UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________

JAMES W.,

Plaintiff,

v. 6:21-cv-01190 (TWD)

COMMISSIONER OF SOCIAL SECURITY,

Defendant. __________________________________________

APPEARANCES: OF COUNSEL:

JAMES W. Plaintiff, pro se PO Box 126 Westmoreland, NY 13490

U.S. SOCIAL SECURITY ADMIN. RONALD W. MAKAWA OFFICE OF THE GENERAL COUNSEL Special Assistant U.S. Attorney Counsel for Defendant JFK Federal Building, Room 625 Boston, MA 02203

THÉRÈSE WILEY DANCKS, United States Magistrate Judge DECISION AND ORDER Currently before the Court, in this action filed by James W. (“Plaintiff”) seeking judicial review of a final decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”) pursuant to

(g), is Defendant’s unopposed motion to dismiss based upon pro se Plaintiff’s failure to prosecute. (Dkt. No. 15.) For reasons discussed below, the motion is granted.1

1 Pursuant to

(c), the parties have consented to the disposition of this case by a Magistrate Judge. (Dkt. Nos. 5, 6.) I. PROCEEDINGS TO DATE On November 1, 2021, Plaintiff commenced this action by filing a complaint, along with an application to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 3.) The Clerk provided Plaintiff with a copy of the Court’s Pro Se Handbook, Local Rules, and Notice, along with

General Order 18, which sets forth the procedures to be followed when appealing a denial of Social Security benefits. (Dkt. Nos. 4, 5.) On November 2, 2021, the Court granted Plaintiff’s IFP application. (Dkt. No. 9.) On January 31, 2012, the Commissioner filed the Certified Administrative Record and Transcript (“Record”) and served the Record on Plaintiff as directed by the Court. (Dkt. Nos. 10, 11.) As such, Plaintiff’s brief was due by March 17, 2022. (See Dkt. Nos. 10, 12.) When Plaintiff’s brief was not received by the due date, the Court issued a Text Order on March 21, 2022, which sua sponte extended Plaintiff’s deadline to file his brief to April 22, 2022. (Dkt. No. 13.) Plaintiff was advised that his failure to submit a brief may result in consideration of the Record without Plaintiff’s arguments and further warned this action may be

dismissed with prejudice for failure to prosecute.

Thereafter, when Plaintiff again did not file his brief by the extended deadline as directed, the Court issued a Text Order directing Defendant to file a motion to dismiss pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and General Order 18. (Dkt. No. 14.) On April 29, 2022, Defendant filed the pending motion to dismiss based on Plaintiff’s failure to prosecute this action. (Dkt. No. 15.) Plaintiff was directed to file his response to Defendant’s motion by May 20, 2022, and was warned that his failure to respond would result in dismissal of the action. (Dkt. No. 16.) To date, Plaintiff had not filed anything or otherwise communicated with the Court. II. DISCUSSION Rule 41(b) of the Federal Rules of Civil Procedure states that, “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claims against it.” Fed. R. Civ. P. 41(b); see also Link v. Wabash R.R. Co.,

(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,

, at *1 (N.D.N.Y. Aug. 22, 1996). Courts have also recognized that Rule 41(b) does not abrogate a district court’s inherent power to dismiss a complaint, sua sponte, for failure to prosecute. See Saylor v. Bastedo,

(2d Cir. 1980). However, “[d]ismissal is a harsh remedy and is appropriate only in extreme situations,” and “district courts should be especially hesitant to dismiss for procedural deficiencies where . . . the failure is by a pro se litigant.” Saundvallee B. v. Berryhill, No. 5:17-CV-0867,

, at *1 (N.D.N.Y. May 22, 2019) (citing Lucas v. Miles,

(2d Cir. 1996)). It is also well-settled that the term “these rules” in Rule 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,

(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 failure to file a brief.” (Dkt. No. 5.) A court considering a Rule 41(b) dismissal must weigh five 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.

Lucas,

(citations omitted). No singular factor is dispositive. Nita v. Connecticut Dep’t of Environmental Protection,

, 485 (2d Cir. 1994). First, Plaintiff has taken no action in this case beyond filing the complaint on November 1, 2021. His brief was initially due by March 17, 2022, four months ago. Nonetheless, he did not file a motion. The Court then extended the deadline to April 22, 2022. Again, Plaintiff did not file anything. Nor has Plaintiff responded to the pending motion to dismiss, and the time to do so has passed. Local Rule 41.2(a) states that “the plaintiff’s failure to take action for four (4) months shall be presumptive evidence of lack of prosecution.” L.R. 41.2(a). Accordingly, the first factor weighs in favor of dismissal. See, e.g., Ortega v. Apfel,

(2d Cir. 2001) (affirming dismissal for failure to prosecute where “[t]he record reveal[ed] that, beyond filing his complaint . . . [plaintiff] took no action to prosecute his case”); see also Lopez v. Catholic Charities of Archdiocese of N.Y., No. 00-CV-1247,

, at *3 (S.D.N.Y. Jan. 22, 2001) (dismissing under Rule 41(b) where “plaintiff has failed to take any steps to prosecute this action for at least three months”). Second, Plaintiff was warned that his failure to file a brief and/or respond to the pending motion would result in dismissal of the action with prejudice. (Dkt. Nos. 13, 16.) “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.” See Nolan v. Primagency, Inc., No. 07 Civ. 134,

, at *3 (S.D.N.Y. Apr. 16, 2008) (“citing Shannon v. General Elec. Co.,

, 194-95 (2d Cir. 1999)); Europacific Asset Mgmt. Corp. v. Tradescape, Corp.,

(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. Third, “while the prejudice to [D]efendant and the burden on the Court are currently

minimal, [P]laintiff’s delay ‘lean[s] in the direction of dismissal’ even if ‘only slightly.’” Rozell v. Berryhill, No. 18-CV-969,

, at *2 (S.D.N.Y. Mar. 25, 2019) (quoting LeSane v. Hall’s Sec. Analyst, Inc.,

(2d Cir. 2001)); see also Lomack v. Comm’r of Soc. Sec., No. 18-CV-6083,

, at *2 (W.D.N.Y. Jan. 8, 2019) (“The Commissioner has an interest in the timely resolution of this case, as the Social Security Administration is significantly overburdened with applications and appeals.”). Nothing of substance has been completed in this case since the filing of the Record on January 31, 2022. See Caussade v. U.S.,

(S.D.N.Y. 2013) (“Where a [p]laintiff has become inaccessible for months at a time, courts presume prejudice.”) (citations omitted); see also Rubin v. Abbott Labs.,

(S.D.N.Y. 2016) (finding “calendar congestion” outweighs

a plaintiff’s opportunity to be heard when the plaintiff has rebuffed opportunities to be heard). Moreover, Plaintiff has failed repeatedly to respond to Court orders or otherwise indicate that he intends to prosecute this case. Fourth, “although the Court recognizes Plaintiff’s interest in receiving a fair chance to be heard, it must also consider the heavy demands of its docket, especially in the Social Security context.” Mannan v. Soc. Sec. Admin., No. 17-CV-6800,

, at *2 (E.D.N.Y. May 11, 2020). Plaintiff has yet to participate in the Court-ordered briefing, or otherwise indicate that he intends to prosecute this case. Defendant has moved to dismiss, and Plaintiff failed to respond. See, e.g., Idlet v. Comm’r of Soc. Sec., No. 18-CV-05183,

, at *6 (E.D.N.Y. June 19, 2020) (finding the plaintiff’s inaction had “unnecessarily burdened the court’s work by requiring the court to continually monitor the docket and order plaintiff to prosecute the case”). It is the need to monitor and manage cases such as this when one party refuses to participate that delays the resolution of 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. See Smith v. Human Res. Admin. of N.Y.C., No. 91-CV-2295,

, at *3 (S.D.N.Y. Mar. 24, 2000) (“[L]esser sanctions are not appropriate in this case [because] [c]ourt orders and direction have not prompted plaintiff to move her case forward.”). Additionally, Plaintiff is proceeding IFP, therefore “rendering monetary sanctions inappropriate.”

In sum, the Court has given Plaintiff opportunities to be heard and pursue his Social Security appeal, but he has refused to prosecute this action and respond to the Court’s Orders. Therefore, after carefully considering the foregoing factors, the Court finds dismissal of

Plaintiff’s complaint with prejudice is warranted. WHEREFORE, it is hereby ORDERED that Defendant’s motion to dismiss (Dkt. No. 15) is GRANTED, Plaintiff’s complaint (Dkt. No. 1) is DISMISSED WITH PREJUDICE for failure to prosecute; and it is further ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on Plaintiff in accordance with the Local Rules, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders,

(2d Cir. 2009) (per curiam). The Clerk of the Court is directed to enter judgment for Defendant and close this action. IT IS SO ORDERED.

Dated: July 18, 2022 Syracuse, New York Dar Thérése Wiley Dancks United States Magistrate Judge

(S.D.N.Y. Jan. 14, 1994) (citations omitted). Only the Westlaw citation is currently available. United States District Court, N.D. New York. Additionally, this Court specifically cautioned Freeman that her failure “to promptly notify the Clerk's Office of any Millicient FREEMAN, Plaintiff, change in her address ... [would] result in the dismissal of the v. instant action.” See Dkt. No. 3 at 7. Kevin LUNDRIGAN, C.O., Defendant. Moreover, a plaintiff has the duty to inform the Court of any No. 96–CV–1190 (RSP/RWS). address changes. As I have stated: | Aug. 22, 1996. It is neither feasible nor legally Attorneys and Law Firms required that the clerks of the district Millicient Freeman, Oriskany, NY, Pro se. courts undertake independently to maintain current addresses on all McLane and Smith, L.L.P., Utica, NY (Steven A. Smith, of parties to pending actions. It is counsel), for Defendant. incumbent upon litigants to inform the clerk of address changes, for it is manifest that communications ORDER between the clerk and the parties or their counsel will be conducted POOLER, District Judge. principally by mail. In addition to keeping the clerk informed of any *1 By Order dated February 5, 1996 (“Order”), I approved change of address, parties are obliged the Order and Report–Recommendation of Magistrate Judge to make timely status inquiries. Ralph W. Smith, Jr., dated October 5, 1995, and dismissed Address changes normally would be this action as against Daniel Middaugh, Michael Durant, Todd reflected by those inquiries if made in Egger, Robert Stanton and Daryl Bourant. See Dkt. No. 11. writing. A copy of the Order was served on Freeman at her last known address by regular mail on February 6, 1996. On February 12, Dansby v. Albany Cty Corr. Facility, No. 95–CV–1525, 1996 1996, the Order was returned to the Court marked “No Longer WL 172699, *1 (N.D.N.Y. Apr. 10, 1996) (Pooler, J.) (quoting at This Facility—Please Return to Sender.” See Dkt. No. 12. Perkins v. King, No. 84–3310, slip op. at 4 (5th Cir. May 19, 1985) (other citations omitted)); see generally Rule 41.2(b) of On June 19, 1996, Steven A. Smith, Esq., attorney for the the Local Rules of Practice for the Northern District of New defendant, filed an affidavit with the Court stating that he had York. attempted to serve a first set of interrogatories on Freeman at the address listed on the summons, and that it was returned This matter cannot proceed without notification to the Court to him by the Post Office marked “RTS” or return to sender. by Freeman of her current address. Therefore, it is hereby: See Dkt. No. 14. ORDERED, that this action is dismissed, See Rule 41.2(b) of Rule 41(b) of the Federal Rules of Civil Procedure provides the Local Rules of Practice for the Northern District of New that a court may, in its discretion, dismiss an action based York, and it is further; upon the failure of a plaintiff to prosecute an action or comply with any order of the court. Link v. Wabash Railroad County ORDERED, that the Clerk serve a copy of this Order on Independent School District,

(1962). This power Freeman by regular mail at her last known address and on to dismiss an action may be exercised when necessary to Steven A. Smith, Esq., attorney for the defendant. achieve orderly and expeditious disposition of cases. See All Citations Not Reported in F.Supp.,

