Opinion
No. 00 Civ. 8483 (GEL) (RLE).
January 4, 2006
REPORT AND RECOMMENDATION
On November 6, 2000, plaintiffs brought this action against numerous law enforcement officials and civilian defendants alleging various civil rights violations and torts under New York State law. The case was referred to the undersigned for general trial supervision on March 15, 2001.
In May 2003, numerous parties settled, and the case proceeded against two civilian defendants. On September 15, 2004, defendant Gerard Andrew Ruth ("Ruth") moved for summary judgment, and for dismissal of plaintiffs' state law claims for lack of jurisdiction. In a Report and Recommendation dated August 20, 2004, I recommended that the Court grant Ruth's motion. On September 15, 2004, Judge Lynch adopted the Report and Recommendation, and directed that the case remain referred to the undersigned to clarify the status of plaintiffs' claims against defendant C. Scott Smith ("Smith").
Following the issuance of the September 15, 2004 order, the Court received a letter from Smith requesting that the determinations in the Report and Recommendation be applied to him. Treating Smith's letter as a motion for summary judgment, the motion was referred to the undersigned for further proceedings. On March 17, 2005, the Court ordered Smith to submit a memorandum in support of his motion. Smith's memorandum was received on April 25, 2005. On September 12, 2005, the Court ordered plaintiffs to file a response to the motion. Plaintiffs' response was received in the Pro Se Office on October 3, 2005, but rejected because it was improper as to form. Since plaintiffs response cannot be located, the Court ordered plaintiffs to re-file their response in proper form by November 18, 2005. The Court advised plaintiffs that failure to respond could result in judgment against them. On November 21, 2005, the Court received an empty envelope without a responsive document. Since plaintiffs did not submit a responsive document, the Court ordered that plaintiffs submit a response in proper form by December 1, 2005, and reminded plaintiffs that failure to respond could result in judgment against them. Plaintiffs failed to respond. On December 9, 2005, the Court ordered that by December 23, 2005, plaintiffs show cause why judgment should not be entered against them for failure to respond by the December 1, 2005 deadline. Plaintiffs failed to respond. Since plaintiffs failed to respond to the Court's order to show cause and to Smith's motion, I recommend that the Court dismiss the case against Smith for failure to prosecute.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Gerard E. Lynch, 40 Centre Street, Room 803, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).