Opinion
Civil Action 20 Civ. 3843 (PAE) (SLC)
03-29-2024
MARK GARNES, Plaintiff, v. PRITCHARD INDUSTRIES, INC., Defendant.
REPORT & RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE PAUL A. ENGELMAYER, United States District Judge:
I. BACKGROUND
On May 18, 2020, Plaintiff Mark Garnes (“Mr. Garnes”) brought this action alleging discrimination and other claims against his former employer, Defendant Pritchard Industries, Inc. (“Pritchard”). (ECF No. 1). Plaintiff filed an Amended Complaint on June 24, 2020. (ECF No. 7). On January 27, 2023, Pritchard moved to dismiss the Amended Complaint or, in the alternative, to compel arbitration. (ECF No. 33 (the “Motion”)). After Mr. Garnes opposed the Motion (ECF No. 47) and Pritchard replied (ECF No. 48), the undersigned issued a Report & Recommendation recommending that: (1) the Motion be granted in part and denied in part, (2) Mr. Garnes be compelled to arbitrate his discrimination claims (the “Discrimination Claims”), (3) Mr. Garnes' claim for breach of the governing collective bargaining agreement (the “CBA Claim”) be dismissed without prejudice and with leave to amend when the action resumed following arbitration, and (4) the case be stayed pending arbitration. (ECF No. 50 (the “R&R”)). Garnes v. Pritchard Indus., Inc., No. 20 Civ. 3843 (PAE) (SLC), 2023 WL 3980693, at *15 (S.D.N.Y. May 23, 2023). On June 13, 2023, the Honorable Paul A. Engelmayer issued an Opinion & Order adopting the R&R in its entirety and, inter alia, entering a stay of this action pending arbitration. (ECF No. 52 (the “O&O”)). Garnes v. Pritchard Indus., Inc., No. 20 Civ. 3843 (PAE) (SLC), 2023 WL 3977882, at *1 (S.D.N.Y. June 13, 2023).
On December 13, 2023, the case having been stayed for six months, the Court ordered the parties, by December 20, 2023, to meet and confer and file a joint letter reporting on the status of the arbitration. (ECF No. 53). On December 20, 2023, Pritchard filed a letter stating that Mr. Garnes had not initiated arbitration. (ECF No. 54). On December 28, 2023, eight days past the deadline, Mr. Garnes filed a letter stating that he had not initiated arbitration-and did not plan to do so-because he did not have the financial ability to do so. (ECF No. 55). On January 2, 2024, the Court issued an Order for Mr. Garnes to show cause by January 16, 2024 why, given his failure to initiate arbitration: (i) the stay should not be lifted, (ii) the arbitrable Discrimination Claims should not be dismissed, and (iii) the Court should not set a deadline for Mr. Garnes to file a Second Amended Complaint with respect to the nonarbitrable CBA Claim. (ECF No. 57 (the “OTSC”)). The OTSC warned Mr. Garnes that “failure to respond to this Order to Show Cause by January 16, 2024 may result in the Court issuing a recommendation to Judge Engelmayer to dismiss all or part of this case, with or without prejudice.” (Id.)
On January 31, 2024, 15 days past the deadline, Mr. Garnes filed a letter “plead[ing] forgiveness for [his] delay” and stating that he would initiate arbitration against Pritchard. (ECF No. 58). Based on Mr. Garnes' letter and his representation that he would pursue arbitration, the Court deemed the OTSC to be satisfied, directed Mr. Garnes to “promptly take the necessary steps to initiate arbitration,” and ordered the parties to file a file a joint status letter by March 6, 2024. (ECF No. 59). On February 28, 2024, Mr. Garnes filed a letter addressed to Judge Engelmayer reporting that he had taken steps to follow the CBA's grievance procedure and that arbitration would proceed. (ECF No. 60 at 1 (“I . . . submit the enclosed correspondence with grievance initiative to commence, thus, arbitration plausible to follow [sic]”)).
On March 6, 2024, the deadline for the parties to provide a joint status report, Pritchard filed a letter stating that, to date, Mr. Garnes still had not commenced arbitration and that Pritchard had “not received any other documentation regarding the commencement of an arbitration.” (ECF No. 61). In the letter, Pritchard reported that, although it sent a proposed joint letter to Mr. Garnes earlier that day, he did not respond. (Id.) On March 7, 2024, the next day, the Court ordered that, “[b]y March 14, 2024, Plaintiff shall file a letter in response to Defendant's letter at ECF No. 61.” (ECF No. 62 (the “Mar. 7 Order”) (emphasis in original)). On March 19, 2024, Mr. Garnes' deadline having passed five days before, the Court issued another Order stating that Mr. Garnes had “failed to comply with the [Mar. 7] Order.” (ECF No. 63 (the “Mar. 19 Order”)). As a courtesy to Mr. Garnes, the Court “sua sponte extend[ed] to March 26, 2024 [his] deadline” to comply with the Mar. 7 Order and file a response to Pritchard's letter. (Id. (emphasis in original)). The Court expressly warned Mr. Garnes that:
any continued failure to comply with the Court's Orders-including this Order- may result in sanctions being assessed against him, including but not limited to a recommendation to the Honorable Paul A. Engelmayer to dismiss this case for failure to prosecute under Federal Rule of Civil Procedure 41(b).(Id.)