End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

dismissing his case.” Dkt. No. 19 (“May 2018 Text Order”) Only the Westlaw citation is currently available. (citing Fed. R. Civ. P. 41(b) and Local Rule 41.2(a)). After the United States District Court, N.D. New York. Court granted Defendant a thirty-day extension, Dkt No. 21 (“July 2018 Text Order”), Defendant filed her brief on August SAUNDVALLEE B., Plaintiff, 28, 2018. Dkt. No. 22 (“Defendant's Brief”). Plaintiff did not v. submit a response and has taken no further action in this case. Nancy A. BERRYHILL, Acting Docket. Commissioner of Social Security, Defendant. 5:17-CV-0867 (LEK) II. LEGAL STANDARD | “A District Court may, sua sponte, dismiss an action for lack Signed 05/22/2019 of prosecution.” Lukensow v. Harley Cars of N.Y.,

(S.D.N.Y. 1989); see also Harding v. Fed. Reserve Attorneys and Law Firms Bank of N.Y.,

(2d Cir. 1983) (“[D]ismissal pursuant to Fed. R. Civ. P. 41(b) for lack of prosecution Saundvallee Bullock, Syracuse, NY, pro se. or for failure to comply with an order of the court is a matter committed to the discretion of the district court.”). Fergus J. Kaiser, Heetano Shamsoondar, Social Security “[D]ismissal is a harsh remedy and is appropriate only in Administration Office of Regional General Counsel, New extreme situations,” and “district courts should be especially York, NY, for Defendant. hesitant to dismiss for procedural deficiencies where ... the failure is by a pro se litigant.” Lucas v. Miles,

(2d Cir. 1996). DECISION AND ORDER When considering a dismissal for failure to prosecute under Lawrence E. Kahn, U.S. District Judge Rule 41(b), the Court must consider five factors: I. BACKGROUND “(1) the duration of the plaintiff's failure to comply with *1 On August 8, 2017, pro se plaintiff Saundvallee B. filed a the court order, (2) whether plaintiff was on notice that complaint under

(g) against defendant Social failure to comply would result in dismissal, (3) whether the Security Commissioner, as well an application to proceed defendants are likely to be prejudiced by further delay in in forma pauperis (“IFP”). Dkt. Nos. 1 (“Complaint”), 3 the proceedings, (4) a balancing of the court's interest in (“IFP Application”). On August 10, 2017, the Court granted managing its docket with the plaintiff's interest in receiving Plaintiff's IFP Application. Dkt No. 6 (“August 2017 Order”). a fair chance to be heard, and (5) whether the judge On December 18, 2017, Defendant filed the Social Security has adequately considered a sanction less drastic than Administrative Record and Transcript, and the Court set a dismissal.” February 1, 2018 due date for Plaintiff's brief. Dkt. No. 12 (“Record”). On February 2, 2018, Plaintiff requested a two- *2

No one factor is dispositive. LeSane v. Hall's Sec. month extension to file his brief, Dkt. No. 15 (“Plaintiff's Analyst, Inc.,

(2d Cir. 2001). First Extension Request”), which the Court granted in part, extending the deadline to March 23, 2018, Dkt. No. 16 (“February 2018 Text Order”). On March 23, 2018, the Court III. DISCUSSION granted Plaintiff's request for another two-month extension. The first factor favors dismissal because Plaintiff has taken no Dkt. Nos. 17 (“Plaintiff's Second Extension Request”), 18 action on this case since filing his second extension request (“March 2018 Text Order”). When Plaintiff had not filed in March 2018, a failure to prosecute of significant duration. his brief by May 30, 2018, the Court issued a text order See Jiminez v. Astrue, No. 09-CV-50S,

, instructing Defendant to file her brief within sixty days, at *2 (W.D.N.Y. Jan. 29, 2010) (“Six months is a failure notifying Plaintiff that he would have thirty days after service of significant duration.”); Lopez v. Catholic Charities of of Defendant's brief to file a brief in support of his position Archdiocese of N.Y., No. 00-CV-1247,

, at *3 should he choose to do so, and warning Plaintiff that “his (S.D.N.Y. Jan. 22, 2001) (dismissing under Rule 41(b) where for at least three months”); see also N.D.N.Y.L.R. 41.2(a) order to respond to the defendant's statement of material (“[P]laintiff's failure to take action for four (4) months shall facts.

. In contrast, dismissal is appropriate here be presumptive evidence of lack of prosecution.”). because Plaintiff has taken almost no action since filing his Complaint, and has provided no guidance—in the Complaint The second factor favors dismissal because the May 2018 or elsewhere—as to the grounds on which he appeals. See Text Order put Plaintiff on notice that failure to file his brief Ortega v. Apfel,

(2d Cir. 2001) (affirming could result in dismissal. The third factor also favors dismissal dismissal under Rule 41(b) where “[t]he record reveals that, because, unlike cases of moderate or excusable delay in which beyond filing his complaint ... [plaintiff] took no action to there is a need to show actual prejudice, Plaintiff's year of prosecute his case.”); see also Rivera v. Comm'r of Soc. Sec. unexplained inaction is presumed to prejudice Defendant. See Admin., No. 16-CV-2316,

, at *2 (N.D. Lyell Theatre Corp. v. Loews Corp.,

, 43 (2d Cir. Ohio Apr. 11, 2017), report and recommendation adopted sub 1982) (“Prejudice to defendants resulting from unreasonable nom. Rivera v. Comm'r of Soc. Sec., No. 16-CV-2316, 2017 delay may be presumed, but in cases where delay is more WL 1649825 (N.D. Ohio May 2, 2017) (dismissing complaint moderate or excusable, the need to show actual prejudice against Commissioner of Social Security under Rule 41(b) is proportionally greater.”) (internal citations omitted). The because plaintiff failed to file brief on the merits). fourth factor, in contrast, favors Plaintiff because “[t]here must be compelling evidence of an extreme effect on court *3 The balance of the five factors indicates that this action congestion before a litigant's right to be heard is subrogated should be dismissed. See Lopez,

, at *6 to the convenience of the court.” Lucas, 84 F.3d at 535–36. (dismissing under Rule 41(b) where, like here, all factors There is no evidence of such an “extreme effect” in this case. except court congestion favored dismissal). Finally, the Court has considered lesser sanctions and IV. CONCLUSION concluded, based on Plaintiff's apparent disinterest in Accordingly, it is hereby: pursuing his case, that they would be ineffective. See Smith v. Human Res. Admin. of N.Y.C., No. 91-CV-2295, 2000 ORDERED, that the Complaint (Dkt. No. 1) is DISMISSED WL 307367, at *3 (S.D.N.Y. Mar. 24, 2000) (“[L]esser for failure to prosecute; and it is further sanctions are not appropriate in this case [because] [c]ourt orders and direction have not prompted plaintiff to move ORDERED, that the Clerk of the Court shall serve a copy her case forward.”). Additionally, Plaintiff is proceeding IFP, of this Decision and Order upon the parties in this action in “rendering monetary sanctions inappropriate.”

The Court accordance with the Local Rules. has also considered deciding the merits of the appeal in the absence of Plaintiff's brief as the Second Circuit has indicated IT IS SO ORDERED. that, at least in the summary judgment context where a plaintiff fails to respond to a defendant's statement of material facts, “resolutions on summary judgment ... are generally to All Citations be preferred to dismissals under Rule 41(b).” LeSane,

. In LeSane, however, the plaintiff prosecuted the Not Reported in Fed. Supp.,

End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

asserted improper objections, refused to produce documents, Only the Westlaw citation is currently available. referred defendant to the Complaint in lieu of production, United States District Court, S.D. New York. and produced only those documents already attached to the Complaint. (Id.) On June 5, 2000, defendant served its First Wilfredo LOPEZ, Plaintiff, Request for Interrogatories (the “First Interrogatories”). (Id. v. ¶ 10 and Ex. E.) CATHOLIC CHARITIES OF THE ARCHDIOCESE OF NEW YORK, Defendant. On June 15, 2000, defendant wrote to Mr. Lopez, asserting, among other things, that his response to the No. 00 Civ. 1247(AGS). First Request was “improper, incomplete and would require | supplementation.” (Id. ¶ 11 and Ex. F.) Plaintiff did not Jan. 22, 2001. respond. (Id.) On August 3, 2000, defendant again wrote to Mr. Lopez, requesting a supplemental response to the First Request and a response to the First Interrogatories. (Id. ¶ MEMORANDUM ORDER 12 and Ex. G.) The August 3, 2000 letter also requested that Mr. Lopez's newly retained counsel, who had called SCHWARTZ, J. defendant, confirm in writing that he had been retained by Mr. Lopez. (Id.) On August 9, 2000, plaintiff sent a letter *1 Defendant Catholic Charities of the Archdiocese of to defendant counsel and asserted that, “[t]he interrogatories New York moves the court for an order, pursuant to will be forwarded to you shortly.” (Id. ¶ 13 and Ex. H.) Fed.R.Civ.P. 41(b), dismissing the Complaint in its entirety. On August 15, 2000, defendant wrote to plaintiff, stating In the alternative, defendant seeks an order, pursuant to again that the response to the First Request was insufficient Fed.R.Civ.P. 37, precluding plaintiff from introducing certain and that a supplemental response was required. (Id. ¶ 14 evidence at trial, calling any witnesses at trial, or amending and Ex. I.) Plaintiff never responded. (Id. ¶ 14.) On August the Complaint. For the reasons set forth below, defendant's 23, 2000, defendant wrote to the Court, requesting that the motion to dismiss for failure to prosecute is granted. Court address the discovery issues at the pretrial conference scheduled for that date. (Id. ¶ 15 and Ex. J.) During the August 23, 2000 pretrial conference, the Court addressed the issues I. BACKGROUND1 raised by defendant. The Court told the parties to proceed 1 Plaintiff has not responded to this motion. with discovery on the assumption that discovery should be Accordingly, for purposes of this motion, the Court mostly, if not fully, completed by the next pretrial conference, accepts as true the facts asserted by defendant. scheduled for October 17, 2000. (Id. ¶ 16 .) The Court also instructed plaintiff to draft an amended complaint and submit Wilfredo Lopez, proceeding pro se, filed the Complaint on it to defendant for review; if there were no objections, the February 18, 2000. He alleges that defendant discriminated amended complaint would be filed. (Id.) against him on the basis of national origin. (Aff. of Christopher B. Hitchcock dated Dec. 12, 2000 (“Hitchcock *2 On October 3, 2000, defendant again wrote to plaintiff Aff.”) ¶ 4 and Ex. A.) Defendant answered on April 5, 2000. seeking the outstanding discovery and the proposed amended (Id. ¶ 5 and Ex. B.) At an April 10, 2000 pretrial conference, complaint. (Id. ¶ 17 and Ex. K.) On October 12, 2000, the Court set a discovery schedule requiring the parties to plaintiff wrote to defendant and stated that plaintiff would serve requests for production of documents by April 24, 2000. respond to defendant's request “shortly.” (Id. ¶ 18 and Ex. The parties were to respond to requests for production by May L.) On October 13, 2000, defendant again wrote to plaintiff 15, 2000. Depositions were to be completed by June 30, 2000. seeking the outstanding discovery and the proposed amended (Id. ¶ 6.) Defendant served its First Request for Production complaint. (Id. ¶ 19 and Ex. M.) The October 13, 2000 of Documents (the “First Request”) on April 21, 2000. (Id. letter states that continued delay by plaintiff would result ¶ 7 and Ex. C.) At a May 5, 2000 pretrial conference, the in an application to the Court. (Id. Ex. M.) On October 16, Court allowed Mr. Lopez until May 31, 2000 to respond to the 2000, defendant wrote to the Court, requesting that the Court First Request. (Id. ¶ 8.) On May 26, 2000, Mr. Lopez served a address the discovery issues and the amended complaint at N.) The October 17, 2000 pretrial conference was adjourned thereto.) The facsimile confirmation report indicates that the until October 25, 2000 in response to a request by plaintiff. letter was successfully transmitted to the number listed on the (Id. ¶ 20.) On October 23, 2000, defendant again wrote to the letterhead of Mr. Lopez's counsel. (Id. and exhibits thereto.) Court regarding plaintiff's failure to provide the outstanding Nonetheless, plaintiff never responded. (Id.) On January 2, discovery or the proposed amended complaint. (Id. ¶ 21 2001, defendant sent a copy of the instant motion by facsimile and Ex. O.) Defendant requested that the October 25, 2000 to Mr. Lopez. (Letter from Christopher B. Hitchcock to the pretrial conference also serve as a pre-motion conference. (Id. Court dated January 4, 2001.) Plaintiff never responded. ¶ 21.) At the October 25, 2000 pretrial conference, which plaintiff did not attend, the Court authorized defendant to move to preclude plaintiff from offering certain evidence II. DISCUSSION at trial. On October 27, 2000, defendant wrote to plaintiff, *3 Rule 41(b) provides, in relevant part, that, “[f]or the informing plaintiff of the proceedings at the October 25, 2000 failure of the plaintiff to prosecute or to comply with these pretrial conference and of defendant's intention to move to rules or any order of court, a defendant may move for preclude. (Id. ¶ 22 and Ex. P.) Plaintiff did not respond. (Id. dismissal of an action....” Fed.R.Civ.P. 41(b). The Second ¶ 22.) On November 3, 2000, defendant served a motion to Circuit has stated that “[i]nvoluntary dismissal for plaintiff's preclude plaintiff from offering certain evidence at trial, or, failure to prosecute is a matter committed to the discretion of in the alternative, to compel plaintiff to provide outstanding the trial court by Rule 41(b).... However, dismissal is a harsh discovery. (Id. ¶ 23.) Plaintiff did not oppose the motion. remedy to be utilized only in extreme circumstances.” Colon v. Mack,

(2d Cir. 1995) (internal quotations and By Memorandum Order dated November 17, 2000, the citations omitted). Court denied defendant's motion to preclude, but granted defendant's motion to compel discovery.

