge v. United States, 369 interest in moving this case forward, the Court's need to U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). reduce docket congestion outweighs the plaintiff's right to The Clerk of the Court shall post this Order on the Court's be heard in this case. See, e.g., Caussade v. United States, Electronic Case Filing System. Although it may be futile, the 293 F.R.D. 625, 631 (S.D.N.Y. 2013). Indeed, the “efficient Clerk of the Court is also directed to mail a copy of this Order administration of judicial affairs -- a consideration vital to to the pro se plaintiff at his last known address. the Court's ability to provide meaningful access to other litigants -- depends on the Court's overseeing its docket and SO ORDERED. guaranteeing that its cases progress with appropriate speed.” Antonios A. Alevizopoulos & Associates, Inc. v. Comcast All Citations Int'l Holdings, Inc., 99-CV-9311, 2000 WL 1677984, at *3 (S.D.N.Y. Nov. 8, 2000). Thus, this factor, too, weighs in Not Reported in Fed. Supp., 2020 WL 3489495 favor of dismissal under Rule 41(b) of the Federal Rules of Civil Procedure. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2000 WL 1677984 facts relevant to this motion will be reviewed. Only the Westlaw citation is currently available. United States District Court, S.D. New York. This action was removed from New York State Supreme Court on August 30, 1999. In a Scheduling Order dated March ANTONIOS A. ALEVIZOPOULOS 22, 2000, the Court ordered that depositions be concluded by AND ASSOCIATES, INC. and Peter July 7, 2000, and that discovery be completed by October 2, Amoruso and Associates, Inc., Plaintiffs, 2000. See 9/27/00 Affidavit of Gregory G. Ballard, counsel v. for Comcast, in Support of Dismissal (“Ballard Aff.”) ¶ 2; 3/22/00 Scheduling Order, Ex. A to Ballard Aff., at 1-2. COMCAST INTERNATIONAL HOLDINGS, On June 6, 2000, Comcast noticed the deposition of Peter INC., Comcast Corporation, Guilherme DeSouza Amoruso for June 21, 2000. See Ballard Aff. ¶ 3. Plaintiffs Villares and Elaine Marie Cortez Gonin, Defendants. neither objected to this date nor moved for a protective order. No. 99 Civ. 9311 SAS. See id. ¶ 4. Mr. Amoruso never appeared for the deposition. | See id. ¶ 5. Nov. 8, 2000. During a status conference held on September 12, 2000, Attorneys and Law Firms Comcast raised two significant concerns: (1) whether Amoruso exists as a separate entity; and (2) assuming it Allan A. Joseph, Hall, David and Joseph, P.A., Miami, does not, whether Mr. Amoruso could pursue the action in Florida, for Plaintiffs. his individual capacity as this Court might lack jurisdiction over such a claim. See 9/12/00 Transcript, Ex. B to Ballard James L. Kerr, Gregory G. Ballard, D. Scott Wise, Davis Polk Aff., at 5-7. To resolve these concerns, the Court ordered Mr. & Wardwell, New York, New York, for Defendants Comcast Amoruso to submit an affidavit regarding his residency and International Holdings, Inc. and Comcast Corporation. citizenship by September 18, 2000. See 9/14/00 Scheduling Order, Ex. C to Ballard Aff., ¶ 1. Mr. Amoruso never submitted the requested affidavit. See Ballard Aff. ¶ 8. OPINION AND ORDER During the September 12, 2000 status conference, the SCHEINDLIN, J. Court was informed that neither Mr. Alevizopoulos nor Mr. *1 Antonios A. Alevizopoulos and Associates, Inc. Amoruso were deposed by the July 7, 2000 deadline. The (“Alevizopoulos”) and Peter Amoruso and Associates, Inc. Court extended the deadline to September 29, 2000, but (“Amoruso”) have sued Comcast International Holdings, Inc. warned plaintiffs that a motion to dismiss for failure to and Comcast Corporation (collectively “Comcast”) alleging prosecute would be entertained if Mr. Amoruso failed to tortious interference with contract and conspiracy to breach comply with the Court's deposition deadline. See 9/12/00 fiduciary duty. Alevizopoulos and Comcast have settled their Transcript, Ex. B to Ballard Aff., at 10. Mr. Amoruso did not dispute and Alevizopoulos' claims against Comcast have appear for deposition by the September 29, 2000 deadline. been dismissed with prejudice. See 10/27/00 Stipulation of See Ballard Aff. ¶ 9. Dismissal with Prejudice. Comcast now moves to dismiss Amoruso's claims pursuant to Federal Rules of Civil Amoruso's lawyer has advised the Court that Mr. Amoruso Procedure 41(b), 16(f), 37(b)(2), and 37(d). For the following has ignored repeated requests to comply with the Court's reasons, Amoruso's Complaint against all defendants is orders regarding the requested affidavit and his deposition. dismissed. See Ballard Aff. ¶ 10; 