Opinion
18-CV-9990 (PGG) (OTW)
06-04-2021
VICTOR ORTIZ, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
REPORT AND RECOMMENDATION
ONA T. WANG, United States Magistrate Judge
To the Honorable PAUL G. GARDEPHE, United States District Judge:
The Court has provided Plaintiff with multiple warnings that his case risked dismissal for failure to prosecute.
On December 9, 2019, in response to the City of New York's Valentin response identifying seven officers with addresses for service, I ordered Plaintiff to amend the complaint by January 10, 2020. I warned that if Plaintiff failed to amend “the Court may recommend that the case be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b).” (ECF 23). I further directed Plaintiff to provide the Court with an updated mailing address and warned that “[f]ailure to keep the Court apprised of current contact information may be deemed a failure to prosecute.” (ECF 23). This order was mailed to the address on the docket, but was returned as undeliverable.
On February 26, 2020, I again ordered amendment and an updated address be provided by March 27, 2020. I warned that failure to do so may result in “my recommending dismissal for failure to prosecute.” (ECF 26). This order was mailed to the address on the docket, but was again returned as undeliverable.
On April 2, 2020, for the third time, I ordered that if “Plaintiff does not file an amended complaint by September 1, 2020, Defendants may file a motion to dismiss for failure to prosecute under Federal Rule of Civil Procedure 41(b).” (ECF 27). The Defendants served a copy of the order to the address provided by Plaintiff's parole officer, 1365 Fifth Ave, Apt. 17B, New York, NY 10027. (ECF 29, 30).
Finally on October 14, 2020, I directed Plaintiff to show cause in writing by November 4, 2020, why “I should not recommend dismissing this case for failure to prosecute” and warned that “[f]ailure to respond will result in a recommendation of dismissal.” (ECF 31). This was mailed to the address on the docket as well as to the 1365 Fifth Ave, New York, NY address, and were both returned as undeliverable. To date Plaintiff has not responded and despite multiple orders directing Plaintiff to amend his complaint and update his address and warnings that failure to do so may result in dismissal of his action, Plaintiff has neither amended his complaint nor updated his address.
It is Plaintiff's responsibility to keep the Court informed of any change of address or risk dismissal for failure to prosecute. See, e.g., Laney v. Ramirez, No. 10-CV-9063 (JGK), 2011 WL 6594491, at *1 (S.D.N.Y. Dec. 22, 2011) ("[A] case cannot proceed without a current address for the plaintiff and the failure to maintain such an address with the Court is a ground for failure to prosecute."); Holmes v. State of New York Office of Court Admin., No. 00-CV-7871 (LAP) (AJP), 2001 WL 5035, at *1 n.1 (S.D.N.Y. Jan. 2, 2001), report and recommendation adopted ECF 7 (Jan. 25, 2001) (citing cases).
Accordingly, because Plaintiff has failed to comply with multiple Court orders and has failed provide an updated address to the Court, I recommend that the action be DISMISSED without prejudice for failure to prosecute under Rule 41(b).
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In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable Paul G. Gardephe, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Gardephe.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (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 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
The Clerk of Court is respectfully directed to serve a copy of this Order to the pro se Plaintiff at the address on the docket and to 1365 Fifth Ave, Apt. 17B, New York, NY 10029.