In deciding a motion under Rule 41(b), a court must consider (Nov. 20, 2000). The Court ordered that, no later than five factors: (i) the duration of the plaintiff's failures; (ii) December 8, 2000, plaintiff was to answer the First whether plaintiff received notice that further delay would Interrogatories, produce any non-privileged documents result in dismissal; (iii) whether the defendant is likely to responsive to the First Request, and provide defendant with be prejudiced by further delay; (iv) the balance between a copy of the proposed amended complaint.

at *3– *4. alleviating court calendar congestion and the plaintiff's due process rights; and (v) the efficacy of lesser sanctions. E.g. In the event that plaintiff failed to comply with the Court's LeSane v. Hall's Security Analyst, Inc., No. 99–9421, 2001 order, the Court authorized defendant to renew its motion to preclude on or after December 11, 2000.

. The Court WL 10324, at *1 (2d Cir. Jan. 4, 2001). None of the five held another pretrial conference in this matter on November factors is, by itself, dispositive.

. 20, 2000. Yet again, plaintiff did not appear. The Court instructed defendant to serve plaintiff with a copy of the A. Duration of Plaintiff's Failures November 17 Memorandum Order. Defendant did so by letter Plaintiff has consistently failed to comply with the Court's dated November 27, 2000. (Hitchcock Aff. ¶ 25.) Plaintiff orders. First, plaintiff has failed to comply with the Court's never complied with the November 17 Memorandum Order. order to serve defendant with the proposed amended (Id.) complaint for nearly five months. During an August 25, 2000 pretrial conference, the Court instructed plaintiff to provide On December 12, 2000, defendant served the instant motion his proposed amended complaint to defendant. Plaintiff still by mail and filed a copy with the Court. (Letter from has not done so. The Court warned in its November 17, Christopher B. Hitchcock to the Court dated December 21, 2000 Memorandum Order that failure to serve the proposed 2000.) Defendant mailed the service copy of its motion to amended complaint by December 8, 2000 would result in a the address listed on the letterhead of Mr. Lopez's counsel. denial of plaintiff's request to amend.

, at However, the service copy of the motion was returned to defendant unopened. This was the first time that any *4. Still, plaintiff has not even offered an explanation for his correspondence to plaintiff had been returned to defendant. failure to comply with the Court's directives. Next, plaintiff (Id.) Defendant sent a letter to Mr. Lopez's counsel by has failed to comply with the Court's scheduling orders by not attending pretrial conferences for approximately three scheduled for October 17, 2000 at plaintiff's request, plaintiff also Rosen, 194 F.R.D. at 132 (Second Circuit has affirmed did not attend the rescheduled conference on October 25, dismissals where party failed to comply with court orders 2000. Nor did plaintiff offer any explanation for this failure and otherwise showed lack of respect for court). Stonescu to appear before the Court. Plaintiff also failed to attend v. Jablonsky,

(S.D.N.Y. 1995) (failure a pretrial conference on November 20, 2000. Again, no to attend pretrial conferences favors dismissal under Rule explanation was ever offered. Lastly, plaintiff has failed for 41(b)). approximately six weeks to comply with the Court's order to provide discovery. In its November 17, 2000 Memorandum Order, the Court ordered plaintiff to provide certain discovery B. Notice that Further Delays Will Result in Dismissal no later than December 8, 2000.

, at *3– The Court never specifically warned plaintiff that failure to prosecute this action could result in dismissal. However, *4. Plaintiff has yet to provide such discovery, or even offer courts in this District have held that a motion pursuant to any explanation for this failure to comply with a court order. Rule 41(b) (as opposed to a sua sponte dismissal by the court) provides the plaintiff with notice. See Alevizopoulos, 2000 In addition to disobeying the Court's orders, the record WL 1677984, at *3; Smith v. Human Res. Admin. of New indicates that plaintiff has failed to take any steps to prosecute York City, No. 91 Civ. 2295(MGC),

, at this action for at least three months. The last known action in this case by plaintiff was an October 12, 2000 letter from *2 (S.D.N.Y. Mar. 24, 2000); Stonescu,

; plaintiff to defendant claiming that the former would respond Rodriguez v. Walsh, No. 92 Civ. 3398(PKL),

, to the latter's discovery requests “shortly.” (Hitchcock Aff. at *2 (S.D.N.Y. Jan. 14, 1994); Muhammad v. Neil, No. Ex. L.) Plaintiff has never done so. In fact, the record indicates 92 Civ. 1870(PKL),

, at *2 (S.D.N.Y. Jan. that plaintiff has done nothing at all since October 12, 2000. 14, 1994). While defendant was unable to serve a copy of its motion papers on plaintiff by mail, defendant did advise *4 Successful motions to dismiss for failure to prosecute Mr. Lopez's counsel of the motion via facsimile. Had Mr. typically involve longer delays than those present here, see Lopez's counsel replied to defendant's facsimile, defendant Antonios A. Alevizopoulos & Assoc., Inc. v. Comcast Int'l would no doubt have served him with a full set of motion Holdings, Inc., No. 99 Civ. 9311(SAS),

, papers. Defendant also sent a copy of the motion papers to Mr. at *2 (S.D.N.Y. Nov. 8, 2000) (collecting cases), but courts Lopez himself via facsimile. Accordingly, plaintiff received have granted such motions on delays of four months or notice that his continued failure to prosecute this action could less where circumstances warranted dismissal.

(collecting result in dismissal. This factor favors dismissal, then. cases and dismissing case at bar for four month delay). There is no “magic number” of months required for dismissal under Rule 41(b). Copeland v. Rosen,

, C. Prejudice to Defendants 132 (S.D.N.Y. 2000). The circumstances of this case warrant *5 The Second Circuit has held that “prejudice to defendants dismissal. Plaintiff has not just been dilatory or obstructionist resulting from unreasonable delay may be presumed, but these past several months; plaintiff has ceased to prosecute in cases where delay is more moderate or excusable, the this action at all. Plaintiff has not attended conferences need to show actual prejudice is proportionally greater. Lyell before the Court. Plaintiff has not complied with court orders. Theatre Corp. v. Loews Corp.,

(2d Cir. 1982). Plaintiff has not responded to motions. Plaintiff has not Here there is evidence of actual prejudice. Beyond simply even answered correspondence seeking to ascertain counsel's delaying the resolution of this action, plaintiff's complete correct mailing address. In short, plaintiff appears to have inaction has cost defendant a significant amount of time and completely abandoned this action. Moreover, plaintiff has money. (Hitchcock Aff. ¶ 26.) Plaintiff's failure to provide any shown utter disrespect for the Court by failing to comply discovery (or even any objections to the First Interrogatories) with court orders and by refusing to attend court conferences. has required defendant to make two otherwise unnecessary Given these facts, the first factor favors dismissal. See Peart motions: one to compel plaintiff's participation in his own v. City of New York,

(2d Cir. 1993) (despite action, and one to preclude plaintiff from offering into short duration of delays, first factor supported dismissal evidence the discovery material he was ordered to produce but where, among other things, plaintiff failed to comply with did not. Further inaction by plaintiff would require additional should not be forced to bear the expense of defending a any documents relating to his claim for damages. However, lawsuit when the plaintiff has shown little or no interest in such relief would still require defendant to either move for summary judgment or proceed to trial. Either option would pursuing that lawsuit.” Alevizopoulos,

, require the expenditure of substantial amounts of time and at *3. Additional delay would also increase the likelihood money. This is not a situation where the Court could now that defendant's witnesses might become unavailable or decide the action on the merits. See Lesane,

, experience diminished recollection of the events at issue. See at *3 (where plaintiff fails to respond to summary judgment Peart,

. Accordingly, there is evidence of motion, it is preferable for a court to accept defendant's facts prejudice and the third factor favors dismissal. and grant summary judgment on the merits rather than dismiss for failure to prosecute). Thus, lesser sanctions would simply D. Balancing Court Congestion With Plaintiff's Due impose on defendant the burden of continuing to litigate an Process Rights action that plaintiff appears to have abandoned completely. The Second Circuit has held that, “[t]here must be compelling Accordingly, this factor favors dismissal. evidence of an extreme effect on court congestion before a litigant's right to be heard is subrogated to the convenience of *6 The balance of factors governing dismissals under Rule the court.” LeSane,

, at *3 (quoting Lucas v. 41(b) clearly indicates that this action should be dismissed for Miles, 84 F.3d at 535–36 (2d Cir. 1996)) (internal quotations failure to prosecute. Accordingly, it is not necessary for the omitted). Although plaintiff has wasted the Court's time by Court to consider defendant's request for alternative relief. refusing to attend pretrial conferences, this case has not had “an extreme effect” on the Court's docket. Accordingly, this III. CONCLUSION factor does not favor dismissal. For the reasons set forth above, defendant's motion to dismiss the Complaint pursuant to Fed.R.Civ.P. 41(b) is granted. The E. Efficacy of Lesser Sanctions. Clerk of the Court is directed to close the file in this action. Lesser sanctions would not be effective here. Based on plaintiff's failure to comply with the Court's November 17, SO ORDERED. 2000 Memorandum Order, the Court could grant defendant's alternative request for relief, precluding plaintiff from: All Citations introducing any evidence at trial relating to plaintiff's physical or mental condition; introducing at trial any documents Not Reported in F.Supp.2d,

in his custody or control other than those annexed to his End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

