Opinion
22-CV-4856 (JHR) (KHP)
07-27-2023
JEREMY ALLAN JAMES, Plaintiff, v. THE STATE UNIVERSITY OF NEW YORK, Defendant.
TO: THE HONORABLE JENNIFER H. REARDEN, United States District Judge.
REPORT AND RECOMMENDATION
KATHARINE H. PARKER, United States Magistrate Judge.
I respectfully recommend that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) for failure of the pro se Plaintiff, Jeremy Allen James, to prosecute the case and for Plaintiff's continued failure to follow Court orders.
BACKGROUND
Plaintiff commenced this action on June 9, 2022. The undersigned was referred for general pretrial management on September 28, 2022 and held an initial case management conference on January 10, 2023. At the conference, the Court set a briefing schedule for Defendant's anticipated motion to dismiss and a preliminary discovery schedule that included the exchange of initial disclosures by February 9, 2023. (Id.) The Court ordered Plaintiff to file, by February 9, 2023, either an Amended Complaint or a letter advising the Court that he does not intend to amend the Complaint. (Id.) Additionally, the Court scheduled another case management conference and directed the parties to submit a joint letter listing proposed agenda items one week in advance of the conference.
Since the initial case management conference, Plaintiff has defied numerous Court orders, failed to show up for case management conferences, failed to participate in discovery, and failed to oppose Defendant's motion to dismiss. Plaintiff did not comply with the Court's direction to file either an amended complaint or a letter by February 9, 2023. Plaintiff also did not produce initial disclosures by February 9, 2023, and the Court understands that Plaintiff still has not produced initial disclosures. (See ECF Nos. 86, 87.)
Instead, following the initial case management conference, Plaintiff filed a series of letter motions seeking different results from what the Court ordered at the conference, and eventually moved for the recusal of the undersigned and of Judge Rearden. Judge Rearden and the undersigned each issued orders denying these requests and providing explanations as to why these requests were denied, and denied the motions for recusal. Plaintiff then filed an interlocutory appeal with the Second Circuit on March 4, 2023, challenging certain preliminary rulings by this Court, and since that time has refused to participate in this case.
On March 13, Plaintiff filed a letter indicating that he believed the Second Circuit had ordered a stay in this case. Plaintiff attached to his letter a copy of an email from the Second Circuit's Pro Se Unit informing Plaintiff that any request for a stay in this case needed to be directed to this Court. The Court reviewed Plaintiff's letter and the docket in the case on appeal and recognized that no stay had been ordered. The Court then issued an Order explaining to Plaintiff that no stay was ordered by the Second Circuit, and, construing Plaintiff's letter as a request for this Court to issue a stay, denying the request. (ECF No. 78.)
Plaintiff then filed a series of letters insisting that this case was stayed pending his appeal. (ECF Nos. 79, 81, 83, 85, 87.) However, Plaintiff's continued insistence that this case was stayed became increasingly more difficult to justify. On March 30, 2023, the Second Circuit issued an Order expressly denying Plaintiff's request for the Second Circuit to institute a stay in this action. James v. State Univ. of N.Y., No. 23-287 (2d Cir. Mar. 30, 2023). Following that order, the undersigned and Judge Rearden issued additional orders clearly explaining to Plaintiff that this case was not stayed. (See ECF Nos. 88, 93, 105.)
On April 4, 2023, counsel for Defendant submitted a letter setting forth agenda items in advance of the upcoming conference, and explaining that, in defiance of this Court's Order that the parties submit a joint letter, Plaintiff had refused to participate in the Court-ordered submission. (ECF No. 86.) On April 5, 2023, the Court issued an order again advising Plaintiff that this action was not stayed and reminding Plaintiff of his obligation to attend the upcoming case management conference scheduled for April 10, and to oppose the Motion to Dismiss by the April 12 deadline. (ECF No. 88.) Plaintiff did not comply with either direction. On April 10, 2023, Plaintiff failed to appear for the scheduled case management conference, and on April 12, he failed to oppose the motion to dismiss. The Conference was adjourned and was rescheduled to July 26, 2023. The Court issued an order warning Plaintiff that continued failure to comply with Court orders may result in sanctions, up to and including dismissal of this action with prejudice. (ECF No. 93.)
On June 29, 2023, Judge Rearden issued an Order informing Plaintiff in no uncertain terms that his case was not stayed by the Second Circuit or otherwise, and that his understanding to the contrary is “mistaken.” (ECF No. 105.)
On July 6, 2023, the Second Circuit dismissed Plaintiff's appeal on the basis that it lacked jurisdiction over the appeal. James v. State Univ. of N.Y., No. 23-287 (2d Cir. July 6, 2023).
