Opinion
1:20-CV-01493 (TWD)
02-01-2022
THOMAS P. R., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
THOMAS P. RONDEAU Plaintiff, pro se U.S. SOCIAL SECURITY ADMIN OFFICE OF THE GENERAL COUNSEL Counsel for Defendant RONALD W. MAKAWA Special Assistant U.S. Attorney
THOMAS P. RONDEAU Plaintiff, pro se
U.S. SOCIAL SECURITY ADMIN OFFICE OF THE GENERAL COUNSEL Counsel for Defendant
RONALD W. MAKAWA Special Assistant U.S. Attorney
DECISION AND ORDER
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This matter is presently before the Court to consider whether this action, which is an appeal from an unfavorable determination of the Social Security Administration regarding Plaintiff's disability, should be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure based upon pro se Plaintiff's failure to prosecute. Defendant has moved for dismissal. (Dkt. No. 21.) For the reasons that follow, the Court grants Defendant's Motion to Dismiss (Dkt. No. 21) and dismisses Plaintiff's complaint (Dkt. No. 1) with prejudice.
II. PROCEEDINGS TO DATE
Plaintiff commenced this action pro se on December 4, 2020, pursuant to 42 U.S.C. §405(g) for review of an adverse decision of the Commissioner of Social Security (“Defendant” or “Commissioner”). (Dkt. No. 1.) Plaintiff also filed an application to proceed in forma pauperis (“IFP”). (Dkt. No. 3.) The Clerk provided Plaintiff with a copy of the Court's Pro Se Handbook, Local Rules, and Notice, along with General Order 18. (Dkt. Nos. 4, 5.) A Consent to the Jurisdiction of the Magistrate Judge was also filed. (Dkt. No. 6.) On December 8, 2020, the Court issued a Text Order granting Plaintiff's IFP Application. (Dkt. No. 7.)
The Commissioner filed the Certified Administrative Record and Transcript (“Record”) on July 15, 2021, and served the Record on Plaintiff as directed by the Court. (Dkt. Nos. 17, 18.) As such, Plaintiff's brief was due by August 30, 2021. (See Dkt. Nos. 5, 17.)
When Plaintiff's brief was not received by the due date, the Court issued a Text Order on August 31, 2021, which extended sua sponte Plaintiff's deadline to file his brief to September 30, 2021, and advised Plaintiff that his failure to submit a brief may result in consideration of the Record without Plaintiff's arguments and his action may be dismissed with prejudice. (Dkt. No. 19.) The Text Order further stated that in the event Plaintiff “fails to submit a brief, the defendant may file a motion to dismiss for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b), and the action may be dismissed with prejudice on the basis of the plaintiff's failure to file a brief.” Id.
Thereafter, when Plaintiff again did not file his brief as directed, the Court issued a Text Order directing Defendant to file a motion to dismiss for failure to prosecute, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure by November 15, 2021. (Dkt. No. 20.)
On November 12, 2021, Defendant filed the pending motion to dismiss for failure to prosecute. (Dkt. No. 21.) Plaintiff was directed to file his response to Defendant's motion by December 3, 2021. Id. However, as of the date of this Decision and Order, Plaintiff has failed to file a response to the motion, and Plaintiff has also failed to file a brief, or request an extension of any of the deadlines set by the Court. Plaintiff has also failed to contact the Court with any further information; he has not indicated he intends to prosecute this case; and he has not otherwise communicated with the Clerk regarding this action.
III. DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure states that, “[i]f 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 claims against it.” Fed.R.Civ.P. 41(b); see also Link v. Wabash R.R. Co., 370 U.S. 626 (1962). This power to dismiss may be exercised when necessary to achieve orderly and expeditious disposition of cases. See Freeman v. Lundrigan, No. 95-CV-1190, 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996). Courts have also recognized that Rule 41(b) does not abrogate a district court's inherent power to dismiss a complaint, sua sponte, for failure to prosecute. See Saylor v. Bastedo, 623 F.2d 230, 238-39 (2d Cir. 1980). However, “[d]ismissal is a harsh remedy and is appropriate only in extreme situations, ” and “district courts should be especially hesitant to dismiss for procedural deficiencies where . . . the failure is by a pro se litigant.” Saundvallee B. v. Berryhill, No. 5:17-CV-0867 (LEK), 2019 WL 2210595, at *1 (N.D.N.Y. May 22, 2019) (citing Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). It is also well-settled that the term “these rules” in Rule 41(b) refers not only to the Federal Rules of Civil Procedure but also to the local rules of practice for a district court. See Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006).
In Social Security cases, General Order 18, under the heading “ NOTIFICATION OF THE CONSEQUENCES OF FAILING TO FILE A BRIEF AS REQUIRED BY PARAGRAPH C. (1)(A-D) ” (emphasis in original), provides that an “[a]ction may be dismissed with prejudice on the basis of the plaintiff's failure to file a brief.” (See Dkt. No. 5.) Local Rule 41.2 also provides that “Whenever it appears that the plaintiff has failed to prosecute an action or proceeding diligently, the assigned judge shall order it dismissed.” L.R. 41.2(a).
When considering a dismissal for failure to prosecute under Rule 41(b), the Court must consider five factors: (1) the duration of the plaintiff's failure to comply with the court order (or the court's procedural rules); (2) whether plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendant is 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. Lucas, 84 F.3d at 535 (citations omitted); United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). No. one factor is dispositive. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 210 (2d Cir. 2001); Nita v. Connecticut Dep't of Environmental Protection, 16 F.3d 482, 485 (2d Cir. 1994). Furthermore, although “a decision to dismiss stands a better chance on appeal if the appellate court has the benefit of the district court's reasoning” on each of the five factors, we do not “require the [district] court to discuss the factors on the record.” LeSane, 239 F.3d at 209.
In considering the duration of Plaintiff's failure to prosecute his claim, this first factor weighs in favor of dismissal because Plaintiff has taken no action on this case since submitting a letter to the Court on December 18, 2020, regarding his attached Social Security documentation containing the Appeals Council's unfavorable determination. (Dkt. No. 11.) The Court notes that Local Rule 41.2(a) states that “the plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution.” N.D.N.Y. L.R. 41.2(a). Upon review of the docket, it appears that Plaintiff has failed to file anything subsequent his letter on December 18, 2020. (Dkt. No. 11.) Plaintiff provided no further contact with the Court either in person, by telephone, or by letter, and the Court provided him with two opportunities to file a brief and he did not do so. (See Dkt. Nos. 17, 19.) The Court warned Plaintiff that failure to file a brief may result in dismissal of the action with prejudice. (Dkt. No. 19.) Despite Plaintiff being given an extension of time and opportunities to file a brief, Plaintiff has not followed the Court's Orders and directives to do so. Plaintiff's inaction on this case since December 18, 2020, constitutes a failure to prosecute of significant duration. See Jiminez v. Astrue, No. 09-CV-50S, 2010 WL 419982, at *2 (W.D.N.Y. Jan. 29, 2010) (“Six months is a failure of significant duration.”); Lopez v. Catholic Charities of Archdiocese of N.Y., No. 00-CV-1247, 2001 WL 50896, at *3 (S.D.N.Y. Jan. 22, 2001) (dismissing under Rule 41(b) where “plaintiff has failed to take any steps to prosecute this action for at least three months”). Accordingly, the Court finds the first factor weighs in favor of dismissal.