/50644, 70 Fed. R.serv.3d 397

Fa The Court in Nolan I imposed civil contempt sanctions on KeyCite Yellow Flag - Negative Treatment Mr. Piccone and Mr. Flaum, in the amounts of $750.00 and Distinguished by Keitty. Doe, W:D.N-Y., December 5, 2013 $200.00, respectively. See Nolan I at *1-4. Nolan I also

included the following directives: United States District Court, S.D. New York. Additionally, Mr. Piccone has until John NOLAN, Plaintiff, March 17, 2008, to comply with the V. Court's November 1, 2008 and January PRIMAGENCY, INC. et al., Defendants. 3, 2008 orders. This means that by March 17, 2008, Mr. Piccone must (1) No. 07 Civ. 134(RJS). properly file the Amended Complaint | via the Court's electronic case system April 16, 2008. (“ECF”); (2) submit a courtesy copy of the Amended Complaint to chambers in accordance with the Individual MEMORANDUM AND ORDER Practices of the undersigned; (3) confer with Defendants' counsel, Mr. RICHARD J. SULLIVAN, District Judge. Flaum, regarding a joint proposed Case Management Plan; (4) submit *1 On January 31, 2008, this Court issued an Order to Show a proposed Plan to the Court by Cause (the “OSC”) sua sponte, directing counsel for plaintiff hand delivery, email, or regular mail John Nolan, Mr. Louis A. Piccone, Esq., and counsel for provided that it rea ch es chambers by defendants Primagency, Inc., Steven Lebetkin, and Conrad March 17, 2008: and (5) submit a J. Isoldi (“Defendants”), Mr. Neil R. Flaum, Esq., to show joint status letter, along with Mr. cause why this case should not be dismissed and/or why Flaum, outlining what, if anything sanctions and a finding of civil contempt on Mr. Piccone and/ has tr. an, spired in this case since the or Mr. Flaum should not issue given the failure of plaintiff November 1. 2007 conference. Mr to diligently prosecute this case, and the failure of the parties Piccone is al so directed to forward to follow Court orders. After counsel for plaintiff failed to a copy of this order to his client appear on the return date of the OSC, the Court issued an plaintiff John Nolan and file proof order on March 3, 2008 imposing sanctions on the parties, of service electronically with the but declining to dismiss the case, provided that the parties Court .... Failure to comply with this complied with the directives contained in that order. See Order in any respect shall result in Nolan y. Primagency, Inc., No. 07 Civ. 134(RJS), 2008 WL dismissal of this case pursuant to 650387 .D.N.Y. Mar. 3, 2008) (“Nolan I’ ). Plaintiff Rule 41(b) of the Federal Rules of failed to comply with that order in each and every respect. Civil Procedure Accordingly, pursuant to Federal Rule of Civil Procedure 41(b), this action is dismissed with prejudice. Nolan I,

at *3 (emphasis added). With regard to Mr. Flaum, Nolan J contained the following I. BACKGROUND directives: The Court presumes the parties' familiarity with the facts relevant to this Order, which are recounted in detail in the . . In addition, Mr. Flaum is given a OSC, as well as prior orders and transcripts in this matter, , . . . . . . limited amount of time in which to including Nolan I. However, certain facts post-date those . . comply with past orders. This means orders and are recounted here. that Mr. Flaum must (1) properly

Complaint via the Court's ECF system letter that day (see id.), 21 days after the deadline contained by April 7, 2008, assuming, of course, in Nolan I.2 It is unclear whether Mr. Flaum ever forwarded that the Amended Complaint has a copy of Nolan I to his clients as directed, but it is certainly been filed as of March 17, 2008; clear from the docket sheet in this case that Mr. Flaum failed (2) submit a courtesy copy of the to file the required proof of service. See Nolan I, 2008 WL Answer to chambers in accordance 650387, at *4. with the Individual Practices of the undersigned; (3) confer with Plaintiff's 1 Mr. Piccone asserted on the record at the April counsel, Mr. Piccone, regarding a joint 8, 2008 conference that he had in fact filed the proposed Case Management Plan; (4) amended complaint in November, 2007, and that submit a proposed Plan to the Court by he could submit proof demonstrating this fact. hand delivery, email, or regular mail, (See Transcript of April 8, 2008 Conference (“Apr. provided that it reaches chambers by 8 Tr.”) at 5-7.) While it may be true that Mr. March 17, 2008; and (5) submit a joint Piccone did technically file a hard copy of the status letter, along with Mr. Piccone, amended complaint in this matter, the amended no later than March 17, 2008, outlining complaint was never properly filed on ECF, what, if anything, has transpired in because he never emailed the amended complaint this case since the November 1, 2007 to case_openings@nysd . uscourts.gov, pursuant to conference. If for some reason a joint ECF procedure. As a result of his failure to do so, letter is not possible, Mr. Flaum shall the amended complaint is not available on ECF. submit a status letter to the Court This is exactly what the Court sought to ameliorate by March 17, 2008 explaining why when it ordered Mr. Piccone to “properly file” the the submission of a joint letter was amended complaint on ECF. See Nolan I, 2008 not possible. Additionally, Mr. Flaum WL 650387, at *3. In any event, regardless of shall be present at the conference on the extent of Mr. Piccone's non-compliance with Tuesday, April 8, 2008 at 10:30 a.m., this portion of Nolan I, this dismissal is based and is also directed to forward a copy on plaintiff's counsel's failure to follow numerous of this Order to his clients and file other directives, as outlined in this and prior orders. proof of service electronically with the Court. Failure to strictly comply 2 A letter from Mr. Flaum addressed to the Court and with this order shall result in further dated April 7, 2008 was received in Chambers on sanctions. April 9, 2008, and contained a check payable to the Clerk of the Court in the amount of $200.00. That check was tendered to the cashier in the Clerk's *2

. The Court in Nolan I stated three separate times office on April 9, 2008. that the case would be dismissed if plaintiff failed to comply with any of these directives.

. II. DISCUSSION Incredibly, as of April 8, 2008, as noted in the record on that day's conference, the parties collectively had failed to A. Legal Standard for Dismissal Pursuant to Rule 41(b) comply with even one of the directives contained in Nolan I. (See Apr. 8 Tr. at 3.) Mr. Piccone admitted on the record that Rule 41(b) expressly authorizes involuntarily dismissal “[i]f he had not complied with any of the directives in Nolan I, and the plaintiff fails to prosecute or to comply with these rules that his failure to comply with Nolan I was due to personal or a court order.” Fed.R.Civ.P. 41(b); see also LeSane v. issues that the Court does not recount here but are referenced, Hall's Sec. Analyst, Inc.,

(2d Cir. 2001). at least in part, in the transcript of the April 8, 2008 telephone The “primary rationale” for dismissal pursuant to Rule 41(b) conference.1 (See id. at 3-4.) Mr. Flaum noted that although is “the failure of plaintiff in his duty to process his case committed to the discretion of the district court, and may be Conn. Dep't of Envtl. Prot.,

, 485 (2d Cir. 1994)). imposed sua sponte. See Link v. Wabash Railroad Co.,

(1962); LeSane,

. Rule 41(b) provides that such a dismissal “operates as an adjudication on B. Analysis the merits” unless the dismissal order states otherwise. See Lyell Theatre,

. Weighing all of the above factors, the Court dismisses this case with prejudice pursuant to Rule 41(b). Dismissal is an extreme and “harsh” remedy only to be imposed in the most “extreme” situations, and the Court must consider the entire record in deciding whether dismissal 1. Duration is appropriate. See Lucas v. Miles,

(2d Cir. 1996); Minnette v. Time Warner,

(2d The first element of the balancing test, the duration of Cir. 1993). However, in appropriate cases, dismissal must be plaintiffs failures, requires that the court consider “(1) available, “not merely to penalize those whose conduct may whether the failures to prosecute were those of the plaintiff; be deemed to warrant such a sanction, but to deter those and (2) whether these failures were of significant duration.” who might be tempted to such conduct in the absence of Martens v. Thomann,

(2d Cir. 2001) (citing such a deterrent.” Nat'l Hockey League v. Metro. Hockey Spencer v. Doe,

(2d Cir. 1998)); see also Club, Inc.,

(1976). While dismissal United States ex rel. Drake, 375 F.3d at 255. The court must based on the actions of a party's attorney may have serious also consider whether any of the delays are attributable to the consequences for the represented party, the Supreme Court defendant. See Jackson v. City of New York,

, 75 has recognized that “[t]here is certainly no merit to the (2d Cir. 1994). contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the Here, while the various failures to follow court orders can be client.” Link,

. attributed to both parties, plaintiff is primarily to blame for the fact that this case has not advanced in more than six months. *3 The Second Circuit has instructed that a district court See Nolan I,

, at *5. This period of delay weighing dismissal of a case pursuant to Rule 41(b) should is particularly significant given that, during that time, the employ a balancing test, considering the following factors: action did not merely lie dormant, but the parties ignored and disobeyed multiple court orders designed to move the case along. The six-month period at issue here thus is of sufficient (1) the duration of the plaintiff's duration to weigh in favor of dismissal. See Lyell Theatre failure to comply with the court Corp.,

(noting that Rule 41 dismissal may order, (2) whether plaintiff was on be warranted “after merely a matter of months”). 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) 2. Notice a balancing of the court's interest in The second element to be considered is whether the plaintiff managing its docket with the plaintiffs was on notice that further delay would result in dismissal of interest in receiving a fair chance to be the case. See Lucas,

(2d Cir. 1996). The Second heard, and (5) whether the judge has Circuit has held that where a court puts a plaintiff on notice adequately considered a sanction less that the court is considering dismissal, and a plaintiff fails to drastic than dismissal. file a document explaining the failures and outlining why the action should not be dismissed, this element has been met. See Shannon, 186 F .3d at 194-95. Lucas,

(2d Cir. 1996); see also United States ex rel. Drake v. Norden Sys., Inc.,

(2d The notice element strongly weighs in favor of dismissal of action would be dismissed in the event of the plaintiffs failure F.2d 458, 462 (2d Cir. 1993) (citing potential for witness to comply with its directives. See Nolan I,

, recollection to diminish or witness unavailability as the at *1-5. In addition, the OSC gave both parties an opportunity reason for a presumption of prejudice due to unreasonable to submit papers and to appear in Court to contest dismissal. delay); Dodson, 957 F.Supp. at 470 (S.D.N.Y. 1997) (holding Plaintiff failed to submit papers in response to the OSC, or to that dismissal was appropriate after a five-year delay because appear on the return date, and failed to follow even one of the the court can presume that witnesses' “memories have faded” directives in Nolan I. Furthermore, the parties had previously when eleven years have passed since the events giving rise been warned that the Court would consider sanctioning the to plaintiffs cause of action). Thus, the Court finds that the parties for failure to comply with Court orders. (See Jan. 2, prejudice factor does not weigh in favor of dismissal. 2008 Order.) Finally, plaintiff himself appeared at the January 30, 2008 conference before the Court, and was informed of the Court's intention to issue the OSC and consider dismissing 4. Balancing the Court's and Plaintiff's Interests the case absent further action. (See Jan. 30, 2008 Tr. at 3-5.) Thus, because it is abundantly clear that the Court gave With respect to the fourth element, the balancing of the court's plaintiff notice of the impending dismissal of the case, the interests and the plaintiff's right to a fair adjudication on second element weighs in favor of dismissal. the merits, the Second Circuit has instructed that “[t]here must be compelling evidence of an extreme effect on court congestion before a litigant's right to be heard is subrogated 3. Prejudice to the convenience of the court.” Lucas,

. As such, the plaintiff's failure to prosecute must be “vexatious *4 The third element requires that the Court consider the and burdensome” on the Court's ability to manage its docket, prejudice of further delay to the defendant. See Lucas, 84 as opposed to being merely “silent and unobtrusive.” LeSane, F.3d at 535 (2d Cir. 1996). Where the delay is unreasonable,

. prejudice may be presumed as a matter of law. Shannon, 186 F.3d at 195 (citing Lyell Theatre,

). This is Plaintiff's right to an opportunity to be heard is not taken generally because “delay by one party increases the likelihood lightly by this Court. However, this action has been pending that evidence in support of the other party's position will be for over a year, and there has been no significant progress lost and that discovery and trial will be made more difficult.” of any kind for six months. During that time, this Court

However, “in cases where delay is more moderate or has issued six separate orders relating to the parties' various excusable, the need to show actual prejudice is proportionally failures, and held three conferences relating to the parties' greater.” Lyell Theatre,

. “Although a court inability to advance the case. While the Court has less cannot deny a plaintiff the right to be heard in the interest knowledge of what transpired prior to this action being of avoiding docket congestion, where a plaintiff could have reassigned to the undersigned on September 4, 2007, the avoided dismissal ‘there can be no claim by plaintiff that [its] parties' ongoing failure to comply with orders of this Court due process rights have been denied.’ “ Jacobs v. County has taken up a grossly disproportionate amount of the Court's of Westchester, No. 99 Civ. 4976(WCC),

, time since October, 2007. Plaintiff's duty to prosecute the case at *6 (S.D.N.Y. Jan. 22, 2008) (quoting Europacific Asset diligently “is designed to achieve ‘fairness to other litigants, Mgmt. Corp. v. Tradescape Corp.,

