Opinion
No. 00 CV 3144 (GBD).
May 18, 2005
MEMORANDUM DECISION AND ORDER
Defendants moved, pursuant to Fed.R.Civ.P. 56, for summary judgment dismissing the third amended complaint. As a result of plaintiffs' failure to respond to the summary judgment motion, defendants moved, pursuant to Fed.R.Civ.P. 41(b), to dismiss the complaint for failure to prosecute, or in the alternative granting defendants summary judgment. The motion to dismiss for lack of prosecution is granted and the complaint is dismissed with prejudice.
This matter was initially referred to Magistrate Judge Michael H. Dolinger for discovery disputes. On December 12, 2001, it was referred to him for all general pretrial purposes. On August 5, 2002, defendants moved for summary judgment. On September 18, 2002, two days after plaintiffs' time to file opposition papers had expired, plaintiffs sought an extension of time, until October 21, 2002. This Court granted plaintiffs' belated application. By letter dated November 1, 2002, eleven days after plaintiffs' extension of time to file their papers had expired, plaintiffs sought another extension of time, until December 30, 2002, to file their opposition. Despite the fact that this Court once again granted plaintiffs' untimely request, plaintiffs failed to file any responsive papers by the December 30th extended due date. Although plaintiffs sent two more letters indicating that the parties had agreed to extend the time to respond to January 31, 2003 and then to February 7, 2003, no response was ever submitted.
On July 1, 2003, defendants moved to dismiss the case for want of prosecution or, in the alternative, for summary judgment. Plaintiffs again failed to respond to this motion to dismiss, nor did they request an extension of time in which to do so. Although the motions were referred to the magistrate judge for a Report and Recommendation, that reference is hereby revoked.
The Court is vested with the authority to dismiss an action for failure to prosecute. Dodson v. Runyon, 86 F.3d 37, 39 (2d Cir 1996); Fed.R.Civ.P. 41(b). An involuntary dismissal for failure to prosecute operates as an adjudication upon the merits. Fed.R.Civ.P. 41(b). Dismissal is a harsh sanction which should only be employed in the most extreme circumstances. United States ex. rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 251 (2d Cir. 2004). In determining whether the district court's dismissal of an action for want of prosecution was an abuse of discretion, the Second Circuit Court of Appeals examines "whether: (1) the plaintiff's failure to prosecute caused a delay of significant duration; (2) plaintiff was given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser sanctions." Id. at 254 (citations omitted). This Court has carefully considered the factors identified by the Second Circuit. Dismissal of the action, as oppose to imposing a lesser sanction, is appropriate particularly in light of the pending dispositive summary judgment motion.
The duration of plaintiffs' failures to actively litigate this matter is significant. As a result of defendants moving to dismiss the action for failure to prosecute, plaintiffs had adequate and ample notice that their inaction would likely result in dismissal. Even after the motion to dismiss for failure to prosecute was filed, plaintiffs chose to ignore these proceedings, consistent with their prior conduct with respect to the motion for summary judgment. In an effort to afford plaintiffs an opportunity to litigate this matter on the merits, this Court granted plaintiffs two extensions of time to respond to defendants' summary judgment motion. After affirmatively requesting numerous extensions, plaintiffs chose not to avail themselves of these opportunities. Additionally, plaintiffs' belated actions in seeking extensions of time, after the court-ordered filing date had lapsed, exhibit an indifference to the litigation of this matter. Plaintiffs' dilatory conduct is further evidenced by the fact that they failed to file any opposition papers with regard to the motion to dismiss for want of prosecution, nor have they offer any explanation for their failure to do so. Given the fact that the events giving rise to this action allegedly occurred in 2000, plaintiffs' significant and inexcusable delay in litigating this matter has worked to the detriment of defendants. Drake, 375 F.3d at 256 ("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.") Peart v. City of New York, 992 F.2d 458, 462 (2d Cir. 1993) (observing that delay would likely result in witnesses being unavailable or their recollection of events diminished). Instead of diligently prosecuting their case, plaintiffs' inaction in this case for such a significant period of time can only be interpreted as an abandonment of this cause of action. In light of the unexplained and inordinate delay by plaintiffs in litigating this action, dismissal with prejudice for failure to prosecute is an appropriate sanction.
Defense counsel was also copies on several letters to the Court regarding the two pending motions and has failed to respond to them.
Accordingly, defendants' motion to dismiss the action for failure to prosecute is granted. The third amended complaint is dismissed with prejudice and the case is hereby closed.
SO ORDERED.