Opinion
15 Civ. 8427 (PAC)(HBP)
08-05-2019
ANNE BRYANT, Plaintiff, v. NOEL L. SILVERMAN, et al., Defendants.
REPORT AND RECOMMENDATION
:
TO THE HONORABLE PAUL A. CROTTY, United States District Judge,
I. Introduction
By notice of motion dated November 12, 2018, defendant Patrick J. Monaghan, Jr., Esq. seeks an Order pursuant to Fed.R.Civ.P. 41(b) dismissing this action for failure to prosecute (Notice of Mot., dated Nov. 12, 2018 (Docket Item ("D.I.") 185, 191)).
Defendant's motion to dismiss for failure to prosecute and the accompanying memorandum of law and declaration are docketed twice.
For the reasons set forth below, I respectfully recommend that defendant's motion be denied. II. Background
The factual background of this action is set forth in detail in my previous Reports and Recommendations. See Bryant v. Monaghan, 15 Civ. 8427 (PAC)(HBP), 2018 WL 4932086 at *1-*3 (S.D.N.Y. Aug. 1, 2018) (Pitman, M.J.) (Report & Recommendation), adopted at, 2018 WL 4357478 (S.D.N.Y. Sept. 12, 2018) (Crotty, D.J.); Bryant v. Monaghan, 15 Civ. 8427 (PAC)(HBP), 2016 WL 11272143 at *1-*3 (S.D.N.Y. Dec. 16, 2016) (Pitman, M.J.) (Report & Recommendation), adopted at, 2017 WL 887043 (S.D.N.Y. Mar. 6, 2017 (Crotty, D.J.). The reader's familiarity with these Reports and Recommendations is assumed. I recite here only the additional facts and procedural history pertinent to the pending motion.
This action arises out of defendant's representation of plaintiff in litigation dating back to the early 1990s. Plaintiff alleges that defendant committed malpractice by simultaneously representing plaintiff and an adverse party and by failing to file allegedly essential documents.
On September 12, 2018, the Honorable Paul A. Crotty, United States District Judge, denied the parties' cross-motions for summary judgment (Opinion & Order, dated Sept. 12, 2017 (D.I. 170)). Defendant subsequently asked the court "to direct the plaintiff to prepare her proposed Pre-Trial Order submission listing her proposed exhibits and witnesses" (Letter, dated Sept. 20, 2018 (D.I. 171)). Plaintiff responded to defendant's letter by explaining that she was unable to "'prepare her proposed Pre-Trial submission listing her proposed exhibits and witnesses'" because she "lack[ed] evidence to build a case for trial, to question witnesses, to substantiate the relevance of exhibits filed with [her] [a]mended [c]omplaint and other filed [p]leadings, and to impeach [d]efendant's witnesses, as necessary" (Proposal, dated Oct. 5, 2018 (D.I. 172) at 1-2). Plaintiff further stated that she "will not proceed to Trial" because she "cannot receive a fair Trial on the merits," and she proposed instead to voluntarily dismiss the action pursuant to Fed.R.Civ.P. 41(a)(1)(A) if defendant agreed to produce certain documents (Proposal, dated Oct. 5, 2018 (D.I. 172) at 5-6 (emphasis in original)). After some negotiation, the parties were unable to reach an agreement with respect to the terms of plaintiff's voluntary dismissal. Defendant then filed the current motion approximately six weeks after the parties' last correspondence.
III. Analysis
A. Applicable Legal Standards
Fed.R.Civ.P. 41(b) provides that
If 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 claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this
rule -- except one for lack of jurisdiction, improper venue, or for failure to join a party under Rule 19 -- operates as an adjudication on the merits."The 'primary rationale' for dismissal pursuant to Rule 41(b) is 'the failure of plaintiff in his duty to process his case diligently.'" Nolan v. Primagency, Inc., 07 Civ. 134 (RJS), 2008 WL 1758644 at *2 (S.D.N.Y. Apr. 16, 2008) (Sullivan, then D.J., now Cir. J.), aff'd, 344 F. App'x 693 (2d Cir. 2009), quoting Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982).