, 354 whether in the same case or merely in the same court as (S.D.N.Y. 2005) (alteration in original)). competitors for scarce judicial resources....' “ Dodson, 957 F.Supp. at 470 (quoting Chira v. Lockheed Aircraft Corp., 634 Defendants' counsel is to blame for at least some of the F.2d 664, 668 (2d Cir. 1980)). As such, the Court finds that delay in this matter. Because of this, and because only six plaintiff's failures have been “vexatious and burdensome” and months have passed, the Court will not presume prejudice. accordingly, the fourth element weighs in favor of dismissal. While it is demonstrably unreasonable to fail to comply with court orders for six months, the unreasonable delay present in other cases in which courts presumed prejudice is absent 5. Efficacy of Lesser Sanctions here. See Shannon, 186 F.3d at 195 (finding presumption of prejudice because events at issue in lawsuit had taken has adequately considered remedies other than dismissal. “It court's orders. is clear that a district judge should employ the remedy of dismissal ‘only when he is sure of the impotence of lesser As four of the five elements favor dismissal under Rule 41(b), the Court finds that dismissal is appropriate, and this sanctions.’ “ Dodson, 86 F.3d at 39 (citing Chira, 634 F.2d at case is accordingly dismissed with prejudice pursuant to 665). “In deciding on the suitability of lesser sanctions, and Rule 41(b). While the Court is sympathetic to the personal whether the sanctions should be aimed primarily against the issues encountered by plaintiffs counsel over the past few party or the attorney, it can be important for the district court months, as alluded to by Mr. Piccone during the April 8, to assess the relative roles of attorney and client in causing 2008 telephone conference, that fact does not alleviate Mr. the delay....” Id. at 40. “[T]he more the delay was occasioned Piccone's duties to the Court and his client. A simple letter by the lawyer's disregard of his obligation toward his client, to the Court explaining his plight could have resulted in the more this factor argues in favor of a less drastic sanction the extension of deadlines, a short stay of the action, or imposed directly on the lawyer.” Id. However, this Court other relief, including obtaining new counsel for plaintiff. must be guided by the Supreme Court's pronouncement that Mr. Piccone has made no showing that he was unable to “[t]here is certainly no merit to the contention that dismissal of contact the Court during the time that he was preoccupied petitioner's claim because of his counsel's unexcused conduct with personal matters. The Court recognizes that dismissal imposes an unjust penalty on the client. Petitioner voluntarily of this case with prejudice may have the result of denying chose this attorney as his representative in the action, and he plaintiff any relief that he might have obtained on his claims. cannot now avoid the consequences of the acts or omissions However, plaintiff is responsible for his choice of counsel, of this freely selected agent.” Link,

. and did not choose at any point, even after being advised of Mr. Piccone's failures, to replace him as counsel. See Lastra v. Although it is without question that plaintiff's failures in Weil, Gotshal & Manges LLP, No. 03 Civ. 8756(RJH)(RLE), this case are solely attributable to his counsel, Mr. Piccone,

, at *4 (S.D.N.Y. Mar. 8, 2005) (“Claims by plaintiff himself was on notice of Mr. Piccone's shortcomings a litigant that he should be excused from his attorney's actions up to and including his failure to appear on January 30, 2008. because of alleged fraudulent conduct and disobeyance of Nevertheless, as of the April 8, 2008 telephone conference, the litigant's orders may give rise to a claim for malpractice, Mr. Piccone was still the counsel of record in this matter. but does not constitute an extraordinary circumstance or Plaintiff voluntarily chose Mr. Piccone to represent him in excusable neglect.”) this action. Thus, while dismissal is an unfortunate result for plaintiff, it is not an unjust result. See Link,

. As to the consideration of lesser sanctions, this factor clearly III. CONCLUSION weighs in favor of dismissal. As reflected in the record of this case, the Court has given plaintiff numerous opportunities to *6 For the foregoing reasons, this action is DISMISSED be heard in relation to his failure to follow court orders. Prior with prejudice pursuant to Rule 41(b). The Clerk of the Court admonishments and warnings have been wholly ineffective. is respectfully directed to close this case. Indeed, the Court previously issued a civil contempt sanction against Mr. Piccone in the amount of $750.00 in order to SO ORDERED. induce his compliance with future orders. See Nolan I,

at *3. As of the date of this Order, that sanction All Citations has not been paid. Moreover, as noted above, counsel has not complied with any of the directives contained in Nolan Not Reported in F.Supp.2d,

, 70 I. As such, and based on the record in this case, the Court Fed.R.Serv.3d 397 is convinced that lesser sanctions will have no impact on End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

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,

, 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,

(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 10. Thus, if plaintiff were to refile his complaint incorrectly, causing even more delay. His last contact with after dismissal without prejudice, he would be the Court was on July 25, 2018 when he filed his affidavit of beyond the statute of limitations period. However, service. The Court, of its own accord not on application by “[t]hough the 60-day filing requirement is strictly plaintiff, reminded the government of the deadline to file the construed, the statute containing the limitations administrative record in November 2018. Plaintiff's current period is ‘unusually protective of claimants,’ motion is now more than a month late, and the Court has and therefore, equitable tolling is sometimes issued two orders in the intervening time directing him to appropriate.” Hans v. Comm'r of Soc. Sec., No. provide a reason for the delay to no avail. The most recent 16-CV-270 (RRM),

, at *3 order specifically warned plaintiff that failure to respond (E.D.N.Y. Feb. 28, 2019) (quoting Bowen v. City would result in a recommendation of dismissal for failure of New York,

(1986) ). As to prosecute. Furthermore, while the prejudice to defendant such, courts in this District have dismissed Social and the burden on the Court are currently minimal, plaintiff's Security cases without prejudice for failure to delay “lean[s] in the direction of dismissal” even if “only prosecute even if the statute of limitations period slightly.” LeSane v. Hall's Sec. Analyst, Inc.,

, had already passed or would have passed if re- 210 (2d Cir. 2001). filed. In Avila v. Comm'r of Soc. Sec., for example, the court found plaintiff in a Social Security case Finally, dismissal is warranted because no lesser sanction had: (1) untimely filed her complaint, (2) made would be effective to move this case forward given plaintiff's no showing of entitlement to equitable tolling, inaction. See, e.g., Edwards v. Janssen Pharm. Inc., No. 17- and (3) failed to diligently prosecute her case, CV-918 (NSR) (LMS),

, at *2 (S.D.N.Y. but still dismissed the case without prejudice as May 9, 2018) (“no lesser sanction but dismissal” when a lesser sanction. No. 15-CV-2456 (JGK), 2016 counseled plaintiff failed to comply with court's schedule), WL 1562944, at *2–3 (S.D.N.Y. Apr. 18, 2016); adopted by,

(S.D.N.Y. May 31, 2018).1 see also Aldarondo v. Comm'r of Soc. Sec., No. However, dismissal without prejudice “is appropriate in order 12-CV-08529 (CM) (DF),

, at to strike the appropriate balance between the right to due *3 (S.D.N.Y. May 20, 2014) (dismissing Social process and the need to clear the docket and avoid prejudice Security case without prejudice to allow “for the to defendant by retaining open lawsuits with no activity.” possibility that Plaintiff had good cause for failing Amoroso v. Cty. of Suffolk, No. 08-CV-0826 (JFB), 2010 WL to prosecute his case at this time.”). 2985864, at *3 (E.D.N.Y. July 21, 2010) (dismissing without Accordingly, though courts often dismiss with prejudice as a lesser sanction).2 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), 1 While courts remain “especially hesitant to dismiss

, at *6 (S.D.N.Y. Apr. 7, 2014), for procedural deficiencies where ... the failure adopted by,

(S.D.N.Y. June 23, is by a pro se litigant,” plaintiff in this case is 2014) ), the Court is mindful that plaintiff may represented by counsel. Ambrose v. Mestre, No. 12- be able to provide adequate reasons for equitable CV-4349 (PAE) (JLC),

, at *2 tolling should he choose to re-file his complaint. (S.D.N.Y. June 16, 2014), adopted by, 2014 WL For example, plaintiff in this case is represented 5089438 (S.D.N.Y. Sept. 24, 2014). As such, the by counsel who has either deliberately ignored total lack of communication and disregard for court court orders or has otherwise inadvertently allowed orders and procedural requirements is especially this case to lapse. See Torres v. Barnhart, 417 stark. F.3d 276, 279 (2d Cir. 2005) (district court erred 2 The Social Security Act,

(g), in not granting evidentiary hearing on equitable tolling as plaintiff “had every reason to believe that provides a 60-day statutory deadline that Social [his counsel] was sensitive to the timing issue and Security applicants must meet to timely file a would timely file the complaint,” and counsel did civil action in a district court. According to his not do so). case without prejudice for failure to prosecute. for filing objections must be directed to Judge Nathan. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A PROCEDURE FOR FILING OBJECTIONS TO WAIVER OF OBJECTIONS AND WILL PRECLUDE THIS REPORT AND RECOMMENDATION APPELLATE REVIEW.

(b)(1); Fed. R. Civ. P. 72. See Thomas v. Arn,

(1985); Wagner & Pursuant to

(b)(1) and Rule 72(b) of the Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd Federal Rules of Civil Procedure, the parties shall have & Carwile, P.C.,

(2d Cir. 2010). fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk All Citations of Court, with courtesy copies delivered to the chambers of the Honorable Alison J. Nathan and to the chambers of the Not Reported in Fed. Supp.,

undersigned, United States Courthouse, 500 Pearl Street, New End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

1 The Clerk's Office gave Plaintiff pro se assistance Only the Westlaw citation is currently available. information and a copy of Local Rule 5.5 when she United States District Court, W.D. New York. filed this case. Melissa LOMACK, Plaintiff, In compliance with this extension of time, the Commissioner moved for judgment on the pleadings on August 13, 2018. v. ECF No. 14. On November 26, 2018, more than three months COMMISSIONER OF SOCIAL SECURITY, Defendant. beyond the dispositive motion deadline, Plaintiff had not Case # 18-CV-6083-FPG filed anything or otherwise communicated with the Court. | Accordingly, pursuant to Local Rule of Civil Procedure 41(b), Signed 01/08/2019 the Court ordered Plaintiff to show cause in writing by December 28, 2018 why this case should not be dismissed Attorneys and Law Firms for failure to adhere to the dispositive motion deadline. ECF No. 15; see Loc. R. Civ. P. 41(b) (indicating that if a Melissa Lomack, Rochester, NY, pro se. civil case has been pending for more than six months and is not in compliance with the Court's directions, the Court Dennis J. Canning, Francis D. Tankard, Jeremiah D. may order the parties to show cause why the case should Hayes, Office of the General Counsel Social Security not be dismissed). Plaintiff still has not communicated with Administration, Kansas City, MO, Jason Parkerson Peck, the Court. Consequently, this case is DISMISSED WITH Social Security Administration Office of General Counsel, PREJUDICE. New York, NY, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant. DISCUSSION DISMISSAL ORDER Federal Rule of Civil Procedure 41(b) authorizes a district HON. FRANK P. GERACI, JR., Chief Judge court to “dismiss a complaint for failure to comply with a court order, treating the noncompliance as a failure to prosecute.” Simmons v. Abruzzo,

(2d Cir. 1995) INTRODUCTION (citing Link v. Wabash R.R. Co.,

(1962) ). Although it is a harsh remedy, the rule is “intended to serve as *1 On January 29, 2018, pro se Plaintiff Melissa Lomack a rarely employed, but useful, tool of judicial administration filed a Complaint against the Commissioner of Social available to district courts in managing their specific cases Security and an in forma pauperis motion. ECF Nos. 1, 2. and general caseload.” Wynder v. McMahon,

, 79 On January 31, 2018, the Court granted Plaintiff's motion and (2d Cir. 2004). directed the United States Marshal to serve the summons and Complaint upon the Commissioner. ECF No. 3. The United A district court considering a Rule 41(b) dismissal must States Marshal performed service accordingly and, on May weigh five factors: “(1) the duration of the plaintiff's failure 14, 2018, the Commissioner filed the transcript. ECF Nos. 5, to comply with the court order, (2) whether plaintiff was on 7, 8. notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further Pursuant to Local Rule of Civil Procedure 5.5, dispositive delay in the proceedings, (4) a balancing of the court's interest motions from both parties were due by July 13, 2018, in managing its docket with the plaintiff's interest in receiving i.e., within 60 days of the filing of the administrative a fair chance to be heard, and (5) whether the judge has transcript. See Loc. R. Civ. P. 5.5(c).1 On July 10, 2018, adequately considered a sanction less drastic than dismissal.” the Commissioner requested more time to file a dispositive Baptiste v. Sommers,

