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finding failure to prosecute where over four months had elapsed since plaintiff appeared at conference and plaintiff "ha[d] not taken any steps to prosecute this action" since
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02 Civ. 9741 (KMW)(FM)
November 6, 2003
REPORT AND RECOMMENDATION TO THE HONORABLE KIMBA M. WOOD
For the reasons set forth below, I recommend that the defendants' motion pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure be granted, and that this action be dismissed for want of prosecution.
Facts
Pro se plaintiff Rachael Kearney, a/k/a Rachel Parham ("Kearney"), commenced this suit by filing a complaint on December 9, 2002. (Docket No. 1). In her complaint, Kearney alleges that the City of New York and the New York City Department of Correction ("DOC") unlawfully discriminated against her in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). The defendants subsequently answered the complaint on or about June 2, 2003. (See Decl. of Eric Eichenholtz, Esq., dated Oct. 7, 2003 ("Eichenholtz Decl."), ¶ 3).
On June 26, 2003, I held a conference at which I set a discovery schedule. I directed both parties to serve their document requests on or before July 18, 2003, that responses to those requests be served on or before August 15, 2003, and that all fact discovery be completed by September 19, 2003. Additionally, I scheduled a telephone conference for September 23, 2003. (Id Ex. B (Order dated June 27, 2003)). The defendants served their first set of interrogatories and document requests on July 17, 2003. (Id. ¶ 5). To date, Kearney has not responded to the defendants' discovery requests, nor has she made any discovery demands of her own. (Id. ¶¶ 6, 8, 14).
On July 25, 2003 defendants' counsel, Eric Eichenholtz, Esq., sent Kearney a letter, which stated that she had not complied with my discovery order and requested that she contact him if she intended to serve any discovery requests. (Id. ¶ 6 Ex. C). Kearney did not respond to this letter. (Id. ¶ 7). Counsel sent Kearney a second similar letter on August 22, 2003, again receiving no response. (Id. ¶¶ 8, 9 Ex. D).
On September 23, 2003, Mr. Eichenholtz attempted to initiate the previously-scheduled conference call using the phone number Kearney had provided to the defendants and the Court, but reached a recorded message indicating that the number had been disconnected. (Id. ¶ 11). Accordingly, by memorandum endorsement dated September 23, 2003, I directed the defendants to make a motion, on or before October 7, 2003, to dismiss this action for want of prosecution. (Docket No. 9).
On or about September 24, 2003, Eichenholtz managed to contact Kearney using a cellular phone number provided by DOC. (Eichenholtz Decl. ¶¶ 12, 13). When she was asked whether she intended to continue with her lawsuit, Kearney informed Eichenholtz that she wished to proceed against Jaqueline Borges, her DOC supervisor, who is neither an employer within the meaning of Title VII nor a defendant in this action. (Id. ¶ 13). Eichenholtz warned Kearney that she risked dismissal of her action if she failed to take steps to prosecute her case, and suggested that she contact the Court. (Id. On October 7, 2003, the defendants served and filed their motion to dismiss this action, which was returnable November 1, 2003. (Docket Nos. 10, 11). To date, neither Eichenholtz nor the Court has heard from Kearney. (See Eichenholtz Decl. ¶ 13).
Conclusion
Kearney has not taken any steps to prosecute this action since she appeared at the June 26, 2003 conference. I therefore recommend that the defendants' motion be granted, and that this case be dismissed.
Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Kimba M. Wood, United States District Judge, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Wood. Any failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn. 474 U.S. 140 (1985); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).