Despite the Court's warning, Mr. Garnes did not file anything with the Court by March 26, 2024, and has therefore failed to comply with the Mar. 19 Order. Mr. Garnes has now failed to comply with two recent Court Orders and has not communicated with the Court since February 28, 2024.
II. DISCUSSION
Federal Rule of Civil Procedure 41(b) provides 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 claim against it.” A district court may also dismiss an action sua sponte for failure to prosecute under Rule 41(b). See Murray v. Smythe, No. 18 Civ. 4705 (KMK), 2020 WL 4482644, at *2 (S.D.N.Y. Aug. 3, 2020) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). In determining whether to do so, the Court considers: (i) the duration of the plaintiff's failure to comply with court orders, (ii) whether he received notice that further delay would result in dismissal, (iii) defendant's prejudice from further delay, (iv) the efficacy of lesser sanctions, and (v) the balance between “alleviat[ing] court calendar congestion” and protecting the plaintiff's right to due process. Caussade v. United States, 293 F.R.D. 625, 629 (S.D.N.Y. 2013) (quoting Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009)). While “pro se plaintiffs should be granted special leniency regarding procedural matters[,]” Obot v. Comm'r, 254 Fed.Appx. 57, 58 (2d Cir. 2007) (summary order), “even pro se litigants must prosecute claims diligently, and dismissal . . . is warranted where the court gives warning.” Jean-Felix v. Great Lakes Higher Educ. Corp., No. 21 Civ. 6122 (ALC) (RWL), 2023 WL 3866764, at *1 (S.D.N.Y. May 3, 2023) (citations omitted).
Here, considering the factors noted above, the Court concludes that Mr. Garnes has failed to prosecute this action and dismissal is appropriate. Mr. Garnes, as the affirmative litigant, bears the burden of prosecuting his case, and yet has ignored and failed to comply with several of the Court's Orders. Despite being directed in the O&O on June 13, 2023 to arbitrate his Discrimination Claims (ECF No. 52), over nine months ago, he has not complied, despite representing to the Court that he would do so (see ECF Nos. 58; 60). Mr. Garnes has also failed to comply with two recent Court Orders-the Mar. 7 and Mar. 19 Orders (ECF Nos. 62-63)-and has failed to communicate with the Court for over one month. The Court initially excused Mr. Garnes' failure to comply with the Mar. 7 Order and sua sponte extended his time to comply, to no avail. (ECF No. 63; see ECF No. 62). In the Mar. 19 Order, the Court expressly warned Mr. Garnes, for the second time in this case (see ECF No. 57), that failure to comply would result in a recommendation to Judge Engelmayer to dismiss the case for failure to prosecute (ECF No. 63), and yet Mr. Garnes still did not comply. Mr. Garnes' continued and persistent failure to comply with the Court's Orders and prosecute this case, including and especially over the last nine months since the Court compelled him to arbitrate, justifies dismissal for failure to prosecute. See Ruzsa v. Rubenstein & Sendy, 520 F.3d 176, 178 (2d Cir. 2008) (affirming dismissal for failure to prosecute because, “in light of [pro se plaintiff's] failure to respond to the notice threatening dismissal, it is equally unclear that a ‘lesser sanction' would have proved effective in this case”); Dixon v. Wells Fargo Bank, N.A., No. 21 Civ. 10 (JPC), 2022 U.S. Dist. LEXIS 127148, at *1-3 (S.D.N.Y. July 18, 2022) (dismissing case for failure to prosecute where pro se plaintiff had not commenced arbitration in the nine-month period after being compelled to do so, and was warned twice “that failure to comply would result in the case being dismissed without prejudice”); German v. Blinken, No. 21 Civ. 4318 (ER), 2022 WL 1748409, at *2 (S.D.N.Y. May 31, 2022) (dismissing case for failure to prosecute, finding that “because [pro se plaintiff] has ignored two Court orders and delayed this case for several months, there are no lesser sanctions that could remedy his failure to prosecute this case”).11 The Court notes that Mr. Garnes currently has pending three other actions premised on similar, if not identical, allegations as those he asserts in this action. See Garnes v. Pritchard Indus., Inc., No. 22 Civ. 10674 (PAE) (SLC) (S.D.N.Y. filed Dec. 16, 2022); Garnes v. Pritchard Indus., Inc., No. 23 Civ. 6699
III. CONCLUSION
Accordingly, the Court respectfully recommends that this action be DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b).
By April 1, 2024, Pritchard shall serve a copy of this Report and Recommendation on Mr. Garnes and file proof of service.
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to Mr. Garnes.
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 (14) 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), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer.
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), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Mr. Garnes does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from the Law Department. See Local Civ. R. 7.2.