Opinion
99 Civ. 4246 (SAS)
July 14, 2000
Ann Hibbert, Pro Se, Poughkeepsie, New York, for Plaintiff.
Susan D. Baird, Assistant United States Attorney, New York, New York, for Defendant.
OPINION AND ORDER
Pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405 (g) and 1383(c)(3), plaintiff commenced this action to review a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for child's Supplemental Security Income ("SSI") benefits. Defendant now moves to dismiss for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant's motion is granted.
I. Legal Standard
Dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure ("Rule 41(b)") is subject to the discretion of the district courts. See Nita v. Connecticut Dep't of Envtl. Protection, 16 F.3d 482, 485 (2d Cir. 1994); Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988). That discretion, however, should be exercised sparingly and only when the district judge is "sure of the impotence of lesser sanctions." Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980).
II. Factual Background
On June 14, 1999, plaintiff filed a Complaint seeking review of the Commissioner's final decision denying her application for SSI benefits. On September 14, 1999, this Court endorsed a Stipulation and Order ("Stipulation"), signed by both parties, extending defendant's time to answer until November 22, 1999. See 9/14/99 Order Extending Defendant's Time to Answer. Defendant's Answer was filed on that date.
On December 9, 1999, the United States Attorney's office wrote to plaintiff proposing to remand the action to the Commissioner for further administrative proceedings. See 12/9/99 Letter to Plaintiff, Ex. A to 4/5/00 Declaration of Susan D. Baird, Assistant United States Attorney ("Baird Decl."). The letter was mailed to plaintiff at the address listed in the Complaint (13 Academy Street, Apt. 1, Poughkeepsie, New York 12601). Id. Plaintiff did not respond. On January 7, 2000, a second letter was sent to the same address. See Second Letter to Plaintiff, Ex. B to Baird Decl. Again plaintiff did not respond. Neither letter was returned to sender by the Post Office. See Baird Decl. ¶¶ 5, 7. Also on January 7, the United States Attorney's office made a further attempt to contact plaintiff, this time by telephoning the number listed in the Complaint. Id. A recording stated that the number was not a working number. Id. The letter was sent to the address listed in the Complaint, 13 Academy Street. To date, the only address that the Pro Se office has is 13 Academy Street and the Pro Se Office has indicated to this Court that it has received no change of address notifications from plaintiff. On February 11, 2000, the United States Attorney's office again tried to contact plaintiff by telephoning the same number. See Baird Decl. ¶ 9. By this time, the number had been reassigned to someone else. Id.
On February 15, 2000, this Court issued an order directing plaintiff to appear at a Court conference on March 1, 2000. See 2/15/00 Order Directing Plaintiff to Appear at Court Conference. On February 29, 2000, the copy of the Order that had been sent to plaintiff was returned by the post office marked: "Moved, no forwarding address." See Baird Decl. ¶ 11. Accordingly, the March 1, 2000 conference was canceled.
The letter was sent to the address listed in the Complaint, 13 Academy Street. To date, the only address that the Pro Se office has is 13 Academy Street and the Pro Se Office has indicated to this Court that it has received no change of address notifications from plaintiff.
On April 6, 2000, defendant moved to dismiss this action for failure to prosecute under Rule 41(b). See 4/6/00 Notice of Motion. Finally, on May 9, 2000, this Court issued an Order directing plaintiff to file opposition papers within thirty days and indicating that a failure to comply with the order would result in a decision on defendant's motion based solely on papers submitted by defendant. See 5/9/00 Order. The letter was again sent to 13 Academy Street and again returned marked, "Moved, Left No Address." Id. Plaintiff has made no attempt to contact Chambers with regard to this motion.
III. Discussion
A balancing of five factors determines whether a court should grant a Rule 41(b) motion to dismiss for failure to prosecute. See Jackson v. City of New York, 22 F.3d 71, 74 (2d Cir. 1994). The district court considers: (1) the duration of the plaintiff's failures; (2) whether plaintiff had received notice that further delays would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay; (4) whether the district judge has taken care to strike the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard; and (5) whether the judge has adequately assessed the efficacy of lesser sanctions. See id.