(2d Cir. 2014). No motion. The Court granted that request and extended the time single factor is generally dispositive. Nita v. Connecticut for both parties to file a dispositive motion to August 13, Dep't of Envtl. Prot.,

, 485 (2d Cir. 1994). 2018. ECF No. 12. The Court sent Plaintiff a copy of its Text the Court's Orders, her dispositive motion was initially due Security context; there are nearly 1,500 Social Security by July 13, 2018—five months ago—and Plaintiff was aware appeals currently pending in this District. This case is almost of this deadline because she received a copy of Local Rule one year old, yet it is not fully briefed or ready for the Court 5.5, which sets forth this briefing schedule, when she filed her to rule on its merits. case. Nonetheless, she did not file a motion. The Court then extended the dispositive motion deadline to August 13, 2018 The Court has given Plaintiff opportunities to be heard and and notified Plaintiff of the extension and sent her another pursue her Social Security appeal, but she has refused to copy of Local Rule 5.5. ECF No. 12. Again, Plaintiff did not prosecute this action and respond to the Court's Orders. file anything. Then, more than three months later, the Court Accordingly, the Court finds that dismissal is appropriate as gave Plaintiff another 30 days to show cause as to why she no lesser sanction would compel Plaintiff to prosecute this had not filed a dispositive motion. ECF No. 15. case. Plaintiff had notice that her failure to comply would result in the dismissal of this case because the Order to Show Cause CONCLUSION explicitly warned her that if she did not respond, her case would be dismissed with prejudice. Id. The Court's Local Because Plaintiff failed to comply with the Court's Orders and Rules also warn that a pro se litigant's failure to comply with has not communicated with the Court to explain or correct the Federal and Local Rules of Civil Procedure “may result the noncompliance despite being warned of the consequences in the dismissal of the case, with prejudice.” Loc. R. Civ. P. of failing to respond, this action is DISMISSED WITH 5.2(i). PREJUDICE and the Clerk of Court is directed to close this case. The Court also finds Plaintiff's inaction prejudicial to the Commissioner. The Commissioner has an interest IT IS SO ORDERED. in the timely resolution of this case, as the Social Security Administration is significantly overburdened with All Citations applications and appeals. Not Reported in Fed. Supp.,

Similarly, although the Court recognizes Plaintiff's interest in receiving a fair chance to be heard, it must also consider End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

order. (ECF No. 11, Status Letter.) Defendant represented Only the Westlaw citation is currently available. that it “attempted to contact pro se plaintiff by telephone ..., United States District Court, E.D. New York. however, there was no answer, and after approximately 10 rings, the call dropped without the opportunity to leave a voice Hashan M. MANNAN, Plaintiff, mail message.” (Id.) v. SOCIAL SECURITY ADMINISTRATION, Defendant. By Order dated March 10, 2020, the Court requested that Defendant inform the Court whether Plaintiff had responded 17-CV-6800 (KAM) to the motion for judgment on the pleadings. By letter dated | March 12, 2020, Defendant stated that Plaintiff had not served Signed 05/11/2020 a response (ECF No. 13), and the docket reflects that Plaintiff neither filed a motion nor opposed Defendant's motion. On Attorneys and Law Firms March 20, 2020, the court issued an Order to Show Cause directing Plaintiff to respond by April 20, 2020. (ECF No. Hashan M. Mannan, Brooklyn, NY, pro se. 15, Order to Show Cause.) The Clerk of Court served the Arthur Swerdloff, United States Attorneys Office, Brooklyn, Order on Plaintiff by mail at his last known address. The NY, Social Security Administration, for Defendant. Order stated that if Plaintiff “fails to show cause, or file an opposition or cross-motion [by April 20, 2020], this action will be dismissed, without prejudice.” (Id. at 6.) The Court has not received a response from Plaintiff. ORDER Kiyo A. Matsumoto, United States District Judge: “Although not explicitly authorized by Rule 41(b) [of the Federal Rules of Civil Procedure], a court may dismiss a *1 On November 16, 2017, Hashan M. Mannan (“Plaintiff”) complaint for failure to prosecute sua sponte.” Zappin v. filed this pro se social security appeal against the Doyle,

, 111-12 (2d Cir. 2019). A court Social Security Administration (“Defendant”). (ECF No. 1, considering whether to dismiss an action for failure to Complaint.) The Court granted Plaintiff's request to proceed prosecute must weigh the following factors: in forma pauperis (ECF No. 2) by Order dated April 26, 2018. Since then, Plaintiff has taken no further action. Plaintiff's case is therefore dismissed, without prejudice, for failure to (1) the duration of the plaintiff's prosecute and comply with Court orders. failure to comply with the court order, (2) whether plaintiff was on Pursuant to a Court Order dated July 26, 2018, on August notice that failure to comply would 23, 2018, Defendant served its motion for judgment on the result in dismissal, (3) whether the pleadings on Plaintiff. (ECF No. 9, Service Letter.) Pursuant defendants are likely to be prejudiced to the briefing schedule set by the Court, Plaintiff was to serve by further delay in the proceedings, (4) his opposition or cross-motion for judgment on the pleadings a balancing of the court's interest in within sixty (60) days of receiving Defendant's motion, which managing its docket with the plaintiff's would have been no later than October 23, 2018. (See ECF interest in receiving a fair chance to be No. 4, Scheduling Order.) Plaintiff did not file, or request an heard, and (5) whether the judge has extension of time to file, his opposition or cross-motion for adequately considered a sanction less judgment on the pleadings. (See ECF No. 13, Letter from drastic than dismissal. No single factor Defendant.) is generally dispositive. On May 30, 2019, the Court entered an order directing the parties to file a joint status letter informing the Court *2

. The factors here favor dismissal of Plaintiff's whether Plaintiff wished to proceed with the action by June complaint. 7, 2019. (ECF Dkt. Order, May 30, 2019.) On June 10, beyond filing his complaint in November 2017, over two receiving a fair chance to be heard, it must also consider the years ago, and he has not respondent to Defendant's motion heavy demands of its docket, especially in the Social Security for judgment on the pleadings, which was served in August context.” Lomack,

, at *2. This action is over 2018. See, e.g., Ortega v. Apfel,

(2d Cir. two years old and Plaintiff has yet to participate in the Court- 2001) (affirming dismissal for failure to prosecute when ordered briefing, or comply with any Court orders. Defendant “[t]he record reveal[ed] that, beyond filing his complaint ..., has moved for judgment on the pleadings, and the motion is [plaintiff] took no action to prosecute his case”). ready for the Court's ruling, albeit without Plaintiff's response. Second, the Court's March 20, 2020 Order to Show Cause why Finally, no lesser sanction will be effective in moving this this action should not be dismissed put Plaintiff on notice that action forward. “Given [P]laintiff's in forma pauperis status, the Court would dismiss this action for failure to prosecute ‘[m]onetary sanctions cannot be relied on because the plaintiff unless Plaintiff responded, filed a cross-motion, or otherwise is indigent.’ ” Zuzick v. Comm'r of Soc. Sec., 2019 WL opposed Defendant's motion. 5086689, at *2 (D. Conn. Oct. 10, 2019) (quoting Bhatia v. Pitney Bowes, Inc.,

, at *1 (D. Conn. Sept. Third, “while the prejudice to defendant and the burden on 14, 2006)). the Court are currently minimal, [P]laintiff's delay ‘lean[s] in the direction of dismissal’ even if ‘only slightly.’ ” Rozell Accordingly, the case is hereby DISMISSED for failure to v. Berryhill,

, at *2 (S.D.N.Y. Mar. 25, prosecute and comply with Court orders. The Court certifies 2019) (quoting LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d pursuant to

(a)(3) that any appeal from 206, 210 (2d Cir. 2001)); see also Lomack v. Comm'r of Soc. this Order would not be taken in good faith and therefore in Sec.,

, at *2 (W.D.N.Y. Jan. 8, 2019) (“The forma pauperis status is denied for the purpose of an appeal. Commissioner has an interest in the timely resolution of this Coppedge v. United States,

(1962). case, as the Social Security Administration is significantly overburdened with applications and appeals.”). Moreover, SO ORDERED. Plaintiff has failed repeatedly to respond to Court orders or otherwise indicate that he intends to prosecute his case. All Citations Not Reported in Fed. Supp.,

End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

childhood, and plaintiff claims that she was disabled due to Only the Westlaw citation is currently available. bipolar disorder. (ECF No. 1, Complaint at 1.) Additionally, United States District Court, E.D. New York. plaintiff alleges that she is disabled due to arthritis in her left knee; in plaintiff's handwritten form Complaint, the Yvette IDLET, Plaintiff, onset date of her arthritis is unclear. (Id.) According to the v. Complaint, the Bureau of Disability Insurance of the Social COMMISSIONER OF SOCIAL SECURITY, Defendant. Security Administration disallowed plaintiff's application on the ground that “plaintiff failed to establish a period of 18-cv-05183(KAM) disability and/or ... plaintiff did not have an impairment or | combination of impairments of the severity prescribed” under Signed 06/19/2020 the Act. (Id. at 1-2.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) and, on January 4, 2017, Attorneys and Law Firms plaintiff appeared and testified before an ALJ. (Id.) By a decision dated May 3, 2017, the ALJ determined that plaintiff Yvette M. Idlet, Brooklyn, NY, pro se. was not disabled within the meaning of the Act and was Arthur Swerdloff, Gail A. Matthews, United States Attorneys thereby not entitled to benefits.1 (Id. at 4.) Office, Brooklyn, NY, Social Security Administration, for Defendant. 1 Plaintiff's Complaint states that her disability application was denied on April 28, 2017, (Compl. at 2), whereas the Notice of Appeals Council MEMORANDUM AND ORDER Action letter states that the ALJ's decision is dated May 3, 2017. ECF No. 24-1, pp. 8-17, comprises MATSUMOTO, United States District Judge: the ALJ's decision, which confirms the correct date *1 Pursuant to

(g), Yvette Idlet (“plaintiff”) is May 3, 2017, though the correction is immaterial commenced this action pro se on September 5, 2018, to appeal here. the final decision of the Commissioner of Social Security Plaintiff appealed the ALJ's decision to the Appeals Council. (“defendant”), which found that plaintiff was not eligible (Id.) On April 16, 2018, the Appeals Council denied plaintiff's for disability insurance benefits and supplemental security request for review of the ALJ's decision, thereby rendering income under Title II and Title XVI of the Social Security the ALJ decision the final decision in the case. (Id.) On Act (“the Act”), on the basis that plaintiff was not disabled September 5, 2018, plaintiff filed the instant action and her within the meaning of the Act. Plaintiff alleges that she is motion for leave to proceed in forma pauperis in federal disabled under the Act and is thus entitled to receive the court. (ECF Nos. 1 and 2.) On September 4, 2018, the court aforementioned benefits. granted plaintiff's motion to proceed in forma pauperis and issued a scheduling order for the case. (ECF No. 4, Order.) Presently before the court is plaintiff's complaint (ECF On December 4, 2018, the Commissioner filed a request No. 1, Complaint Against Commissioner of Social Security for a pre-motion conference, in accordance with the court's (“Complaint”)), defendant's unopposed motion to dismiss individual practices, and in anticipation of filing a motion (ECF No. 23, Notice of Motion to Dismiss) and defendant's to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Memorandum of Law. (ECF No. 26, Memorandum of Law Civil Procedure, on the grounds that the action was not timely in Support of Defendant's Motion to Dismiss (“Def. Mem.”).) filed. (ECF No. 7, Motion for Pre Motion Conference.) On For the reasons stated below, defendant's motion to dismiss is December 4, 2018, the court granted defendant's pre-motion GRANTED and the action is hereby dismissed. conference request. (Dkt. Order dated 2/4/2018.) *2 On December 17, 2018, the parties appeared for a telephonic pre-motion conference, at which plaintiff appeared PROCEDURAL HISTORY pro se. Plaintiff stated that she was seeking representation in this action. The court set a briefing schedule for defendant's fully briefed and uploaded to ECF by May 7, 2019. (Minute and renewed its request to file the defense motion as fully Entry & Order dated 12/17/2018.) On February 15, 2019, the briefed or, alternatively, requested that the court issue an order court granted the Commissioner's request for an extension dismissing the case for plaintiff's failure to prosecute. (ECF of the briefing schedule, to May 27, 2019. (Dkt. Order No. 21, Letter.) On October 8, 2019, the court granted the dated 2/15/2019.) On March 5, 2019, the Commissioner Commissioner's motion for leave to file its motion to dismiss timely served plaintiff with defendant's notice of motion, as unopposed. (Dkt. Order dated 10/8/2019.) memorandum of law in support of defendant's motion to dismiss, and other moving papers. (ECF No. 15, Letter.) On October 9, 2019, the Commissioner filed its motion papers with the court. (ECF Nos 23 and 24.) Due to an Without requesting or obtaining an extension of time to error, defendant uploaded the incorrect brief to ECF, and on serve her opposition to the Commissioner's motion, plaintiff February 27, 2020, defendant uploaded the correct brief.2 failed to serve her opposition in accordance with the court's (ECF No. 26, Def. Mem.) As the court stated in its October briefing schedule. (ECF No. 16, Letter Motion for Leave to 8, 2019 order granting the Commissioner leave to file its File Document.) Accordingly, on June 20, 2019, defendant motion, plaintiff has been afforded significant latitude due requested that the court allow the Commissioner to file his to her pro se status; at this juncture, the court considers the motion as fully briefed, or issue an order directing plaintiff present motion to be fully submitted. to respond to defendant's motion by a date certain. (Id.) Defendant attached a letter dated April 8, 2019 from plaintiff, 2 On October 9, 2019, the government inadvertently in which she noted that “the lawyer that I asked to represent filed with the court an incorrect brief, pertaining to me, cannot represent me in my case, so I would like to another social security appeal. (See ECF No. 24, move forward and pursue this matter with my case on my Brief; Dkt. Order dated 2/26/2020.) After the court own.” (ECF No. 16-1.) ordered defendant to file the correct document, the government uploaded the correct brief on February On June 28, 2019, the court denied without prejudice the 27, 2020. (ECF No. 26, Brief.) Commissioner's motion for leave to file its motion at that time and, instead, granted plaintiff an additional month to serve her opposition on the government, i.e. until July 29, 2019. (Dkt. LEGAL STANDARD Order dated 6/28/2019.) On June 28, 2019, defendant mailed plaintiff the court's June 28, 2019 docket order, extending for a.

