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denying defendant's motion to strike the plaintiff's submission filed in opposition to motion to dismiss because it is not a pleading and, thus, is not the proper subject of a Rule 12(f) motion
Summary of this case from Huelbig v. Aurora Loan Servs., LLCOpinion
07 Civ. 8314 (PKC)(KNF).
October 6, 2009
REPORT AND RECOMMENDATION
I. INTRODUCTION
Howard Katz ("Katz"), proceeding pro se, brings this breach of contract action against Joe Robert Mogus ("Mogus") and All That Glitters, Inc. alleging he is entitled to recover from them $151,000, for the sale and shipment of gold jewelry. Before the Court are Mogus' (1) motion to dismiss, for failure of the plaintiff to prosecute this action, and (2) motion to strike the plaintiff's submission opposing the motion to dismiss. The plaintiff opposes only the motion to dismiss.
II. BACKGROUND
Katz commenced the instant action on February 2, 2006, in the United States District Court for the Eastern District of New York. On September 10, 2007, the case was transferred to this judicial district. Thereafter, the Court scheduled a telephonic conference with the parties, to be held on October 16, 2007, and ordered the plaintiff's former counsel, Shmuel Berel Klein, Esq. ("Klein"), to initiate the conference. Klein failed to initiate the conference, via telephone, and it did not go forward.
By an order, dated October 17, 2007, the Court rescheduled the conference for October 24, 2007, and again ordered the plaintiff's counsel to initiate the conference, via telephone. The Court advised the plaintiff that "failing to comply with an order of the Court may result in the issuance of a report and recommendation to the assigned district judge that the [] complaint be dismissed."
Klein could not reach Mogus, via telephone, on October 24, 2007, as an automated answering device engaged each time he attempted to reach Mogus. As a result, the conference did not go forward.
By an order, dated October 25, 2007, the Court rescheduled the conference for November 5, 2007, and directed Klein to initiate the conference, via telephone. The Court reminded the parties "that failing to comply with an order of the Court may result in the imposition of a sanction."
Following the November 5 telephonic conference, the Court scheduled a settlement conference for the parties and ordered Mogus to decide which of his three recently filed motions to dismiss "should be withdrawn because they pertain to issues already decided by the judicial officer who was assigned this matter while it was pending" in the United States District Court for the Eastern District of New York. Mogus declined to withdraw any of the motions and, on June 30, 2008, your Honor adopted the Court's report and recommendation that Mogus' motions be denied. Subsequently, the Court sanctioned Mogus $500 for filing "repetitive and frivolous" motions.
The Court held a pretrial conference, with the parties, on September 16, 2008. In the case management order issued the following day, the Court directed the plaintiff's counsel to initiate a telephonic status conference on December 16, 2008. The day of the conference, Mogus informed the Court that Klein did not contact him to participate in the conference; therefore, the conference could not proceed.
On December 24, 2008, the Court ordered Klein to initiate another telephonic status conference, on January 13, 2009. He failed to do so, and the conference did not go forward.
By an order, dated January 13, 2009, the Court directed the plaintiff "to show cause, in writing, on or before January 22, 2009, why a report and recommendation should not issue to the assigned district judge that the instant action be dismissed." The plaintiff never submitted any writing pursuant to the order.
On January 20, 2009, Klein was suspended from practicing before this court. The Court directed the plaintiff to have new counsel file a notice of appearance or to contact the Pro Se Office if he chose to represent himself.
Thereafter, the plaintiff, proceeding pro se, failed to contact the Court, on March 16, 2009, to participate in a scheduled telephonic status conference. By an order, dated March 17, 2009, the Court directed the plaintiff to appear, in court, for a conference, on March 31, 2009. The Court reminded the plaintiff that "he must comply with all court orders" and that failing to do so may result in a report and recommendation, to your Honor, that his complaint be dismissed.
At the March 31 pretrial conference, the Court ordered the parties to submit their joint pretrial order ("JPTO") by April 30, 2009. Through a May 11, 2009 order, this deadline was enlarged to July 20, 2009, and the parties were directed that the JPTO "must be prepared collaboratively and meet all the requirements for such an order that are found in the Individual Rules of Practice of the assigned district judge." The parties ultimately submitted individually prepared JPTOs, in late July 2009, after the July 20 deadline had elapsed.
The Court has extended the parties' deadlines, set in the original case management order of September 17, 2008, on a number of occasions. The Court ultimately enlarged the time to complete pretrial discovery from January 16, 2009 to July 6, 2009, extended the due date of the JPTO from February 27, 2009 to July 20, 2009, and adjourned the final pretrial conference from March 3, 2009 to May 26, 2009. In a telephonic status conference held on May 26, 2009, the Court observed that the parties had not taken advantage of the additional time provided for discovery.
On May 14, 2009, Mogus filed a motion to dismiss, pursuant to Fed.R.Civ.P. 41(b), for failure of the plaintiff to prosecute this action. See Docket Entry No. 45. On June 17, 2009, Katz filed a timely response, to which Mogus did not reply. On July 27, 2009, Mogus filed a motion to strike, in its entirety, the plaintiff's June 17, 2009 submission, pursuant to Fed.R.Civ.P. 12(f). See Docket Entry No. 49. Katz did not file anything in opposition to this motion.
