Summary
dismissing for failure to prosecute where Plaintiff failed to communicate with court for several months and order to show cause noted that failure to respond would result in dismissal
Summary of this case from Murray v. BouckOpinion
No. 19-CV-1283 (KMK)
02-24-2020
JOSEPH L. SMITH, Plaintiff, v. WESTCHESTER COUNTY, et al., Defendants.
ORDER OF DISMISSAL
:
On November 7, 2019, the Court granted Defendants' Motion To Dismiss by Opinion & Order. (Dkt. No. 33.) The Court dismissed Plaintiff's claims without prejudice and gave Plaintiff 30 days to file an amended complaint addressing the deficiencies identified in the Opinion & Order. (Id.) On December 17, 2019, well over 30 days later, Plaintiff still had not filed an amended complaint; the Court therefore issued an Order To Show Cause directing Plaintiff to explain, within 30 days, why the Action should not be dismissed for failure to prosecute. (Dkt. No. 34.) It is now more than two months later, and Plaintiff has not responded. Accordingly, the Court dismisses the Action for failure to prosecute.
This Court has the authority to dismiss a case for failure to prosecute. See Fed. R. Civ. P. 41(b). Rule 41(b) of the Federal Rules of Civil Procedure provides that a case may be involuntarily dismissed if a plaintiff "fails to prosecute or to comply with these rules or a court order." Although Rule 41(b) expressly addresses a situation in which a defendant moves to dismiss for failure to prosecute, it has long been recognized that a district court has the inherent authority to dismiss for failure to prosecute sua sponte. See 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)).
While dismissal under Rule 41(b) is subject to the sound discretion of the district courts, see U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 250-51 (2d Cir. 2004), the Second Circuit has stated that a Rule 41(b) dismissal is a "harsh remedy to be utilized only in extreme situations," LeSane, 239 F.3d at 209 (internal quotation mark omitted) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972)). However, it has also stated that the authority to invoke dismissal 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).
Before exercising its discretionary authority to dismiss for failure to prosecute, a district court should consider the following factors:
[1] the duration of the plaintiff's failures, [2] whether plaintiff had received notice that further delays would result in dismissal, [3] whether the defendant is likely to be prejudiced by further delay, [4] whether the district judge has take[n] care to strik[e] the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard . . . and [5] whether the judge has adequately assessed the efficacy of lesser sanctions.Hardimon v. Westchester County, No. 13-CV-1249, 2014 WL 2039116, at *1 (S.D.N.Y. May 16, 2014) (alterations in original) (quoting LeSane, 239 F.3d at 209). No single factor is dispositive. See LeSane, 239 F.3d at 210; Hardimon, 2014 WL 2039116, at *1.
The Court concludes that these factors weigh in favor of dismissal of this Action. When the Court dismissed all of Plaintiff's claims without prejudice, Plaintiff was advised that failure to promptly file an amended complaint would result in dismissal of the case. (See Dkt. No. 33.) Nonetheless, Plaintiff has not filed such a complaint. Moreover, Plaintiff has not communicated with the Court regarding this Action since February 26, 2019, when Plaintiff filed his Application to proceed in forma pauperis ("IFP"). (See Dkt. No. 3.) The Court's Order to Show Cause, mailed to Plaintiff on December 17, 2019, indicated that Plaintiff's failure to show cause within 30 days would result in dismissal with prejudice without further notice. (Dkt. No. 34.)
Accordingly, Plaintiff's case is dismissed with prejudice for failure to prosecute. See, e.g., Mena v. City of New York, No. 15-CV-3707, 2017 WL 6398728, at *2 (S.D.N.Y. Dec. 14, 2017) (noting that "a pro se plaintiff is not exempt from complying with court orders and must diligently prosecute his case"); Capogrosso v. Troyetsky, No. 14-CV-381, 2015 WL 4393330, at *5 (S.D.N.Y. July 17, 2015) (finding the fact that the plaintiff "has not responded to efforts to contact her" weighs in favor of dismissal for failure to prosecute); Savatxath v. City of Binghamton, No. 12-CV-1492, 2013 WL 4805767, at *1 (N.D.N.Y. Sept. 9, 2013) (dismissing case for failure to prosecute after the plaintiff "neglected to comply with an order . . . requiring him to notify the court . . . as to why th[e] action should not be dismissed for failure to prosecute"); Smalls v. Bank of N.Y., Nos. 05-CV-8474, 07-CV-8546, 2008 WL 1883998, at *4 (S.D.N.Y. Apr. 29, 2008) (dismissing case for failure to prosecute where the court received no communication from the plaintiffs for nearly two months).
The Clerk of Court is directed to mail a copy of this Order to Plaintiff. SO ORDERED. Dated: February 24, 2020
White Plains, New York
/s/_________
KENNETH M. KARAS
United States District Judge