On July 25, 2023, the Court issued a reminder to the parties of the conference that was scheduled for July 26, 2023. Although Plaintiff's appeal to the Second Circuit has been dismissed, on the evening of July 25, 2023, Plaintiff submitted a letter stating that he is “in communication with the Second Circuit” and accordingly it is not “appropriate” for him to attend the conference. (ECF No. 110.) Plaintiff failed to attend the July 26, 2023 conference.
LEGAL STANDARD
Rule 41(b) provides that a court may dismiss an action “[f]or a failure of the plaintiff to prosecute or to comply with . . . any order of the court.” Rule 41(b) gives the district court authority to dismiss a plaintiff's case sua sponte. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)).
In determining whether to dismiss a case under Rule 41(b), courts consider the following factors: (1) the duration of the plaintiff's failures, (2) whether the plaintiff received notice that further delays would result in dismissal, (3) whether the defendant is likely to be prejudiced by further delay, (4) 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) the efficacy of lesser sanctions. Id. No single factor is dispositive. U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). When deciding whether to dismiss a pro se litigant's complaint, circumstances must be “sufficiently extreme.” Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998).
ANALYSIS
Dismissal under Rule 41(b) is appropriate here. For six months, Plaintiff has failed to comply with court orders, failed to participate in discovery, and failed to appear for case management conferences. See, e.g. Walters v. City of New York, 2022 WL 4031425, at *2 (S.D.N.Y. Sept. 2, 2022), motion for relief from judgment denied, 2023 WL 171887 (S.D.N.Y. Jan. 12, 2023) (dismissing case under Rule 41(b) where plaintiff stopped showing up for conferences); Virola v. Entire GRVC Dep't of Mental Health Hygiene Servs., 2014 WL 793082, at *2-3 (S.D.N.Y. Feb. 21, 2014) (dismissing case under Rule 41(b) where plaintiff failed to prosecute for 6 months); Hartley v. Devlin, 2018 WL 4087976, at *2 (N.D.N.Y. July 30, 2018), report and recommendation adopted, 2018 WL 4078267 (N.D.N.Y. Aug. 27, 2018) (recommending dismissal under Rule 41(b) where in the span of five months, the plaintiff failed to appear for two conferences and respond to a motion to dismiss). During this time, discovery has completely stalled, and the Court has been unable to meaningfully communicate with the Plaintiff.
Although Plaintiff may have initially been under the mistaken belief that this case was stayed, this Court has repeatedly explained to Plaintiff that the case is not stayed. Moreover, the Second Circuit explicitly denied Plaintiff's request for a stay in this case, and ultimately dismissed Plaintiff's appeal. Accordingly, Plaintiff's continued insistence that his case is “stayed” is unreasonable.
Plaintiff also has been expressly warned that continued failure to prosecute this action would result in sanctions, up to and including dismissal, but his failure to prosecute has continued.
Defendant is prejudiced by Plaintiff's failure to prosecute, because it has been required to expend unnecessary resources attending case management conferences in this Court that Plaintiff continues to fail to attend. Moreover, Plaintiff's behavior has caused undue congestion to this Court's calendar due to his failure to attend conferences. It is prejudicial to Defendant and unduly burdensome on this Court to continue this case in which the Plaintiff is refusing to participate, refusing to comply with orders, and refusing to even show up at conferences.
In light of the fact that Plaintiff's behavior has not changed following the Second Circuit's dismissal of his appeal, it seems highly unlikely that Plaintiff will decide to continue prosecuting this case in the foreseeable future. Given Plaintiffs' repeated failure to comply with the Court's orders, his continued failure to attend conferences, and his continued and unreasonable insistence that this case is stayed, the sanction of dismissal with prejudice is appropriate. See Alaimo v. Auto. Consulting, 2010 WL 2884711 (S.D.N.Y. July 20, 2010) (dismissing with prejudice based on plaintiff's continued failure to prosecute); Jiminez v. Bank of Am., N.A., 2014 WL 2759088, at *2 (E.D.N.Y. June 17, 2014) (same).
CONCLUSION
For the above reasons, I respectfully recommend that the instant action be dismissed with prejudice for failure to prosecute pursuant to Rule 41(b).
The Clerk of the Court is respectfully directed to mail a copy of this Report and Recommendation to Plaintiff.
NOTICE
The Plaintiff shall have seventeen days and Defendant shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, 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 only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
If Defendant files written objections to this Report and Recommendation, Plaintiff may respond to the objections within seventeen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). If Plaintiff files written objections, Defendant may respond within fourteen days. Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jennifer H. Rearden at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Rearden. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn , 474 U.S. 140 (1985).