Opinion
18 Civ. 8574 (MKV)(GWG)
07-01-2020
BRENDA ZIMMERMAN KETTER, Plaintiff, - v. THE UNITED STATES OF AMERICA, et al., Defendants.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff Brenda Ketter brought this action pursuant to the Federal Tort Claims Act, alleging the defendants are liable for injuries she suffered as the result of a medical procedure. See Complaint, filed Sept. 19, 2018 (Docket # 2); Letter from Brenda Ketter, filed April 26, 2019 (Docket # 15). An initial pretrial conference was held before the undersigned on June 10, 2019, at which the Court instructed Ketter that she was expected to provide certain information to the defendants' attorney, including a description of her medical providers, and authorization forms that would release medical records of those providers. See Transcript of June 10, 2019 Scheduling Conference, filed July 22, 2019 (Docket # 25) (“Pretrial Conference Transcript”) at 18-21, 28-30.
On July 11, 2019, defendants moved to compel Ketter to respond to certain discovery requests. (Docket # 23). On July 12, 2019, the Court ordered Ketter to respond to defendants' motion to compel by July 22, 2019, and warned that if Ketter did “not comply with Court orders, or state[d] that she does not intend to comply with them, her case may be dismissed.” (Docket # 24 at *3) (emphasis omitted). Ketter failed to respond by the July 22, 2019, deadline. By Order dated July 29, 2019, the Court directed Ketter to respond to the defendants' interrogatories and document demands, and to provide the signed authorizations for the release of her medical records by August 16, 2019. (Docket # 27 at 1-2). The Court also reminded Ketter “that any failure to comply with court orders may result in dismissal of her case.” Id. at 2. Ketter failed to comply with the July 29, 2019, Order, and defendants sought permission to file a motion to dismiss pursuant to Rule 41(b) for failure to prosecute. (Docket # 28). On September 4, 2019, Judge Abrams granted defendants leave to file the motion to dismiss. (Docket # 30 at *4).
“*__” refers to the pagination provided by the Court's ECF system.
On September 7, 2019, defendants moved to dismiss this case for failure to prosecute. (Docket # 31). The motion was then referred to the undersigned for a Report and Recommendation. (Docket # 34). By Order dated September 9, 2019, Ketter was directed to file her opposition to the motion to dismiss by September 30, 2019, and the Court stated “that if Ms. Ketter fail[ed] to respond to the Government's motion, her failure to respond by itself w[ould] be considered by the Court to show that she does not wish to proceed with this case.” (Docket # 35 at 1). On September 25, 2019, Ketter filed a letter with the Court indicating that she had “recently consulted with the New York Legal Assistance Group for Pro Se litigants in the Southern District of New York (NYLAG), ” that she “now understand[s] what [she] need[s] to do, ” and that she had “dropped off [her] responses to Defendants' Interrogatories and Requests for Production as well as completed HIPAA waiver forms.” (Docket # 36). Ketter also requested “that the court re-open fact discovery for both Plaintiff and Defendants.” Id. The Court granted Ketter's request to reopen discovery and deemed the motion to dismiss to be withdrawn. (Docket # 38).
On September 30, 2019, shortly after defendants received Ketter's medical releases, they served a subpoena on New York Presbyterian hospital for Ketter's medical records, but the hospital requested an additional, more specialized release prior to providing the records to defendants. (Docket # 42 at *2). On November 26, 2019, defendants requested by letter that Ketter sign the specialized release. Id. On a telephone call, Ketter refused to sign the release. Id. Ketter was scheduled to be deposed by defendants on December 9, 2019, and defendants intended to again ask her to sign the specialized release form at that deposition. Id. However, despite previously confirming her attendance on both November 19, 2019 and December 6, 2019, Ketter later informed defendants by telephone - just 20 minutes prior to the scheduled deposition - that she would not be attending the deposition due to a medical appointment. Id. On December 9, 2019, in response to a letter from defendants discussing Ketter's failure to appear, the Court ordered Ketter to appear for her deposition, which was rescheduled for December 16, 2019. (Docket # 43 at *1). The Court also ordered Ketter to either file a letter indicating why the medical records sought by defendants from New York Presbyterian were not relevant, or sign the specialized release form, by December 19, 2019. Id. Ketter was “warned that her case may be dismissed for failure to prosecute” if she failed “to comply with this Order or any future Order.” Id.
On December 12, 2019, defendants confirmed with Ketter via telephone that she would appear at her rescheduled deposition on December 16, 2019. (Docket # 44 at *2). On the same phone call, Ketter indicated that she had been receiving papers in the mail from the Court as well as defendants. Id. On the morning of December 16, 2019, Ketter called defense counsel and stated she would not be appearing for her deposition later that morning, nor would she appear for her deposition at any time in the future. Id. On December 17, 2019, defendants renewed their motion to dismiss this action for failure to prosecute based on, among other things, Ketter's failure to comply with the Court's December 9, 2019, Order. Id. at *1-2.
On December 18, 2019, the Court ordered Ketter to file any opposition to defendants' renewed motion to dismiss by January 3, 2020. (Docket # 45). Ketter was “warned that failing to file any papers opposing the motion may by itself be grounds for dismissing this case.” Id. Ketter did not respond by the January 3, 2020, deadline, but the Court nonetheless gave “plaintiff one more chance to respond to the Government's motion to dismiss this case for failure to prosecute” by March 6, 2020. (Docket # 48 at *1). Ketter was “once again warned that failing to file any papers opposing the motion may by itself be grounds for dismissing this case.” Id. Ketter never filed a response, requested an extension of time to respond, or contacted the Court in any other way with regard to the defendants' renewed motion to dismiss.