“The Second Circuit requires that the plaintiff receive adequate notice that the case could be dismissed due to inaction.” Folk v. Rademacher, No. 00-CV-199S, 2005 WL 2205816, at *4 (W.D.N.Y. Sept. 9, 2005) (citing Martens v. Thomann, 273 F.3d 159, 180-81 (2d Cir. 2001)); see also Nolan v. Primagency, Inc., No. 07 Civ. 134, 2008 WL 1758644, at *3 (S.D.N.Y. Apr. 16, 2008) (“The Second Circuit has held that where a court puts a plaintiff on notice that the court is considering dismissal, and a plaintiff fails to file a document explaining the failures and outlining why the action should not be dismissed, this element has been met.”) (citing Shannon v. General Elec. Co., 186 F.3d 186, 194-95 (2d Cir. 1999)); Europacific Asset Mgmt. Corp. v. Tradescape, Corp., 233 F.R.D. 344, 353 (S.D.N.Y. 2005) (“A court's prior warning of dismissal, and subsequent inaction by a plaintiff, weighs in favor of dismissal.”). Here, Plaintiff failed to contact the Court or file a brief or request an extension after being given opportunities to do so by the Court. As noted above, Plaintiff was specifically notified by the Court's August 31, 2021, Text Order that his failure to file a brief would result in dismissal. (Dkt. No. 19.) Therefore, the second factor weighs in favor of dismissal.
Prejudice “may be presumed as a matter of law in certain cases, but the issue turns on the degree to which the delay was lengthy and inexcusable.” Drake, 375 F.3d at 256 (citing Lyell Theatre Corp. v. Loews Corp., 682 F.3d 37, 43 (2d Cir. 1982)). The third factor also weighs in favor of dismissal, as Plaintiff's further delay is likely to prejudice Defendant who has filed the required documents in accordance with General Order 18 and as directed by the Court. (Dkt. Nos. 17, 18, 21.) Due to Plaintiff's unexplained inaction of over one year, prejudice to Defendant is presumed. Therefore, the third factor also weighs in favor of dismissal.
The Second Circuit has stated “there must be compelling evidence of an extreme effect on court congestion before a litigant's right to be heard is subrogated to the convenience of the court.” Lucas, 84 F.3d at 535-36. “Nonetheless, fairness to other litigants, whether in the same case or merely in the same court as competitors for scarce judicial resources may warrant a dismissal under Rule 41(b).” Rubin v. Abbott Labs., 319 F.R.D. 118, 121 (S.D.N.Y. 2016). The Rubin Court also stated that Courts in that district “have held that calendar congestion outweigh a plaintiff's opportunity to be heard when the plaintiff has rebuffed opportunities to be heard.” Id. (citations omitted). Here, the Court finds that the need to alleviate congestion on the Court's docket and move cases toward trial, outweighs Plaintiff's right to receive a further chance to be heard in this case. It is the need to monitor and manage cases such as this when one party refuses to participate that delays the resolution of other cases, and that contributes to the Second Circuit's relatively long median time to disposition for Social Security cases.
Finally, the Court has carefully considered sanctions less drastic than dismissal of Plaintiffs complaint and finds them to be inadequate under the circumstances. See Smith v. Human Res. Admin. of N.Y.C, No. 91-CV-2295, 2000 WL 307367, at *3 (S.D.N.Y. Mar. 24, 2000) (“[L]esser sanctions are not appropriate in this case [because] [c]ourt orders and direction have not prompted plaintiff to move her case forward.”). Additionally, Plaintiff is proceeding IFP, therefore “rendering monetary sanctions inappropriate.” Id.
Accordingly, based upon Plaintiffs failure to comply with directives from the Court or to file a brief, and after considering the factors relevant to a dismissal under Rule 41(b) of the Federal Rules of Civil Procedure, the Court finds dismissal of Plaintiff s complaint is warranted.
WHEREFORE, it is hereby
ORDERED that Defendant's motion to dismiss (Dkt. No. 21) is GRANTED, and Plaintiffs complaint (Dkt. No. 1.) is DISMISSED WITH PREJUDICE for failure to prosecute; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Decision and Order in accordance with the Court's Local Rules, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
IT IS SO ORDERED.