(g) one month plaintiff's time to oppose defendant's motion to *3 As set forth in the Notice of Appeals Council Action letter dismiss. (ECF No. 17, Certificate of Service.) On August 29, (“Notice”), which plaintiff included as part of the Complaint, 2019, the Commissioner filed its second motion for leave to unsuccessful claimants for disability benefits under the Act file its motion to dismiss as fully briefed due to plaintiff's may bring an action in federal district court seeking judicial continuing failure to serve her opposition upon defendant. review of the Commissioner's denial of their benefits within (ECF No. 18, Letter Motion for Leave to File Document.) In 60 days of receipt of the Notice; further, the Appeals Council its September 3, 2019 order, the court noted that “plaintiff “assume[s] [claimant] received this letter 5 days after the date has failed to comply with the court's February 15, 2019 and on it” unless plaintiff shows that she did not receive it within June 28, 2019 orders.” (Dkt. Order dated 9/3/2019.) The court the five-day period. (Id. at 4-5); see also Randolph v. Comm'r, granted plaintiff until September 30, 2019 to respond to the

(2d Cir. 2017) (summary order) (date of government's motion, and “advised [plaintiff] that this is her receipt by individual of Appeals Council's notice of denial last opportunity to oppose the government's motion.” (Id.) of a request for review is presumed to be 5 days absent a Further, the court cautioned plaintiff “that the court may reasonable showing to the contrary). dismiss the case for failure to prosecute or comply with court orders pursuant to Federal Rule of Civil Procedure 41 or deem Title

(g) also provides: the government's motion unopposed if she does not serve an opposition on the government.” (Id.) On October 4, 2019, i.e. five months after the initial deadline set by the court, Any individual, after any final decision the Commissioner informed the court that plaintiff again had he was a party, irrespective of the most appropriate legal basis’ for such a motion is ‘because amount in controversy, may obtain a expiration of the statute of limitations presents an affirmative review of such decision by a civil defense.’ ”

(quoting Nghiem v. U.S. Dep't of Veterans action within sixty days after the Affairs,

(S.D.N.Y. 2006)). mailing to him of notice of such decision or within such further time as In deciding the Rule 12(b)(6) motion, a court generally may the Commissioner of Social Security only consider “facts stated in the complaint or documents may allow. attached to the complaint as exhibits or incorporated by reference.” Nechis v. Oxford Health Plans, Inc.,

(2d Cir. 2005). A court should consider the motion “accepting all factual allegations in the complaint and As the United States Supreme Court has held, Section drawing all reasonable inferences in the plaintiff's favor.” 405(g)’s “60-day requirement is not jurisdictional, but rather Erickson v. Pardus,

(2007); Ruotolo v. City constitutes a period of limitations.” Bowen v. City of New of New York,

(2d Cir. 2008) (quoting York,

(1986); see also Sindrewicz v. ATSI Commc'ns, Inc. v Shaar Fund, Ltd.,

, 98 Chater, No. 96-CV-139A(H),

at *1-2 (2d Cir. 2007)). “To survive dismissal, the plaintiff must (W.D.N.Y. Jan. 7, 1997). Further, the 60-day limit is a provide the grounds upon which his claim rests through “condition on the waiver of sovereign immunity and thus factual allegations sufficient ‘to raise a right to relief above must be strictly construed,” absent a showing that equitable the speculative level.” ATSI Commc'ns, Inc.,

, 98 tolling is warranted. Bowen,

. The 60- (2d Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 day statute of limitations period provided by Congress in U.S. 544, 545 (2007)). § 205(g) of the Act serves “to move millions of cases to speedy resolution in a bureaucracy that processes millions of cases annually.” Bowen,

; Wong v. Bowen, c. Failure to Prosecute and Comply with Court Orders

(2d Cir. 1988). The Supreme Court has under Rule 41(b) noted that “an interpretation [of § 205(g) ] that would allow a *4 Although not explicitly authorized by Rule 41(b) of the claimant judicial review simply by filing and being denied a Federal Rules of Civil Procedure (“Rule 41(b)”), the Second petition to reopen his claim would frustrate the congressional Circuit recognizes the district court's “inherent power” to purpose ... to impose a 60-day limitation upon judicial review dismiss a complaint for failure to prosecute sua sponte. of the Secretary's final decision on the initial claim for Zappin v. Doyle,

, 111-12 (2d Cir. 2019) benefits.” Califano v. Sanders,

(1977). (citing Lewis v. Rawson,

(2d Cir. 2009)). Additionally, Section 205(g), codified at

(g), Similarly, a court has authority to dismiss an action for failure provides a plaintiff's exclusive remedy. As set forth in Title to comply with the Federal Rules of Civil Procedure or a

(h), “No findings of fact or decision of the court order. Fed. R. Civ. P. 41(b); Lamont v. Edwards, 690 F. Commissioner of Social Security shall be reviewed by any App'x 61, 62 (2d Cir. 2017) (by summary order). Dismissals person, tribunal, or governmental agency except as herein pursuant to Rule 41(b) are with prejudice, unless the dismissal provided.”

(h). order states otherwise. Fed. R. Civ. P. 41(b). Under the relevant test, the district court weighs five factors b. Statute of Limitations Defense Is Properly Raised when assessing whether to dismiss for failure to comply by Rule 12(b)(6) Motion with court orders: (1) the duration of the plaintiff's failure When a complaint is time-barred, it is properly dismissed to comply with the court order, (2) whether plaintiff was on under Rule 12(b)(6). See Pressley v. Astrue, No. 12-cv-8461, notice that failure to comply would result in dismissal, (3)

, at *2-3 (S.D.N.Y. Aug. 2, 2013). A whether the defendants are likely to be prejudiced by further motion to dismiss on statute of limitations grounds “generally delay in the proceedings, (4) a balancing of the court's interest is treated as a motion to dismiss for failure to state a claim in managing its docket with the plaintiff's interest in receiving upon which relief can be granted pursuant to Rule 12(b)(6), a fair chance to be heard, and (5) whether the judge has as opposed to under Rule 12(b)(1).” Courtney v. Colvin, No. adequately considered a sanction less drastic than dismissal. 13-CV-2884 (AJN)(JLC),

, at *2 (S.D.N.Y. 482, 485 (2d Cir. 1994). pursuing his rights diligently’ and that ‘some extraordinary circumstance stood in his way,’ ” a court may permit equitable tolling and, thus, deem filings timely. See Torres v. Barnhart,

(2d Cir. 2005) (quoting Pace v. DISCUSSION DiGuglielmo,

(2005)). Equitable tolling a. Plaintiff's Complaint Is Untimely is only appropriate “in rare and exceptional circumstances ... Plaintiff seeks review of the ALJ's final decision denying in which a party is prevented in some extraordinary way her disability insurance benefits and supplemental security from exercising his rights.” Zerilli-Edelglass v. N.Y.C. Transit income pursuant to the exclusive avenue provided in section Auth.,

(2d Cir. 2003) (citations and quotation 205(g) of the Act, codified at

(g). Plaintiff's marks omitted); Canales v. Sullivan,

(2d Cir. complaint, however, was untimely filed. As noted previously, 1991) (equitably tolling the 60-day period because plaintiff the 60-day limitations period begins to run five days after had averred that her mental impairment caused incapacity the date set forth in the Appeals Council notice. 20 C.F.R. during that period). §§ 416.1401, 422.210(c). Here, the Notice is dated April 16, 2018. (ECF No. 1, Complaint.) Accordingly, the deadline Here, plaintiff has not averred that the 60-day period should for plaintiff to have commenced a civil action in this court be equitably tolled due to, for example, a mental impairment was June 20, 2018.3 Without proffering any reasons why resulting in incapacity, or any other rare and exceptional circumstances. Plaintiff has not provided any explanation for her complaint should be considered timely, plaintiff did not filing an untimely complaint, nor did she ask the Appeals commence this action until September 5, 2018, 77 days after Council or this court for an extension to file. Additionally, the statute of limitations had passed. (Id.) plaintiff has failed to comply with the court's scheduling orders and extensions, and failed to respond and file an 3 60 days after April 16, 2016, plus five days for opposition to defendant's motion, despite being granted mailing. several opportunities to do so. Therefore, the court finds that Many courts in this circuit have dismissed social security equitable tolling is not appropriate. appeals where plaintiff filed the action after the statute of limitations had passed, including after shorter delays than c. Failure to Prosecute and Comply with Court Orders the delay that occurred here. See, e.g., Colvin, 2013 WL The court also finds that the action is properly dismissed due 5652476, at *3 (pro se plaintiff filed a complaint seven days to plaintiff's ongoing failure to prosecute and comply with late); Pressley v. Astrue, No. 12-CV-8461 (NSR) (PED), 2013 court orders. WL 3974094, at *5 (S.D.N.Y. Aug. 2, 2013) (dismissing complaint that was filed five days late); Rodriguez ex rel. JJT As noted above, plaintiff failed to serve her opposition v. Astrue, No. 10-CV-9644 (PAC) (JLC),

, on the government by May 6, 2019, in accordance with at *1 (S.D.N.Y. Jan. 31, 2012) (dismissing pro se complaint the court's briefing schedule. (Dkt. Order dated 2/15/2019.) pursuant to Rule 12(b)(6) motion where plaintiff filed the Nonetheless, the court granted plaintiff an additional month complaint 81 days late); Smith v. Comm'r of Soc. Sec., No. 08- to serve her opposition on the government. (Dkt. Order CV-1547 (NGG),

at *1 (E.D.N.Y. Dec. 23, dated 6/28/2019.) On August 29, 2019, the court learned 2010) (dismissing pro se complaint where plaintiff filed the by way of the government's letter, that plaintiff had again complaint four days late); Johnson v. Comm'r of Soc. Sec., 519 failed to serve her opposition upon defendant. (ECF No. F. Supp. 2d 448, 448-49 (S.D.N.Y. 2007) (dismissing pro se 18.) By order dated September 3, 2019, the court noted complaint where plaintiff filed the complaint nine days late). that “plaintiff has failed to comply with the court's February Consequently, absent equitable tolling, plaintiff's complaint 15, 2019 and June 28, 2019 orders.” (Dkt. Order dated must be dismissed as barred by the statute of limitations as set 9/3/2019.) The court granted plaintiff approximately one forth in

(g). more month to respond to the government's motion, and further “advised [plaintiff] that this is her last opportunity b. Equitable Tolling Does Not Apply to The Complaint to oppose the government's motion.” (Id.). The court also cautioned plaintiff that “the court may dismiss the case for receiving a clear warning and a third extension of her time of dismissal. to respond to the government's motion, the court once again learned, on October 4, 2019, that plaintiff had failed to serve Fifth, the court has considered imposing a lesser sanction her opposition upon the government. (ECF No. 21.) Further or granting plaintiff a further extension, but rejects those compounding plaintiff's continued failure to comply with the options because the court has already provided plaintiff ample court's orders, plaintiff has neither requested an extension of time and opportunities to oppose the government's motion, time to file her opposition nor submitted any correspondence and plaintiff has not availed herself of those opportunities. to the court. Further, plaintiff has received, and apparently disregarded, the court's warning regarding her failure to prosecute. Moreover, The court applies the five-factor test set forth in Zappin to under the in forma pauperis statute, the court “shall dismiss the facts of this case and finds that, on balance, the case the case at any time if the court determines that ... the action of is properly dismissed for plaintiff's failure to prosecute and appeal ... fails to state a claim on which relief may be granted.”