The Second Circuit has observed "that a Rule 41(b) dismissal is a 'harsh remedy [that] is appropriate only in extreme situations,'" Sorokin v. N.Y. Cnty. Dist. Atty.'s Office, 535 F. App'x 3, 5 (2d Cir. 2013), quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). Dismissal pursuant to Rule 41(b) must "'be proceeded by particular procedural prerequisites,' including 'notice of the sanctionable conduct, the standard by which it will be assessed, and an opportunity to be heard.'" Baptiste v. Sommers, 768 F.3d 212, 217 (2d Cir. 2014) (per curiam), quoting Mitchell v. Lyons Prof'l Servs., Inc., 708 F.3d 463, 467 (2d Cir. 2013). "[A] pro se litigant's claim should be dismissed for failure to prosecute 'only when the circumstances are sufficiently extreme.'" Baptiste v. Sommers, supra, 768 F.3d at 217, quoting LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001); accord Lucas v. Miles, supra, 84 F.3d at 535 ("[D]istrict courts should be especially hesitant to dismiss for procedural deficiencies where . . . the failure is by a pro se litigant."). "However, in appropriate cases, dismissal must be available, 'not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.'" Nolan v. Primagency, Inc., supra, 2008 WL 1758644 at *2, quoting NHL v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976); see also S. New Eng. Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 149 (2d Cir. 2010).
To determine whether dismissal pursuant to Rule 41(b) is appropriate, district courts employ a balancing test that considers whether:
(1) the plaintiff's failure to prosecute caused a delay of significant duration; (2) plaintiff was given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser sanctions.United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004); accord Lopez v. Pichardo 2230 Rest. Corp., 734 F. App'x 16, 17-18 (2d Cir. 2018); In re World Trade Ctr. Disaster Site Litig., 722 F.3d 483, 486 (2d Cir. 2013); Raber v. Merck, Sharp & Dohme Corp., 526 F. App'x 17, 18 (2d Cir. 2013); Hunter v. N.Y. State Dep't of Corr. Servs., 515 F. App'x 40, 42 (2d Cir. 2013). No single factor is dispositive. United States ex rel. Drake v. Norden Sys., Inc., supra, 375 F.3d at 254 (2d Cir. 2004); accord Jefferson v. Webber, --- F. App'x ---, 2019 WL 2505370 at *3 (2d Cir. June 18, 2019); Shannon v. Gen. Elec. Co., 186 F.3d 186, 194 (2d Cir. 1999).
B. Application of the Foregoing Principles
Defendant argues that this action should be dismissed because plaintiff has refused to proceed to trial (Memorandum of Law in Support of Motion to Dismiss for Failure and Refusal to Prosecute Matter to Trial, dated Nov. 12, 2018 (D.I. 187, 192) ("Def. Memo.") at 4-5). Plaintiff contends that she has complied with all court orders, that "there is no court order to make pre-trial submissions as of this date" and that she has diligently prosecuted her case (Plaintiff Anne Bryant's Opposition to Defendant Monaghan's Motion for Dismissal Under Fed.R.Civ.P. 41(b), dated Nov. 21, 2018 (D.I. 197, 199) at 2).
Pursuant to my June 20, 2017 Scheduling Order, plaintiff was required to serve a draft of her portion of the Pretrial Order on defendant no later than September 27, 2018 -- fifteen days after Judge Crotty's September 12, 2018 decision denying the parties' cross-motions for summary judgment (See Scheduling Order, dated June 20, 2017 (D.I. 96)). However, defendant inexplicably does not cite plaintiff's failure to comply with my June 20, 2017 Scheduling Order as a basis for dismissal pursuant to Fed.R.Civ.P. 41(b). Thus, I do not consider plaintiff's failure to comply with my Scheduling Order as a possible basis for dismissal.
Application of the Second Circuit's five-factor balancing test weighs against dismissal pursuant to Fed.R.Civ.P. 41(b).