Fed. R. Civ. P. 41(b) provides in relevant part:
If 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. Unless the dismissal order states otherwise, a dismissal under this subdivision . . . operates as an adjudication on the merits.
A decision to dismiss an action for failure to prosecute “may be made sua sponte.” Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998) (citing Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)). Although dismissal is “‘a harsh remedy to be utilized only in extreme situations, '” Hoefer v. Bd. of Educ. of the Enlarged City Sch. Dist. of Middletown, 820 F.3d 58, 64 (2d Cir. 2016) (quoting Jackson v. City of N.Y., 22 F.3d 71, 75 (2d Cir. 1994)), “the authority to invoke it for failure to prosecute is vital to the efficient administration of judicial affairs and provides meaningful access for other prospective litigants to overcrowded courts, ” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). The “court should not have to beg the parties before it to litigate the cases they initiate.” McLean v. City of N.Y., 2007 WL 415138, at *4 (S.D.N.Y. Feb. 6, 2007). A district court has the authority “under Fed.R.Civ.P. 41(b) to dismiss a complaint for failure to comply with a court order, treating the noncompliance as a failure to prosecute.” Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962), and Harding v. Fed. Reserve Bank of N.Y., 707 F.2d 46, 50 (2d Cir. 1983)); see also Caussade v. United States, 293 F.R.D. 625, 629 (S.D.N.Y. 2013) (“Dismissal for lack of prosecution or for failure to comply with an order of the court is a matter committed to the discretion of the district court.”) (citing Link, 370 U.S. at 633). And “while pro se litigants may in general deserve more lenient treatment than those represented by counsel, all litigants, including [those proceeding pro se], have an obligation to comply with court orders.” McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988). “[D]ismissal of a pro se litigant's action as a sanction may . . . be appropriate ‘so long as a warning has been given that noncompliance can result in dismissal.'” Koehl v. Bernstein, 740 F.3d 860, 862 (2d Cir. 2014) (per curiam) (quoting Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994) (per curiam)).
A district court considering a dismissal pursuant to Rule 41(b) must weigh five factors:
(1) the duration of the plaintiff's failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (per curiam) (internal quotation marks omitted) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). No single factor is dispositive. Id. (citation omitted).
These factors strongly counsel in favor of dismissal. Setting aside Ketter's initial failure (which was belatedly remedied) to comply with the Court's July 12, 2019 and July 29, 2019, Orders (Docket ## 24, 27), Ketter has continuously failed to comply with, or respond to, multiple Court orders since December 16, 2019, when she failed to appear for her deposition. (Docket ## 43, 45, 48). Thus, the duration of her failure to comply is lengthy. See Brow v. City of N.Y., 391 Fed.Appx. 935, 937 (2d Cir. 2010) (affirming dismissal with prejudice under Rule 41 where there was a nearly six-month delay). Ketter has been warned that failure to comply with Court orders could result in her case being dismissed on no fewer than six occasions, and was therefore undoubtedly on notice that failure to comply with Court orders could result in dismissal. (Docket ## 24, 27, 35, 43, 45, 48). Further, Ketter appeared at the initial pretrial conference in this matter, see Pretrial Conference Transcript, and has submitted a letter to the Court as directed by Court order (Docket # 36), thus demonstrating that she has previously received correspondence from the Court and is capable of complying when she chooses to do so. See also Docket # 44 at *2 (Ketter informed defendants that she was receiving correspondence from the Court and defendants). The defendants are likely to be prejudiced by Ketter's delay as witnesses' memories fade. The Court has a strong interest in managing its docket and cannot indefinitely wait for Ketter to turn her attention back to this case. Furthermore, her “failure to comply with the court's order or make an attempt to prosecute this case dismisses h[er] right to have the court hear h[er] claim.” George v. Cousins Printing LLC, 2008 WL 4093057, at *2 (S.D.N.Y. Sept. 2, 2008) (citing Feurtado v. City of N.Y., 225 F.R.D. 474, 480 (S.D.N.Y. 2004)). Finally, in light of Ketter's persistence in not complying with Court orders, the Court does not believe that any lesser sanction will succeed in altering her behavior and moving this case to a conclusion. All indications are that Ketter would ignore any order imposing a lesser sanction as well. Accordingly, dismissal of this case is appropriate. See Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 178 (2d Cir. 2008) (per curiam) (“[I]n light of [plaintiff's] failure to respond to the notice threatening dismissal, it is . . . unclear that a lesser sanction would have proved effective in this case.”) (internal quotation marks omitted); cf. Rubin v. Abbott Labs., 319 F.R.D. 118, 122 (S.D.N.Y. 2016) (“dismissal is the only adequate remedy for failure to prosecute where a plaintiff cannot be contacted, because the plaintiff would be unaware of any lesser sanction”) (collecting cases).
For the foregoing reasons, this action should be dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute. The Clerk is requested to mail a copy of this Report and Recommendation to Brenda Ketter at the address below.
PROCEDURE FOR FILING 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 have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Vyskocil. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
Ketter may file her response by email by sending it in pdf form to Temporary_Pro_Se_Filing@nysd.uscourts.gov. In the alternative, the response may be mailed to Pro Se Docketing, 500 Pearl Street, New York, NY 10007.