9/20/00 Letter from Plaintiffs' Attorney Allan A. Joseph (“Joseph Letter”) at 1 (“Mr. Amoruso has not responded to any correspondence nor has he made I. Background any effort to return calls to our office.”). As a result, The background of this case is largely set forth in Antonios plaintiffs' counsel requested permission to withdraw from A. Alevizopoulos and Assocs., Inc. v. Comcast Int'l Holdings, representing Amoruso. See Joseph Letter at 2. During a telephone conference on September 25, 2000, plaintiffs' Amoruso was that he was “too busy” to talk to his attorney and See Lucas, 84 F.3d at 535 (stating that it is possible that a that he would get back to his attorney “at his convenience.” delay of thirty-nine days could be considered significant); Ballard Aff. ¶ 11. Maiorani v. Kawasaki Kisen K.K., Kobe, 425 F.2d 1162, 1163 (2d Cir.1970) (affirming Rule 41(b) dismissal where plaintiff *2 On September 27, 2000, Comcast filed this Motion sought two-day adjournment on day of trial). to Dismiss and served it on plaintiffs. Amoruso had until October 12, 2000 to submit its opposition papers. Neither the This case presents extreme circumstances warranting Court nor Comcast has received any opposition papers or a dismissal. Amoruso has prosecuted this case with extreme request for an extension.1 indolence. Mr. Amoruso has failed to comply with two separate, court-ordered deposition deadlines. He has failed to provide an affidavit necessary to determine whether this II. Discussion Court has jurisdiction over Mr. Amoruso in his individual capacity. He has even failed to respond to this motion. Mr. A. Rule 41(b) Amoruso has never provided any reasonable explanation for Rule 41(b) of the Federal Rules of Civil Procedure authorizes his complete inaction and willful disregard of this Court's a district court to dismiss an action when a plaintiff fails orders. To excuse Mr. Amoruso's delay here would be to “to prosecute or to comply with ... any order of the court.” ignore the fact that “when delays are ‘multiplied over and over Although “dismissal is a harsh remedy and is appropriate only for one reason or another in one case after another, as [they] in extreme situations,” Lucas v. Miles, 84 F.3d 532, 535 (2d surely [are] and would be once the bar realizes that deadlines Cir.1996), a district court's order of dismissal will be reviewed mean nothing, the net result is the build-up of a paralyzing only for abuse of discretion. See Shannon v. General Elec. backlog of pending cases.” ’ Peart v. City of New York, 992 Co., 186 F.3d 186, 193 (2d Cir.1999). F.2d 458, 462 (2d Cir.1993) (alterations in original) (quoting Harding v. Federal Reserve Bank of New York, 707 F.2d 46, The Second Circuit has set forth five factors to be considered 52 (2d Cir.1983) (MacMahon, J., concurring)). in evaluating a Rule 41(b) motion: (1) the duration of the plaintiff's failure to prosecute; (2) whether the plaintiff received notice that further delays would result in dismissal; 2. Notice That Further Delays Would Result in Dismissal (3) whether the defendant is likely to be prejudiced by further *3 On three occasions, Mr. Amoruso was put on delay; (4) whether the district court judge has taken care to notice that further delays would warrant dismissal of strike a balance between alleviating court calendar congestion Amoruso's Complaint. First, at the September 12, 2000 status and protecting plaintiff's rights to due process and a fair conference, the Court notified Mr. Amoruso, through his chance to be heard; and (5) whether the judge has adequately attorneys, that failure to comply with the Court's second assessed the efficacy of lesser sanctions. See id. at 193-94; deposition deadline would result in dismissal for failure to Jackson v. City of New York, 22 F.3d 71, 74 (2d Cir.1994). prosecute. Second, on October 19, 2000, the Court attempted to reach Mr. Amoruso by telephone but he did not return the Court's telephone call. Third, “[t]his motion to dismiss for 1. Duration of Plaintiff's Failure to Prosecute failure to prosecute also provided plaintiff with notice that Plaintiff has failed to prosecute this case for nearly four any further delay would result in the dismissal of [its] case.” months. Successful motions for failure to prosecute usually Smith v. Human Resources Admin. of New York City, No. consist of longer delays. See, e.g., Chira v. Lockheed Aircraft 91 Civ. 2295, 2000 WL 307367, at *2 (S.D.N.Y. Mar. 24, Corp., 634 F.2d 664 (2d Cir.1980) (affirming dismissal under 2000). Although “no one [Rule 41(b) ] factor is dispositive,” Rule 41(b) where plaintiff failed to