Opinion
1:20-cv-03888 (LTS) (SDA)
03-29-2021
Anthony Ashley, Plaintiff, v. City of New York et al., Defendants.
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE:
For the reasons set forth below, I respectfully recommend that this action be DISMISSED WITHOUT PREJUDICE for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b).
PROCEDURAL HISTORY
On May 15, 2020, this action was severed from Syville v. City of New York et al., 20-cv-00571. (5/15/2020 Order, ECF No. 1; Compl., ECF No. 3.) The same day, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis. (Order, ECF No. 7.) On June 18, 2020, the Court entered an Order of Service. (Am. Order of Service, ECF No. 10.) On October 30, 2020, the Court scheduled a telephone conference for January 5, 2021 to discuss the status of the case. (Order, ECF No. 31.) This Order was mailed to Plaintiff at the address indicated on the docket. (See 11/2/2020 docket text entry.) Plaintiff failed to appear for the conference. (See 1/5/2021 Order, ECF No. 43.) During the conference, counsel for Defendant City of New York represented that she had tried to contact Plaintiff through the telephone No. listed on the docket and via the email address listed in his Declaration (see ECF No. 6), but received no response. (Id. at 1.)
The Court scheduled another telephone conference for March 5, 2021. (Id.) In the January 5, 2021 Order, the Court reminded Plaintiff that it was his responsibility to comply with Court Orders and diligently prosecute his case and that if he failed to appear for the March 5, 2021 conference, the Court would recommend that his case be dismissed without prejudice for failure to prosecute in accordance with Federal Rule of Civil Procedure 41(b). (Id. at 2.) The January 5, 2021 Order was mailed to Plaintiff at the address indicated on the docket. (See 1/6/2021 docket text entry.) Plaintiff failed to appear for the March 5, 2021 conference. During the conference, counsel for Defendant Project Renewal called Plaintiff at the telephone No. listed on the docket and left a voice message. Following the conference, the Court ordered the City to file a letter by March 12, 2021 indicating whether it had any updated information regarding Plaintiff's address. (3/5/21 Order, ECF No. 52.)
On March 11, 2021, the City filed a letter providing an updated address for Plaintiff. (Letter, ECF No. 53.) Accordingly, the Court scheduled another telephone conference for March 23, 2021. (Order, ECF No. 54.) The Court again warned Plaintiff that failure to appear for the conference would result in a recommendation that his case be dismissed without prejudice for failure to prosecute. (Id. at 1.) A copy of the Order was mailed to Plaintiff at his updated address. (See 3/12/2021 docket text entry.) In addition, a member of my Chambers staff spoke to Plaintiff via telephone on March 22, 2021 and provided him with the relevant information regarding the scheduled conference. Despite these efforts, Plaintiff failed to appear for the March 23, 2021 conference.
LEGAL STANDARDS
Federal Rule of Civil Procedure 41(b) states that a defendant may move to dismiss an action or any claim against it “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order.” Fed.R.Civ.P. 41(b). However, the United States Supreme Court has determined that the language of Rule 41 does not restrict the Court's power to act on its own and dismiss an action absent a motion. See Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962); see also Harding v. Goode, 135 Fed.Appx. 488, 488 (2d Cir. 2005) (“Although not explicitly authorized by Rule 41(b), a court may dismiss a claim for failure to prosecute sua sponte.”) (citation omitted); White v. Westchester Cty., No. 19-CV-03604 (KMK), 2020 WL 7323422, at *1 (S.D.N.Y. Dec. 11, 2020) (“it has long been recognized that a district court has the inherent authority to dismiss for failure to prosecute sua sponte.”) (citation omitted). Unless the dismissal order states otherwise, a dismissal under Rule 41(b) “operates as an adjudication on the merits.” Link, 370 U.S. at 630.