First, plaintiff's failure to take any action since defendant's proposal to remand the case to the Commissioner in December of last year, constitutes an unreasonable delay. Over six months have passed since plaintiff received the proposal. Indeed, courts have held that similar periods of delay justify dismissal of an action. See, e.g., Chira, 634 F.2d at 666-67 (plaintiff's failure to take any action to move his case to trial during six months justified dismissal under Rule 41(b)). Moreover, plaintiff has proffered no explanation for her apparent abandonment of her case, nor has she made any attempt to contact this Court or defendant.
Second, the Court attempted to notify plaintiff of the potential dismissal of her case via its May 9 Order, which was returned to sender. Regardless of whether plaintiff actually received notice that further delays would result in dismissal, it remained her "duty to process [her] case diligently." Smith v. Human Resources Admin. of New York City, 91 Civ. 2295, 2000 WL 307367, at *2 (S.D.N.Y. Mar. 24, 2000) (internal quotations and citation omitted) (alteration in original). It is also plaintiff's obligation to inform this Court's Pro Se office of any change of address. Plaintiff's inaccessibility for over six months is anything but diligent prosecution of her case and she has not notified the Pro Se office of any change of address. Even though plaintiff did not receive this Court's Order, defendant may nonetheless prevail on its motion to dismiss for failure to prosecute. See Mathews v. U.S. Shoe Corp., 176 F.R.D 442, 445 (W.D.N.Y. 1997) (granting defendant's Rule 41(b) motion notwithstanding plaintiff's non-receipt of court's order to comply with discovery requests or be subject to possible dismissal for failure to prosecute).
Third, while "[p]rejudice to defendants resulting from an unreasonable delay may be presumed[,] . . . in cases where delay is more moderate or excusable, the need to show actual prejudice is proportionately greater." Lyell Theater Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). Here, however, plaintiff's delay is neither moderate nor excusable. The record is devoid of any explanation for plaintiff's complete inaction and failure to respond to numerous attempts to contact her for over six months. Thus, the prejudice to defendant can be fairly presumed.
Fourth, dismissing plaintiff's case does not violate her due process rights under the circumstances. Plaintiff has had ample opportunity to prosecute her case and to be heard. Further, both this Court and defendant have made every effort to enable plaintiff to proceed. Plaintiff has nevertheless done nothing. Moreover, as the Second Circuit has explained, "the authority to invoke [dismissal] for failure to prosecute is vital to the efficient administration of judicial affairs and provides meaningful access for other prospective litigants to overcrowded courts." Id. at 42. It is not the function of this Court to chase dilatory plaintiffs while other litigants in this district seek access to the courts.
Fifth, lesser sanctions are not appropriate in this case. Court Orders and defendant's attempts to contact plaintiff have proven fruitless. Plaintiff has consistently ignored all attempts to contact her, has taken no action in her case for over six months, and has failed to notify any parties of any change of address. Plaintiff has apparently lost interest in her case and, accordingly, this Court is left with no alternative but to dismiss her case for failure to prosecute.
Plaintiff's status as a pro se litigant does not save her case from dismissal. "[A]ll litigants, including pro ses [sic.], have an obligation to comply with court orders. When they flout that obligation they, like all litigants, must suffer the consequences of their actions." McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 123 (2d Cir. 1988). See also Lindsey v. Loughlin, 616 F. Supp. 449, 453 (E.D.N.Y. 1985) (dismissing pro se plaintiff's case under Rule 41(b) because of plaintiff's failure to appear at scheduled conferences, maintain contact with the court, or take other action to prepare case for trial). Plaintiff has no more right to neglect her case while this Court and her adversary spend valuable time trying to find her than does a represented party.
Although sympathetic to the plight of the unrepresented, strong policy concerns further support dismissal. "Delays have dangerous ends, and unless district judges use the clear power to [dismiss] when appropriate, exhortations of diligence are impotent." Chira, 634 F.2d at 668. This Court, and others throughout the country, are flooded daily by litigants seeking redress for harms they have suffered. To permit plaintiff to file an action and then do nothing, thereby completely abdicating her responsibilities, would be to deny other litigants in this district the efficient administration of justice. Under these circumstances, dismissal is appropriate.
IV. Conclusion
For the foregoing reasons, I conclude that plaintiff has failed to prosecute her case by making no contact whatsoever with this Court or with defendant for over six months, by failing to respond to all attempts to contact her, and by failing to respond to any of this Court's Orders. Accordingly, defendant's motion to dismiss pursuant to Rule 41(b) of the Federal Rules of Civil Procedure is granted. The Clerk of the Court is directed to close this case.
SO ORDERED.