Opinion
No. 04 Civ. 6039 (PKC)(KNF).
June 8, 2006
REPORT AND RECOMMENDATION
TO THE HONORABLE P. KEVIN CASTEL, UNITED STATES DISTRICT JUDGE
On May 12, 2006, counsel to the defendants advised the Court that the plaintiff had not complied with the Court's previously issued orders directing him to respond to the defendants' discovery demands. The Court was also advised that the plaintiff failed to appear on the date and at the time scheduled for his deposition. In an order dated May 25, 2006 ("May 25 Order"), the Court directed the plaintiff to show cause, in writing, why the undersigned magistrate judge should not make a report and recommendation to your Honor that the action be dismissed due to his failure to prosecute the action and to comply with the Court's discovery orders. The plaintiff did not respond to that directive.
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a district court to dismiss a plaintiff's complaint for failure to prosecute an action or for failure to comply with an order of the court. See LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001); Lucas v. Miles, 84 F.3d 532, 534-35 (2d Cir. 1996). In the instant action, the plaintiff has failed to comply with several court orders. Moreover, the plaintiff has not submitted anything to the Court in an attempt to show good cause for his failure to comply with those orders. The plaintiff's failures have prejudiced the defendants because,inter alia, they have not been able to secure information they need from the plaintiff to assess his claims and prepare their defense. The plaintiff should not be allowed to frustrate the defendants efforts to defend against his claims or to delay unnecessarily the resolution of this action. The plaintiff's misconduct warrants the dismissal of his complaint pursuant to Fed.R.Civ.P. 41(b).
RECOMMENDATION
For the reasons set forth above, I recommend that the instant action be dismissed.
FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable P. Kevin Castel, 500 Pearl Street, Room 2260, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Castel. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (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, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).