III. DISCUSSION
A. Motion to Dismiss for Failure to Prosecute
Fed.R.Civ.P. 41(b) provides, in relevant part, that "[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order, a defendant may move to dismiss the action. . . ." Unless otherwise provided by a court's order, a dismissal under Rule 41(b) operates as an adjudication on the merits. See Fed.R.Civ.P. 41(b). Dismissing an action with prejudice, pursuant to Fed.R.Civ.P. 41(b), is within the trial court's discretion and "is a harsh remedy to be utilized only in extreme situations." Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972). Moreover, pro se litigants, such as Katz, "should be granted special leniency regarding procedural matters." LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001). However, "while pro se litigants may in general deserve more lenient treatment than those represented by counsel, all litigants, including pro ses, 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, 124 (2d Cir. 1988).
In determining whether to dismiss an action pursuant to Fed.R.Civ.P. 41(b), the courts in this circuit consider the following factors: (1) the duration of the plaintiff's failures; (2) whether the plaintiff had been advised that further delays would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay in the litigation; (4) the balance between the court's interest in managing its docket and the plaintiff's right to due process; and (5) the efficacy of imposing a sanction less harsh than dismissal. See Romandette v. Weetabix Co., Inc., 807 F.2d 309, 312 (2d Cir. 1986) (citingHarding v. Federal Reserve Bank of New York, 707 F.2d 46, 50 [2d Cir. 1983]). Typically, none of the factors is dispositive. See Nita v. Connecticut Dep't of Envtl. Protection, 16 F.3d 482, 485 (2d Cir. 1994).
1. Duration
As noted above, when determining if dismissal is appropriate for failure to prosecute, courts consider: (a) whether the failures to prosecute were entirely those of the plaintiff; and (b) whether these failures were of significant duration. See U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 255 (2d Cir. 2004). Delays may warrant dismissal after merely a matter of months or a period of years. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42-43 (2d Cir. 1982).
While retained, Klein, the plaintiff's former counsel, failed to initiate three telephonic conferences, as ordered by the Court. This prompted the Court to order the plaintiff to show cause why a report and recommendation should not be submitted to your Honor, advising that you dismiss the case. The plaintiff did not respond to the Court's order. Shortly thereafter, the plaintiff, now proceeding pro se, failed to participate in a scheduled telephonic conference. As a consequence of the plaintiff's neglect of scheduled conferences, the Court could not confer jointly with the parties for three and one-half months, between December 16, 2008, and March 31, 2009.
The plaintiff contends his former attorney did not notify him about the March 16, 2009 conference, after his suspension from practicing before this court. However, "[f]or the purposes of this analysis, delays are viewed as being caused by plaintiff's 'side as a whole,' such that a plaintiff's failings are imputed to its attorney and vice versa." Europacific Asset Management Corp. v. Tradescape, Corp., 233 F.R.D. 344, 351 (S.D.N.Y. 2005) (citing Drake, 375 F.3d at 255).
While the plaintiff was the sole cause of that delay, the failure to prosecute this action is not "wholly attributable" to the plaintiff. See Sanders v. Does, No. 05 Civ. 7005, 2008 WL 2117261, at *3 (S.D.N.Y. May 15, 2008). Defendant Mogus delayed this case substantially by filing three frivolous motions to dismiss shortly after the action was transferred to this judicial district, in September 2007. The Court could not hold an initial pretrial conference with the parties, to fashion a case management plan, until Mogus' motions were resolved, nearly one year after the transfer was effected. Additionally, Mogus's unavailability led to the cancellation of one telephonic conference.
Thus, in light of this reality and the fact that "three months is not necessarily a delay of 'significant duration,'" Kent v. Scamardella, No. 07 Civ. 844, 2007 WL 3085438, at *2 (S.D.N.Y. Oct. 18, 2007) (citing Spencer v. Doe, 139 F.3d 107, 113 [2d Cir. 1998]), the first factor in the Rule 41(b) analysis does not counsel in favor of dismissal.
2. Notice
A district court must give a pro se plaintiff a specific warning that failure to comply with litigation obligations will result in dismissal of the complaint. See Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).
The Court reminded both parties, through an order, dated October 25, 2007, that failure to comply with court orders could result in "the imposition of a sanction." The Court also advised the plaintiff, in two orders, dated October 17, 2007, and March 17, 2009, that his failure to comply with court orders may result in a report and recommendation to your Honor that the complaint be dismissed. On January 13, 2009, the Court ordered the plaintiff to show cause why such a report and recommendation should not be issued.
The Court finds that Katz received sufficient notice that his failure to prosecute this action could result in the dismissal of his complaint.
3. Prejudice
The plaintiff has a duty to prosecute his case with due diligence. See Lyell Theatre Corp., 682 F.2d at 43. A strong policy favoring the prompt disposition of cases exists. Id. "Prejudice to defendants resulting from unreasonable delay may be presumed, . . . but in cases where delay is more moderate or excusable, the need to show actual prejudice is proportionally greater. . . . ." Id. (internal citations omitted). The presumption of prejudice is rebuttable. See Drake, 375 F.3d at 257.
