Opinion
18-CV-6640 (GBD) (KHP)
03-19-2020
SANDY K. LAL, Plaintiff, v. NORTHLAND INSURANCE CO., et al., Defendants.
ORDER
KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE FROM: KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Pro se Plaintiff Sandy K. Lal, commenced this action to recover damages arising from a botched renovation of his apartment. Defendants have not been served and have not appeared. Plaintiff has been warned by the Court that failure to serve Defendants or to otherwise prosecute the case would result dismissal. Nevertheless, Plaintiff has failed to file affidavits of service as ordered or to appear at three status conferences. For the following reasons, this Court respectfully recommends sua sponte dismissal of this case for failure to prosecute.
BACKGROUND
Plaintiff asserts state law breach of contract and unjust enrichment claims against Defendant Northland Insurance Co. (“Northland”), an insurance company, and J.T. Shannon Lumber Company, Inc. (“J.T. Shannon”), a flooring provider. In August 2016, Plaintiff replaced the flooring in his home which subsequently cracked. Plaintiff asserts that Defendant Northland improperly denied him coverage, and he also asserts that Defendant J.T. Shannon is liable because the flooring was allegedly defective.
Plaintiff filed this action on July 24, 2018 asserting claims against five Defendants, some whom are New York domiciliaries and some of whom are not. Because diversity jurisdiction appeared to be lacking, the Court ordered Plaintiff to show cause as to why the case should not be dismissed for lack of subject matter jurisdiction. Plaintiff then sought permission to amend his complaint to proceed only against defendants Northland and J.T. Shannon, neither of whom are domiciled in New York. On November 15, 2018, the Court granted Plaintiff's request to amend his complaint and ordered him to promptly serve the amended complaint on Northland and J.T. Shannon. Plaintiff filed his amended complaint on November 30, 2018. After 90 days, no affidavit of service was filed with the Court. On March 12, 2019, the Court directed Plaintiff to file a declaration by no later than March 18, 2019 stating whether Plaintiff had served Defendants. Plaintiff failed to do so. On March 26, 2019, the Court directed the Clerk of Court to issue new summons to the Defendants. The Court also ordered Plaintiff to serve Defendants within 90 days of the issuance of the summons. Plaintiff was warned that if he did not do so within those 90 days, the Court could recommend dismissal of his claims. The summons were issued on March 27, 2019. Plaintiff failed to follow the Court's instruction and did not serve Defendants. For sake of clarity, on June 25, 2019, the Court directed Plaintiff to file a declaration stating whether Plaintiff served Defendants. Plaintiff ignored the Court's order. Additionally, Plaintiff failed to appear for conferences scheduled on July 11, 2019, October 29, 2019, and December 18, 2019.
ANALYSIS
Under Rule 41(b), a court may dismiss an action “[i]f the plaintiff fails to prosecute or to comply with [the] rules or a court order.” Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (alteration in original) (quoting Rule 41(b)); see also 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)) (explaining that a district court has the authority under Rule 41(b) to dismiss a plaintiff's case sua sponte for failure to prosecute). Although a pro se litigant's claims may be dismissed for failure to prosecute, such dismissal is only warranted “when the circumstances are sufficiently extreme.” Baptiste, 768 F.3d at 217 (quoting LeSane, 239 F.3d at 209).
Before dismissing a case pursuant to Rule 41(b), courts must consider 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.” Id. at 216 (citation omitted). No single factor is dispositive. Id.; see Harding v. Goord, 135 Fed.Appx. 488 (2d Cir. 2005) (affirming dismissal of action where pro se plaintiff repeatedly refused to comply with discovery demands and court orders); Brown v. Pulgarin, No. 17-CV-1677 (VSB) (KHP), 2018 WL 5723120, at *2 (S.D.N.Y. 2018) (adopting report and recommendation dismissing pro se plaintiff's complaint for failure to prosecute after he failed to comply with court-ordered deadlines); Peters v. Department of Corr. of New York City, 306 F.R.D. 147 (S.D.N.Y. 2015) (dismissing pro se plaintiff's complaint after he failed to oppose defendant's motion for summary judgment, despite having multiple deadline extensions).
Here, upon weighing the factors, dismissal is appropriate. As to the first factor, the Court has specifically ordered Plaintiff to serve the Defendants four times since November 2018. Plaintiff has failed to do so through the present day. The Court ordered Plaintiff to file a declaration stating whether Plaintiff had served Defendants four times. Plaintiff has failed to do so. There is still no affidavit of service on the docket. With respect to the second factor, the Court warned Plaintiff that failure to comply could lead to dismissal. Thus, Plaintiff has been put on notice of the consequences of failing to comply. As to the third factor, the Court finds that Defendants have been, and will continue to be, prejudiced by Plaintiff's unreasonable and unexplained delay. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982) (“Prejudice to defendants resulting from unreasonable delay may be presumed....” (citation omitted)); see also Dones v. Smalls, No. 17-CV-6038 (JPO), 2018 WL 4211314, at *1 (S.D.N.Y. Sept. 4, 2018) (finding prejudice where the action was “stayed indefinitely due to Plaintiff's absence” and where defendants “could not reasonably proceed” in the litigation). To the extent that Defendants could be brought into the action, Defendants have been deprived of the chance of conducting discovery closer in time to the incident in question. Thus, Defendants will be prejudiced by further delay. With respect to the fourth factor, although Plaintiff may have an interest in being heard, he relinquished that opportunity by failing to litigate this action. See Dones, 2018 WL 4211314, at *1. Plaintiff has had multiple chances to be heard, including three conferences that he missed without excuse. The Court has extended the deadline to serve Defendants three times in order for Plaintiff to be heard. Finally, as to the fifth factor, a monetary sanction would not be appropriate here.
Here, because there is no indication that Plaintiff will comply with the Court's orders and litigate this action in good faith, the circumstances are sufficiently extreme to justify dismissal. See id. at *2 (citations omitted). Accordingly, this Court respectfully recommends that Plaintiff's complaint be dismissed for failure to prosecute pursuant to Rule 41(b).
The Clerk of Court is respectfully directed to mail a copy of this Report & Recommendation to the pro se Plaintiff.
NOTICE
Plaintiff shall have seventeen days from the service of this Report and Recommendation to file written objections 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)). Defendants shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure.
If Plaintiff files written objections to this Report and Recommendation, Defendants may respond to Plaintiff's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Alternatively, if Defendants file written objections, Plaintiff may respond to such objections within seventeen days after being served with a copy. Fed.R.Civ.P. 72(b)(2); see also Fed.R.Civ.P. 6(a), (d). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres 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 Torres. 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).