While “[d]istrict courts have discretion to effect dismissal pursuant to Rule 41(b)[, ]” Virola v. Entire GRVC Dep't of Mental Health Hygiene Servs., No. 12-CV-01005 (ER), 2014 WL 793082, at *2 (S.D.N.Y. Feb. 21, 2014) (citing cases), “[t]he Second Circuit has cautioned . . . that [such discretion] should be exercised sparingly and only when the district judge is ‘sure of the impotence of lesser sanctions.'” Id. (quoting Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980)); see also Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009). In considering whether to dismiss a case under Rule 41, courts consider five factors: (1) the duration of plaintiff's failure to comply with court orders; (2) notice to plaintiff that failure to comply would result in dismissal; (3) possible prejudice to defendants from further delay; (4) the balance between the interest of managing the court's docket and the plaintiff's right to be heard; and (5) consideration of lesser sanctions. See Shannon v. Gen. Elec. Co., 186 F.3d 186, 193-94 (2d Cir. 1999). None of these factors is independently dispositive, and the Court reviews the dismissal in light of the record as a whole. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004).
DISCUSSION
Viewing the record as a whole, the Court finds that dismissal without prejudice is appropriate. As to the first factor, Plaintiff has not initiated contact with the Court since this action was severed on May 15, 2020. The Second Circuit has held that failure to prosecute for a “matter of months” may be sufficient to warrant dismissal, see Yadav v. Brookhaven Nat'l Lab., 487 Fed.Appx. 671, 673 (2d Cir. 2012), and courts in this district consistently find that dismissal is justified based on shorter periods than this one. See, e.g., Seth v. City of New York, No. 19-CV-01960 (AJN) (SDA), 2019 WL 7493587, at *3 (S.D.N.Y. Dec. 9, 2019), report and recommendation adopted, 2020 WL 71021 (S.D.N.Y. Jan. 6, 2020) (dismissal warranted based on four months of silence); Chavis v. City of New York, 17-CV-09518, 2018 WL 6532865, at *3 (S.D.N.Y. Oct. 12, 2018) (four-month delay weighed in favor of dismissal), report and recommendation adopted, 2018 WL 6528238 (S.D.N.Y. Dec. 11, 2018).
Regarding the second factor, the Court gave Plaintiff notice that the Court would recommend dismissal. In the January 5, 2020 Order, the Court explicitly warned Plaintiff that failure to appear for the March 5, 2021 conference would result in a recommendation of dismissal. (1/5/2021 Order at 2.) Despite this warning, the Court made further efforts to contact Plaintiff and gave him another chance to appear on March 23, 2021. However, Plaintiff neither appeared for the conference or otherwise contacted the Court. The Court finds that the third factor also favors Defendants, several of which have filed motions to dismiss that have not been responded to, and which have appeared for multiple conferences before the Court.
The fourth factor favors dismissal because Plaintiff has had multiple opportunities to be heard by the Court, but has not appeared for scheduled conferences or otherwise communicated with the Court in any way. See Cayetano v. City of New York, No. 13-CV-01861 (LAK) (JLC), 2013 WL 6097567, at *2 (S.D.N.Y. Nov. 20, 2013), report and recommendation adopted, 2015 WL 5514324 (S.D.N.Y. Sept. 17, 2015) (citing Hibbert v. Apfel, No. 99-CV-04246 (SAS), 2000 WL 977683, at *3 (S.D.N.Y. July 17, 2000) (“It is not the function of this Court to chase dilatory plaintiffs while other litigants in this district seek access to the courts.”)). However, “because Plaintiff's delay has not impacted the trial calendar, ” the Court finds that this factor supports dismissal without prejudice, as opposed to adjudication on the merits. Virola, 2014 WL 793082, at *3 (citing Thrall v. Cent. New York Reg'l Transp. Auth., 399 Fed.Appx. 663, 666 (2d Cir. 2010)).
Finally, the Court finds that the fifth factor weighs in favor of dismissal, rather than lesser sanctions, because the case cannot proceed without Plaintiff's participation. However, due to Plaintiff's pro se status, ” the Court recommends that Plaintiff's claims be dismissed without prejudice. See Virola, 2014 WL 793082, at *3 (citing Lyell Theatre Corp., 682 F.2d at 43 (when imposed, the sanction of dismissal under Rule 41(b) “operates as an adjudication upon the merits, but may be without prejudice if so specified by the court imposing it” (citation and quotation marks omitted)); Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (Rule 41(b) dismissal with prejudice to be used with caution because “pro se plaintiffs should be granted special leniency regarding procedural matters”)).
CONCLUSION
For these reasons, I respectfully recommend that this action be DISMISSED WITHOUT PREJUDICE. The Clerk of Court is respectfully requested to mail a copy of this Report and Recommendation to the pro se Plaintiff.
SO ORDERED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Swain.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).