First, defendant does not rely on any inordinate delay on the part of plaintiff, nor has he identified any order or rule with which plaintiff failed to comply. Instead, defendant points to plaintiff's statements in her "proposal" that she "'cannot proceed to Trial in this matter'" and "'will not proceed to Trial'" (Def. Memo, at 1-2, quoting Proposal, dated Oct. 5, 2018 (D.I. 172) at 1-2, 5) as proof of plaintiff's failure to prosecute this action. However, plaintiff's statements, taken in context, are more likely explanations or justifications for her proposal to voluntarily dismiss the action, rather than definitive statements of an inability or unwillingness to proceed to trial. Moreover, plaintiff made these statements in response to defendant's letter, not an order from the court. Finally, any delay resulting from plaintiff's statements has been minimal. At most, six weeks elapsed between the unsuccessful conclusion of the parties' negotiations regarding plaintiff's proposal to voluntarily dismiss the action and defendant's filing of the current motion. Accordingly, the relatively short duration of plaintiff's delay weighs against dismissal.
Second, plaintiff was never warned that her failure to prosecute this action or to comply with any court orders or the Federal Rules of Civil Procedure could result in dismissal. Thus, this factor weighs against dismissal. See Coats v. Dep't of Veteran Affairs, 268 F. App'x 125, 127 (2d Cir. 2008) (summary order); Lucas v. Miles, supra, 84 F.3d at 535; Nita v. Conn. Dep't of Envtl. Prot., 16 F.3d 482, 486 (2d Cir. 1994); Jackson v. Seewald, 11 Civ. 5826 (LAK)(JCF), 2013 WL 149341 at *4 (S.D.N.Y. Jan. 14, 2013) (Francis, M.J.) (Report & Recommendation).
Third, defendant has not demonstrated any prejudice as a result of plaintiff's conduct. "Prejudice may be presumed as a matter of law in certain cases, but the issue turns on the degree to which the delay was lengthy and inexcusable. . . . In cases where 'delay is more moderate or excusable, the need to show actual prejudice is proportionally greater.'" United States ex rel. Drake v. Norden Sys., Inc., supra, 375 F.3d at 256, quoting Lyell Theatre Corp. v. Loews Corp., supra, 682 F.2d at 43. Here, as explained above, plaintiff's delay is minimal, which places the burden on defendant to demonstrate actual prejudice. Because defendant has failed to meet this burden, this factor weighs against dismissal.
Fourth, plaintiff's delay has had minimal impact on the court's ability to manage its docket. "There must be compelling evidence of an extreme effect on court congestion before a litigant's right to be heard is subrogated to the convenience of the court." Lucas v. Miles, supra, 84 F.3d at 535-36; accord Baptiste v. Sommers, supra, 768 F.3d at 218-19; Dunn v. Carrier, 314 F. App'x 391, 393 (2d Cir. 2009) (summary order). Defendant presents no such evidence. Accordingly, this factor weighs against dismissal.
Fifth, options are available that are far less punitive than dismissal of plaintiff's case. By Order of even date, I am directing plaintiff to serve a draft of her portion of the Pretrial Order on defendant no later than September 16, 2019. Of course, should plaintiff unjustifiably refuse to comply with this Order or otherwise fail to advance her case to a resolution, defendant's argument for dismissal at such a time would be considerably stronger. Because less punitive alternatives are available to the court, this factor weighs against dismissal.
Thus, because all five factors set forth by the Second Circuit weigh against dismissal pursuant to Rule 41(b), defendant's motion should be denied.
