Opinion
Civil Action 22 Civ. 10674 (PAE) (SLC)
06-13-2024
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 December 16, 2022, Plaintiff Mark Garnes (“Mr. Garnes”) filed this action bringing claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981 against his former employer, Defendant Pritchard Industries, Inc. (“Pritchard”). (ECF No. 1). This is the second of four actions Mr. Garnes has filed in this Court in connection with his employment with Pritchard. See Garnes v. Pritchard Indus., Inc., 20 Civ. 3843 (PAE) (SLC) (S.D.N.Y. filed May 18, 2020) (“Garnes I”); Garnes v. Pritchard Indus., Inc., 23 Civ. 6699 (PAE) (SLC) (S.D.N.Y. filed July 28, 2023) (“Garnes III”); Garnes v. Pritchard Indus., Inc., et al., 23 Civ. 10707 (PAE) (SLC) (S.D.N.Y. filed Dec. 7, 2023) (“Garnes IV”).
On March 29, 2024, the undersigned issued a Report & Recommendation in Garnes I, recommending that the case be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) based on Mr. Garnes' many failures over a nine-month period to comply with, or even respond to, Court Orders. (Garnes I, ECF No. 64 (the “R&R”)). Garnes v. Pritchard Indus., Inc., No. 20 Civ. 3843 (PAE) (SLC), 2024 WL 2862600 (S.D.N.Y. Mar. 29, 2023). On May 2, 2024, the Honorable Paul E. Engelmayer issued an Opinion & Order in Garnes I, adopting the R&R in full and dismissing the case for failure to prosecute. (Garnes I, ECF No. 68 (the “O&O”)). Garnes v. Pritchard Indus., Inc., No. 20 Civ. 3843 (PAE) (SLC), 2024 WL 1929157 (S.D.N.Y. May 23, 2023). The factual background set out in the R&R and O&O are incorporated to this Report by reference.
In this action-as in Garnes I-the Court compelled Mr. Garnes to arbitrate his discrimination claims against Pritchard. (ECF No. 22). Garnes v. Pritchard Indus., Inc., No. 22 Civ. 10674 (PAE) (SLC), 2023 WL 5744466 (S.D.N.Y. Sept. 6, 2023) (the “Sept. 6 Order”). Mr. Garnes failed to do so in defiance of the Sept. 6 Order and the undersigned's February 5, 2024 admonition that he “promptly take the necessary steps to initiate arbitration . . . .” (ECF No. 23 at 3 (emphasis in original)). Consequently, on May 3, 2024, one day after Judge Engelmayer's dismissal of Garnes I, the Court issued an Order requiring Mr. Garnes to show cause by May 10, 2024 why this action - Garnes II-should not be dismissed for “substantially the same reasons underlying Judge Engelmayer's dismissal of Garnes I.” (ECF No. 24 (the “OTSC”)). Mr. Garnes has not filed any response to the OTSC.
II. DISCUSSION
A. Legal Standard
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).
B. Application
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 plaintiff, bears the burden of prosecuting his case, but has ignored and failed to comply with several of the Court's Orders. Despite being directed, over nine months ago, in the Sept. 6 Order to arbitrate his Discrimination Claims (ECF No. 22), he has not initiated an arbitration, despite representing to the Court in Garnes I that he would do so (see Garnes I, ECF Nos. 58; 60). Mr. Garnes has also failed to comply with the OTSC and has not communicated with the Court for approximately four months.
Mr. Garnes' continued and persistent failure to comply with the Court's Orders and prosecute this case, 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”).
III. CONCLUSION
Accordingly, the Court respectfully recommends that this action be DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b).
By Friday, June 14, 2024, Pritchard shall serve a copy of this Report and Recommendation on Mr. Garnes and file proof of service on the docket.
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.