prosecute for six months); Shannon, 186 F.3d at 194, inexcusable disregard for a judge's Peters-Turnbull v. Board of Educ. of the City of New York, No. warning justifies dismissal, even when the delay is brief. See 96 Civ. 4914, 1999 WL 959375, at *2- *3 (S.D.N.Y. Oct. Lucas, 84 F.3d at 535 (“Indeed, had [plaintiff] received ... a 20, 1999) (stating that delay of between five and ten months warning [that failure to comply would result in dismissal], “falls comfortably within the time frames found sufficient it is difficult to imagine how dismissal for unexplained in successful Rule 41(b) motions to dismiss”). However, non-compliance [of thirty-nine days] could be an abuse of there is no “magic number.” Copeland v. Rosen, 194 F.R.D. discretion.”). Although the Court is mindful of the Second Circuit's caution 3. Prejudice to Defendants that “a district judge should employ ... [Rule 41(b) dismissal] “Prejudice to defendants resulting from an unreasonable only when [she] is sure of the impotence of lesser sanctions,” delay may be presumed, but in cases where delay is more Chira, 634 F.2d at 665, Mr. Amoruso has proven repeatedly moderate or excusable, the need to show actual prejudice is that no lesser sanction would change his behavior and inspire proportionately greater.” Lyell Theater Corp. v. Loews Corp., him to prosecute this case diligently. Mr. Amoruso has 682 F.2d 37, 43 (2d Cir.1982) (internal citations omitted). repeatedly failed to abide by the Court's orders, even when Here, the prejudice caused by Mr. Amoruso's inaction is the Court has granted him extensions and second chances. “A significant. Comcast has been unable to depose Mr. Amoruso court need not beg a party to comply with its orders.” Peters- and does not know whether Amoruso or Mr. Amoruso, suing Turnbull, 1999 WL 959375, at *3. Mr. Amoruso's failure to in his individual capacity, can properly bring suit in federal respond to this motion demonstrates that he has lost interest court. Lacking such information makes it difficult, if not in this case. impossible, to defend the lawsuit. Defendants should not be forced to bear the expense of defending a lawsuit when Having considered each of the relevant factors, there is no the plaintiff has shown little or no interest in pursuing that doubt that dismissal of Amoruso's claims against Comcast is lawsuit. appropriate. 4. Balancing Court's Congestion With Plaintiff's Due C. Rules 16(f), 37(b)(2), and 37(d) Process Comcast also moves to dismiss Amoruso's claims pursuant Dismissing Amoruso's claims against Comcast does not to Federal Rules of Civil Procedure 16(f), 37(b)(2), and result in a violation of due process. Mr. Amoruso has 37(d), which authorize the imposition of sanctions-including had ample opportunity to prosecute this case and to be dismissal-for a party's failure to comply with a scheduling heard. Mr. Amoruso could have been heard on this motion order, to obey an order of discovery, or to appear at a but has squandered that opportunity by failing to submit deposition. Because the Court is dismissing the claims of opposition papers. The efficient administration of judicial Amoruso pursuant to Rule 41(b), it is unnecessary to address affairs-a consideration vital to the Court's ability to provide Comcast's other grounds for dismissal. Nonetheless, there is meaningful access to other litigants-depends on the Court's little doubt that these alternative grounds warrant dismissal overseeing its docket and guaranteeing that its cases progress for the very same reasons discussed above. with appropriate speed. See Lyell Theater Corp., 682 F.2d at 42; Chira, 634 F.2d at 668 (“Burgeoning filings and crowded calendars have shorn courts of the luxury of tolerating III. Conclusion procrastination.”). Furthermore, this case does not present the For the foregoing reasons, Comcast's motion to dismiss is situation in which the Court is “impos[ing] a penalty upon the granted with prejudice. client for [its] attorney's misconduct.” See Peart, 992 F.2d at 462. Rather, it is the client's misconduct that has precipitated All Citations this dismissal.2 Not Reported in F.Supp.2d, 2000 WL 1677984 5. Consideration of Lesser Sanctions Footnotes 1 On October 19, 2000, the Court left a message on Mr. Amoruso's voicemail requesting that he telephone Chambers to discuss the prosecution of his case. Mr. Amoruso did not respond to the Court's phone call. complied with the Court's orders and even settled its case with Comcast, makes it plain that blame for this delay lies with Amoruso, not its attorneys. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.