The cases cited by defendant do not support the proposition that a plaintiff's action may be dismissed pursuant to Fed.R.Civ.P. 41(b) solely on plaintiff's stated unwillingness to proceed to trial. In West v. City of New York, 130 F.R.D. 522, 524 (S.D.N.Y. 1990) (Conboy, D.J.), the court dismissed a pro se plaintiff's action for failure to prosecute after more than a year of inactivity, except for one letter requesting pro bono counsel. The court vacated its order of dismissal upon receiving a letter from the plaintiff in which he "declared his intention to prosecute his action, reiterated his request for pro bono counsel, and requested a 90 day extension of discovery." West v. City of New York, supra, 130 F.R.D. at 524. The court granted the plaintiff's request to extend discovery but warned the parties that "'discovery will absolutely and irrevocably close on December 18, 1989.'" West v. City of New York, supra, 130 F.R.D. at 524. When the plaintiff again failed to pursue discovery and failed to communicate with the court, the court granted the defendants' motion to dismiss pursuant to Fed.R.Civ.P. 41(b), finding that the plaintiff "failed to take any substantial steps to move his case forward for approximately nineteen months" and "offered no valid justification or excuse for his inaction." West v. City of New York, supra, 130 F.R.D. at 524, 526.
Here, plaintiff has not failed to pursue discovery, to communicate with the court or to move her case forward. On the contrary, she filed a motion for summary judgment and she writes to the court regularly. At worst, as explained above, she has stated a conditional inability or an unwillingness to proceed to trial. Furthermore, unlike the plaintiff in West v. City of New York, plaintiff has never been warned that her failure to prosecute this action could result in dismissal. The West plaintiff was warned twice: first, by virtue of the court's initial dismissal for lack of prosecution, and again when the court granted his request for an extension of discovery. Thus, the court's decision in West v. City of New York is readily distinguishable.
Defendant also cites the Second Circuit's decision in Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009), for the proposition that the five-factor balancing test discussed above "is not mandatory, especially where the facts make the case ripe for dismissal under Rule 41(b)" (Def. Memo. at 5). In that case, the plaintiff, who was the only witness in support of his case, refused to testify after the court denied his request to adjourn the trial, which was made after the jury had been selected and immediately before opening statements. Lewis v. Rawson, supra, 564 F.3d at 573-74. The Second Circuit affirmed the district court's dismissal of the action, noting that "'[i]t is beyond dispute' . . . 'that a district court may dismiss a case under Rule 41(b) when the plaintiff refuses to go forward with a properly scheduled trial.'" Lewis v. Rawson, supra, 564 F.3d at 580, quoting Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990). The Court of Appeals also found that its five-factor balancing test supported dismissal of the action. Lewis v. Rawson, supra, 564 F.3d at 582-83 ("[A]lthough we do not think the Drake factors are particularly useful to our analysis of the dismissal judgment in this case, . . . we conclude that, even on such review, the judgment should be affirmed.").
In this case, plaintiff's conduct is nowhere near as egregious as that in Lewis v. Rawson. Plaintiff indicated an inability or unwillingness to proceed to trial in the context of a written proposal to voluntarily dismiss the action in exchange for the production of documents. No jury had been empaneled, no trial had even been scheduled and the court had not blocked out a window of time for trial. Nothing here suggests that I should depart from the five-factor test, and, as explained above, application of that test weighs against dismissal. Accordingly, defendant's motion should be denied.
IV. Conclusion
For all of the foregoing reasons, I respectfully recommend that defendant's motion to dismiss this action be denied. If adopted, this Report and Recommendation closes Docket Items 185 and 191.
V. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections and responses thereto) shall be filed with the Clerk of the Court with courtesy copies delivered to the Chambers of the Honorable Paul A. Crotty, United States District Judge, 500 Pearl Street, Room 1350, New York, New York 10007 and to the Chambers of the undersigned, 500 Pearl Street, Room 1670, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Crotty. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983) (per curiam). Dated: New York, New York
August 5, 2019
Respectfully submitted,
/s/_________
HENRY PITMAN
United States Magistrate Judge Copy mailed to: Ms. Anne Bryant
P.O. Box 418
Stony Point, New York 10980 Copies transmitted to: Patrick J. Monaghan, Jr., Esq.
Beattie Padovano, LLC
50 Chestnut Ridge Road, Suite 208
Montvale, New Jersey 07645 Urban S. Mulvehill, Esq.
O'Neill, DiManno & Kelly
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New York, New York 10038