Mogus contends, since Katz decided to proceed pro se, he has received "nothing" by way of discovery from the plaintiff. Mogus alleges further that the plaintiff did not respond to his "half dozen" attempts to correspond regarding their JPTO. Mogus provides no evidence to support his contentions, which are disputed by the plaintiff, but, again, with no evidentiary support. Regarding the discovery disputes, the Court enlarged the time for pretrial discovery activities to be completed several times, and most recently observed that neither party had taken advantage of the additional time provided. Additionally, the Court is now in receipt of the parties' individually prepared proposed JPTOs. See Jackson v. City of New York, 22 F.3d 71, 75 (2d Cir. 1994) (noting that dismissal for failure to prosecute was "incorrect[]" because,inter alia, "[w]hen dismissed, the case was in its final pre-trial stages").
Mogus has not shown how the delay caused by the plaintiff has prejudiced his case. He has not indicated to the Court that the plaintiff's delay "increases the likelihood that evidence in support of [his] position will be lost and that discovery and trial will be made more difficult." See Shannon v. General Elec. Co., 186 F.3d 186, 195 (2d Cir. 1999).
4. Balancing the Court's Docket and the Plaintiff's Due Process Interests
In weighing dismissal, a court must consider whether the plaintiff's delay "impacted the trial calendar or otherwise impeded the court's work," Drake, 375 F.3d at 257, and whether the plaintiff "received sufficient notice and a fair opportunity to be heard" on the issue of dismissal. Shannon, 186 F.3d at 195.
On the one hand, the plaintiff's failure to comply with three scheduling orders did not impact greatly on the Court's ability to manage its docket. Yet, dismissal would not deny the plaintiff his due process rights, as he has been granted several enlargements of time to litigate his case and was ordered, on January 13, 2009, to show cause why his case should not be dismissed. The plaintiff never responded to that order, which served as sufficient notice and as an opportunity to be heard.
5. Efficacy of Lesser Sanctions
The Court must determine, after a careful assessment of the circumstances, whether a sanction(s) less harsh than dismissal would remedy any prejudice the defendant has suffered as a result of the plaintiff's failure to comply with court orders. See Drake, 375 F.3d at 257. However, since the Court has found that Mogus was not prejudiced by Katz's conduct, it does not need to consider this factor.
Considering the aforementioned factors in light of the record as a whole, granting Mogus' motion to dismiss, for failure to prosecute, is not warranted.
B. Motion to Strike
In his memorandum of law in support of his motion, Mogus contends the plaintiff's June 17, 2009 submission is "not [a] legal rebuttal," but rather, "a personal harangue" against Mogus and his family that is "[r]edundant, immaterial, impertinent, scandalous, and [] insufficient." Specifically, Mogus takes issue with the plaintiff's criticism of Mogus' spelling and education, and suggestions that he is unemployed. Mogus also takes umbrage at the plaintiff's mention of Mogus' mother "in an official document." Mogus argues that the submission "humiliate[s] and defame[s]" him. The plaintiff did not file anything in opposition to Mogus' motion.
Fed.R.Civ.P. 12(f) provides that a court may "strike from a pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Rule 12(f) "allows a court to strike pleadings only." Granger v. Gill Abstract Corp., 566 F. Supp. 2d 323, 334 (S.D.N.Y. 2008) (emphasis added). Pleading are complaints, answers, cross- and counterclaims. See Fed.R.Civ.P. 7(a); see also Granger, 566 F. Supp. 2d at 334-35 (recommending denial of pro se plaintiff's motions to strike the defendants' cross-motion for summary judgment motion and supporting papers), Burns v. Bank of Am., No. 03 Civ. 1685, 2007 WL 1589437, at *11 (S.D.N.Y. June 4, 2007) ("[T]he reply brief and accompanying materials of which the plaintiffs complain is not a pleading, and thus is not properly the subject of a motion under Rule 12[f]."). Even if the Court were to construe Mogus' motion as invitation to consider the propriety of relying on the plaintiff's submission, "the proper remedy . . . would be to disregard the materials for purposes of the motion, rather than to strike them. . . ." Id.
Mogus has moved to strike the plaintiff's submission filed in opposition to Mogus' motion to dismiss. This submission is not a pleading, see Fed.R.Civ.P. 7(a), and, thus, may not be the subject of a Rule 12(f) motion. In any event, the Court has not considered the portions of the plaintiff's submission that Mogus considers problematic.
No basis exists, that justifies granting Mogus' request to strike the plaintiff's June 17, 2009 submission.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that Mogus' motion to dismiss, for failure of the plaintiff to prosecute this action, and motion to strike, Docket Entry Nos. 45 and 49, respectively, be denied.
* * *
N.B. Any unpublished opinion to which citation has been made is being provided to the plaintiff and defendant Mogus with a copy of this report and recommendation.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable P. Kevin Castel, 500 Pearl Street, Room 2260, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007.Any requests for an extension of time for filing objections must be directed to Judge Castel. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).