Opinion
14 Civ. 3597 (JPO)(HBP)
10-05-2015
ROBBIE THOMAS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
Copies mailed to: Mr. Robbie Thomas 145 Claridge Street Elmont, New York 11003 Mr. Robbie Thomas 145 Claridge Avenue Elmont, New York 11003 Mr. Robbie Thomas c/o Access Staffing 25 Melville Park Road Melville, New York 11747 Mr. Robbie Thomas Inmate No. E-106761 Bergen County Jail 160 South River Street Hackensack, New Jersey 07601 Caleb Hayes-Deats, Esq. Assistant United States Attorney Southern District of New York Third Floor 86 Chambers Street New York, New York 10007
REPORT AND RECOMMENDATION
:
TO THE HONORABLE J. PAUL OETKEN, United States District Judge,
This action is brought under the Federal Tort Claims Act and arises out of an alleged automobile accident. The action was commenced on May 20, 2014. Approximately six months after the action was commenced, plaintiff's counsel sought to withdraw, primarily on the ground that she had been unable to communicate with plaintiff. Counsel's application to withdraw was granted on December 4, 2014. Since that time, plaintiff has done nothing to prosecute the case, and the action appears to be abandoned.
On July 17, 2015, I issued an Order to plaintiff that provided, in pertinent part:
IF PLAINTIFF WISHES TO PURSUE THIS CASE, HE MUST CONTACT THE UNDERSIGNED WITHIN THIRTY (30) DAYS OF THE
DATE OF THIS ORDER, CONFIRM THAT HE WISHES TO PURSUE THE CASE AND PROVIDE ACCURATE CONTACT INFORMATION. IF I DO NOT HEAR FROM PLAINTIFF WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER IT IS MY INTENTION TO ISSUE A REPORT AND RECOMMENDATION RECOMMENDING THAT THE ACTION BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO PROSE-CUTE.(Order dated July 17, 2015 (Docket Item 18) (capitalization and boldface type in original)). Copies of the foregoing Order were sent to four different addresses believed to be associated with plaintiff; only one copy has been returned as undeliverable.
The Order was sent to the following addresses: Mr. Robbie Thomas
Plaintiff has not responded to My July 17, 2015 Order, nor has he contacted my chambers in any way. In light of the foregoing, I respectfully recommend that the action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b). See Brow v. City of New York, 391 F. App'x 935, 936-37 (2d Cir. 2010) (up-holding dismissal for failure to prosecute after a "delay of nearly six months"). There has been no activity by plaintiff to prosecute the matter since its commencement, and plaintiff has not responded to my order seeking confirmation that he remains interested in prosecuting this matter. If this inaction is due to some circumstance that is truly beyond plaintiff's control, a dismissal without prejudice will permit plaintiff to re-file his action and assert his rights.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable J. Paul Oetken, United States District Judge, 40 Foley Square, , Room 2101, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, Room 750, New York, New York 10007. Any requests for an extension of time for filing objec- tions must be directed to Judge Oetken. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); 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, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-238 (2d Cir. 1983). Dated: New York, New York
October 5, 2015
Respectfully submitted,
/s/_________
HENRY PITMAN
United States Magistrate Judge
Copies mailed to: Mr. Robbie Thomas
145 Claridge Street
Elmont, New York 11003
Mr. Robbie Thomas
145 Claridge Avenue
Elmont, New York 11003
Mr. Robbie Thomas
c/o Access Staffing
25 Melville Park Road
Melville, New York 11747
Mr. Robbie Thomas
Inmate No. E-106761
Bergen County Jail
160 South River Street
Hackensack, New Jersey 07601
Caleb Hayes-Deats, Esq.
Assistant United States Attorney
Southern District of New York
Third Floor
86 Chambers Street
New York, New York 10007
145 Claridge Street Elmont, New York 11003 Mr. Robbie Thomas 145 Claridge Avenue Elmont, New York 11003 Mr. Robbie Thomas c/o Access Staffing 25 Melville Park Road Melville, New York 11747 Mr. Robbie Thomas Inmate No. E-106761 Bergen County Jail 160 South River Street Hackensack, New Jersey 07601 Only the copy sent to the Bergen County jail was returned as undeliverable.