Opinion
1:20-cv-03894 (LTS) (SDA)
05-17-2021
Raymon A. Dash, 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., No. 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. 5.) On June 18, 2020, the Court entered an Order of Service. (Am. Order of Service, ECF No. 10.) In the ensuing months service of process was effectuated (see ECF Nos. 13-15, 19), and certain defendants filed motions to dismiss. (See infra.)
On January 5, 2021, the Court held a telephone conference to discuss the status of the case, for which Plaintiff appeared. Following the conference, the Court entered an Order stating that, no later than March 5, 2021, Plaintiff shall either (1) file an Amended Complaint, or (2) file an opposition to each of the pending motions to dismiss filed by Defendant Oasis (ECF No. 29) and Defendant Sera Security (ECF No. 39) and the anticipated motions to dismiss to be filed by Defendant City of New York (the “City”) and by Defendant New York City Housing Authority (“NYCHA”). (1/5/2021 Order, ECF No. 43.) The Court also stated that “[i]f Plaintiff requires additional time to respond to the motions, including the anticipated motion to be filed by NYCHA . . . he may file a letter with the Court requesting a further extension.” (Id.) A copy of the Order was mailed to Plaintiff at the address listed on the docket. (See 1/5/2021 docket text entry).
On January 5, 2021, the City filed its motion to dismiss (ECF No. 44) and, on January 22, 2021, NYCHA filed its motion to dismiss (ECF Nos. 47-48.)
On March 16, 2021, having received nothing from Plaintiff in response to the January 5, 2021 Order, the Court entered another Order extending the deadline for Plaintiff to comply until April 15, 2021. (3/16/2021 Order, ECF No. 53.) In addition, the Court warned Plaintiff that failure to file an amended pleading or opposition by the new deadline would result in a recommendation to the District Judge that his case be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). (Id.) The March 16, 2021 Order was mailed to Plaintiff at the address indicated on the docket. (See 3/17/2021 docket text entry.)
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 had any contact with the Court since the January 5, 2021 conference. 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 similar periods of time. 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 March 16, 2021 Order, the Court explicitly warned Plaintiff that failure to comply would result in a recommendation of dismissal. Despite this warning, Plaintiff has not complied with the Court's Orders or sought an extension of time to do so. The Court finds that the third factor also favors Defendants, several of which have filed motions to dismiss that have not been responded to.
The fourth factor favors dismissal because Plaintiff has had multiple opportunities to be heard by the Court, but has not attempted to communicate with the Court in any way following the January 5, 2021 telephone conference. 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.