(e)(2)(B)(ii). Because the court finds that the respond to court orders. Zappin, 756 F. App'x at 112. First, the court's review of the ALJ's final decision is time-barred under duration of plaintiff's failure to comply with the court's orders

(g) of the Act, and the action is not subject and failure to prosecute has been significant and weighs in to equitable tolling, plaintiff has failed to state a claim upon favor of dismissal. Lyell Theatre Corp. v. Loews Corp., 682 which relief may be granted. Accordingly, no lesser sanction F.2d 37, 42-43 (2d Cir. 1982) (delays of a matter of months than dismissal of this action, which was brought in forma or years may warrant dismissal). pauperis, is appropriate in this case. *6 Since the court set a briefing schedule on February 15, 2019, plaintiff has failed to abide by the filing deadlines. Well For the aforementioned reasons, the court finds that the five- over a year has elapsed since plaintiff's last correspondence factor test strongly weighs in favor of dismissal pursuant to with the court. Moreover, during that period, plaintiff failed Rule 41(b) and, thus, the court also dismisses the action on to request enlargements of the time to file her opposition this ground. or explain why she was in violation of the court's orders. Even after the court cautioned plaintiff that the case might be dismissed for plaintiff's failure to prosecute or comply CONCLUSION with court orders, plaintiff remained conspicuously dormant in the litigation. Plaintiff's inaction, since at least February For the foregoing reasons, the court GRANTS defendant's 15, 2019, has left the court with no choice but to reasonably motion to dismiss the complaint as untimely pursuant to Rule conclude that plaintiff has abandoned any efforts to prosecute 12(b)(6). The court also dismisses this action pursuant to the action. Thus, the first factor weighs in favor of dismissal Rule 41(b) due to plaintiff's failure to prosecute and failure pursuant to Rule 41(b). to comply with court orders. The court certifies pursuant to

(a)(3) that any appeal would not be Second, as noted above, plaintiff was on notice that failure to taken in good faith and, therefore, in forma pauperis status comply with the court's orders and failure to prosecute would is denied for the purpose of any appeal. Coppedge v. United likely result in dismissal. Thus, the second factor also weighs States,

(1962). The Clerk of Court is in favor of dismissal. respectfully directed to enter judgment for the defendant and close this case. Defendant is respectfully directed to mail a Third, though “[p]rejudice to defendants resulting from copy of this Memorandum and Order and the judgment to the unreasonable delay may be presumed,” Lyell Theatre Corp., pro se plaintiff and note service on the docket within three (3)

, the government has not alleged prejudice to business days of this Memorandum and Order. Commissioner should further delays ensue. Thus, this factor does not weigh in favor of dismissal. SO ORDERED. Fourth, plaintiff's delay has not impacted the trial calendar, All Citations but has unnecessarily burdened the court's work, by requiring End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

make several required appearances in this case. On October Only the Westlaw citation is currently available. 15, 1993, plaintiff failed to appear for her deposition. On United States District Court, S.D. New York. October 30, 1995, plaintiff again failed to appear to be deposed. Constance SMITH, Plaintiff, v. More recently, plaintiff has failed to appear for pre-trial HUMAN RESOURCES ADMINISTRATION OF conferences. She failed to appear at a conference scheduled NEW YORK CITY; Daryl George, Provisional for January 8, 1999. She called on the day of the conference to inform the court that she would not appear because the Supervisor I, Human Resources Administration, cold weather aggravated her poor health. Plaintiff failed to Child Welfare Agency, Division of Adoption and appear at the rescheduled conference on June 25, 1999, again Foster Care; Robert Martin, Brooklyn Acting calling on the day of the conference to inform the court that Borough Director, Human Resources Administration, she would not appear because the hot weather aggravated her Child Welfare Agency, Division of Adoption and poor health. Foster Care; Joseph Generett, Director Recruitment, Selection and Placement Division HRA Doss Office Plaintiff was directed to appear at the final pre-trial of Personnel Administration; Michael Schady, conference in this case by court order dated March 9, 2000. Director, ASA, Personnel Management, Defendants. The order, sent to her by both certified and regular mail, explained the importance of the final pre-trial conference to No. 91 CIV. 2295(MGC). the continuation of plaintiff's case. The order reads as follows: | March 24, 2000. Plaintiff has failed to appear at either Attorneys and Law Firms of the pre-trial conferences that she Michael D. Hess, Corporation Counsel of the City of New was directed to attend in 1999. A final York, New York, By K. Lesli Ligorner, Esq., Assistant pre-trial conference is now scheduled Corporation Counsel, for Defendants. for March 23, 2000 at 3:30 p.m. in Courtroom 14–A of the United States Courthouse, 500 Pearl Street, New York, New York, 10007. The OPINION parties are directed to appear at that CEDARBAUM, J. time. If plaintiff again fails to appear at this final pre-trial conference, this *1 In 1991, plaintiff Constance Smith brought suit against action will be dismissed for failure to defendants alleging that defendants had discriminated against prosecute. her on the basis of her race, age, and region of origin, the Bronx, New York. Plaintiff amended her complaint in 1994 to allege that defendants retaliated against her by not hiring her (Order dated March 9, 2000.) after she was terminated in 1992. As set forth below, plaintiff has failed to appear for depositions, pre-trial conferences, Plaintiff called on the morning of the conference to inform and the final pre-trial conference. Defendants have moved the court that she had been admitted to the hospital through to dismiss the complaint for failure to prosecute pursuant to the emergency room because of high blood pressure and Fed.R.Civ.P. 41(b). For the following reasons, the motion is dizziness. She told the court that she did not know when granted. she would be released. Two hours before the conference was scheduled to begin, plaintiff again called to advise the court that although she had been released from the hospital, she THE FACTS would not attend the conference because of “traffic.” Every counsel for the defendants that she would not appear, and has (S.D.N.Y. 1990) (19 months of inactivity). telephoned the court so close to the time of the conference that it was too late for the court to do so. On each such occasion, Second, plaintiff was warned that her failure to appear on defendants' counsel has made a fruitless appearance. March 23, 2000 would result in the dismissal of her case. (Order dated March 9, 2000.) Nevertheless, plaintiff did *2 Plaintiff has also not responded to defendants' motions not appear on March 23, 2000. This motion to dismiss in this case. She never responded to defendants' April 12, for failure to prosecute also provided plaintiff with notice 1996 letter motion to dismiss her

claim that any further delay would result in the dismissal of her and to preclude plaintiff from introducing particular evidence case. See, e.g., Stoenescu v. Jablonsky,

, 271 at trial. Plaintiff's only response to this motion to dismiss (S.D.N.Y. 1995). Plaintiff's only response to this motion was for failure to prosecute was a letter dated August 23, 1999 a letter dated August 23, 1999, almost two weeks after in which she apologized for missing the June 25, 1999 the August 6, 1999 deadline for her response and only conference and asked the court not to dismiss her case after a letter from the defendants requested that the motion because due to a heart condition she is unable to attend court be considered unopposed. That response restated plaintiff's proceedings when the weather is either too hot or too cold. excuse for missing the June 25, 1999 conference, the hot weather, and asked that the case not be dismissed in light of plaintiff's health problems. DISCUSSION *3 Third, “[p]rejudice to defendants resulting from Fed.R.Civ.P. 41(b) provides, in pertinent part, “[f]or failure unreasonable delay may be presumed.” Lyell Theatre, 682 of the plaintiff to prosecute ... a defendant may move for F.2d at 43. Plaintiff has delayed the prosecution of this case dismissal of an action or of any claim against the defendant.” for at least four years. This substantial delay is evidence of It is the plaintiff's duty to “process [her] case diligently.” Lyell prejudice to the defendants. Lukensow v. Harley Cars of New Theatre Corp. v. Loews Corp.,

(2d Cir. 1982). York,

(S.D.N.Y. 1989) (holding that a two This duty of diligence is imposed upon the plaintiff because of year delay in prosecution was evidence of prejudice). the strong policy in favor of the efficient disposition of cases.

Over the past nine years, plaintiff has repeatedly failed to Fourth, granting this motion does not violate plaintiff's due perform her duty to move this case forward. process rights when the case is dismissed in part to ensure the efficient administration of justice. Dismissal does not deprive Several factors must be considered in determining the the plaintiff of her right to a fair opportunity to be heard. She propriety of dismissing an action for failure to prosecute. has had nine years to prosecute her claim and avoid this result. These factors include “the duration of plaintiff's failures,” See Lukensow,

(holding that there could be “whether plaintiff ha[s] received notice that further delays no claim that plaintiffs' due process rights were denied by would result in dismissal,” and “whether defendant[s][are] dismissal following a complete lack of activity for two years). likely to be prejudiced by further delay.” Peart v. City of New York,

(2d Cir. 1993) (quoting Romandette In fairness to other litigants in this district who seek access v. Weetabix Co.,

(2d Cir. 1986)). The to the court, the calendar must be free from unnecessary court must also balance “the need to alleviate court calendar congestion. As the Second Circuit has explained, “the congestion and [plaintiff's] right to due process.”

Finally, authority to invoke [dismissal] for failure to prosecute is the court must “assess[ ] the efficacy of lesser sanctions.”

vital to the efficient administration of judicial affairs and provides meaningful access for other prospective litigants to All of these factors weigh in favor of dismissing this action overcrowded courts.” Lyell Theatre,

. Plaintiff's for failure to prosecute. First, plaintiff's delay in pursuing repeated last minute cancellations of scheduled appearances this action has been lengthy. Plaintiff has taken no action to have wasted the time of counsel for defendants and the court. prosecute this case since attending a pre-trial conference four years ago. Much shorter delays have been held to warrant Finally, lesser sanctions are not appropriate in this case. Court dismissal for failure to prosecute. See Chira v. Lockheed orders and direction have not prompted plaintiff to move her Aircraft Corp.,

, 666–67 (2d Cir. 1980) (6 months case forward. Plaintiff was ordered by Magistrate Judge Peck attend. She was informed by letter that this court directed her action, plaintiff did not take advantage of the opportunity. to appear for a conference in January of 1999 and again in June of 1999. Plaintiff did not appear at either conference. Finally, she was ordered to appear on March 23, 2000 or CONCLUSION have her claims dismissed. Plaintiff did not appear. Moreover, plaintiff is proceeding in forma pauperis, rendering monetary For the foregoing reasons, defendants' motion to dismiss sanctions inappropriate. this case for failure to prosecute is granted. This action is dismissed with prejudice. While I am not unsympathetic to plaintiff's health problems, there comes a time when fairness to the defendants requires SO ORDERED. that the action move forward. Plaintiff's history of missed appearances, the lengthy period of inactivity in this case, All Citations and her failure to respond to two defense motions warrant dismissal for failure to prosecute. Plaintiff seems to have lost Not Reported in F.Supp.2d,

interest in pursuing this case. When given a clear last chance End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.