Opinion
99 Civ. 9311 (SAS).
November 3, 2000.
OPINION AND ORDER
Antonios A. Alevizopoulos and Associates, Inc. ("Alevizopoulos") and Peter Amoruso and Associates, Inc. ("Amoruso") have sued Comcast International Holdings, Inc. and Comcast Corporation (collectively "Comcast") alleging tortious interference with contract and conspiracy to breach fiduciary duty. Alevizopoulos and Comcast have settled their dispute and Alevizopoulos' claims against Comcast have been dismissed with prejudice. See 10/27/00 Stipulation of Dismissal with Prejudice. Comcast now moves to dismiss Amoruso's claims pursuant to Federal Rules of Civil Procedure 41(b), 16(f), 37(b)(2), and 37(d). For the following reasons, Amoruso's Complaint against all defendants is dismissed.
I. Background
The background of this case is largely set forth in Antonios A. Alevizopoulos and Assocs., Inc. v. Comcast Int'l Holdings, Inc., 100 F. Supp.2d 178, 180-82 (S.D.N.Y. 2000). Only the facts relevant to this motion will be reviewed.
This action was removed from New York State Supreme Court on August 30, 1999. In a Scheduling Order dated March 22, 2000, the Court ordered that depositions be concluded by July 7, 2000, and that discovery be completed by October 2, 2000. See 9/27/00 Affidavit of Gregory G. Ballard, counsel for Comcast, in Support of Dismissal ("Ballard Aff.") ¶ 2; 3/22/00 Scheduling Order, Ex. A to Ballard Aff., at 1-2. On June 6, 2000, Comcast noticed the deposition of Peter Amoruso for June 21, 2000. See Ballard Aff. ¶ 3. Plaintiffs neither objected to this date nor moved for a protective order. See id. ¶ 4. Mr. Amoruso never appeared for the deposition. See id. ¶ 5.
During a status conference held on September 12, 2000, Comcast raised two significant concerns: (1) whether Amoruso exists as a separate entity; and (2) assuming it does not, whether Mr. Amoruso could pursue the action in his individual capacity as this Court might lack jurisdiction over such a claim. See 9/12/00 Transcript, Ex. B to Ballard Aff., at 5-7. To resolve these concerns, the Court ordered Mr. Amoruso to submit an affidavit regarding his residency and citizenship by September 18, 2000.See 9/14/00 Scheduling Order, Ex. C to Ballard Aff., ¶ 6 1. Mr. Amoruso never submitted the requested affidavit. See Ballard Aff. ¶ 8.
During the September 12, 2000 status conference, the Court was informed that neither Mr. Alevizopoulos nor Mr. Amoruso were deposed by the July 7, 2000 deadline. The Court extended the deadline to September 29, 2000, but warned plaintiffs that a motion to dismiss for failure to prosecute would be entertained if Mr. Amoruso failed to comply with the Court's deposition deadline. See 9/12/00 Transcript, Ex. B to Ballard Aff., at 10. Mr. Amoruso did not appear for deposition by the September 29, 2000 deadline. See Ballard Aff. ¶ 9.
Amoruso's lawyer has advised the Court that Mr. Amoruso has ignored repeated requests to comply with the Court's orders regarding the requested affidavit and his deposition. See Ballard Aff. ¶ 10; 9/20/00 Letter from Plaintiffs' Attorney Allan A. Joseph ("Joseph Letter") at 1 ("Mr. Amoruso has not responded to any correspondence nor has he made any effort to return calls to our office."). As a result, plaintiffs' counsel requested permission to withdraw from representing Amoruso. See Joseph Letter at 2. During a telephone conference on September 25, 2000, plaintiffs' counsel reported that the last response received from Mr. Amoruso was that he was "too busy" to talk to his attorney and that he would get back to his attorney "at his convenience." Ballard Aff. ¶ 11.
On September 27, 2000, Comcast filed this Motion to Dismiss and served it on plaintiffs. Amoruso had until October 12, 2000 to submit its opposition papers. Neither the Court nor Comcast has received any opposition papers or a request for an extension.
On October 19, 2000, the Court left a message on Mr. Amoruso's voicemail requesting that he telephone Chambers to discuss the prosecution of his case. Mr. Amoruso did not respond to the Court's phone call.
II. Discussion
A. Rule 41(b)
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a district court to dismiss an action when a plaintiff fails "to prosecute or to comply with . . . any order of the court." Although "dismissal is a harsh remedy and is appropriate only in extreme situations," Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), a district court's order of dismissal will be reviewed only for abuse of discretion. See Shannon v. General Elec. Co., 186 F.3d 186, 193 (2d Cir. 1999).
The Second Circuit has set forth five factors to be considered in evaluating a Rule 41(b) motion: (1) the duration of the plaintiff's failure to prosecute; (2) whether the plaintiff 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 court judge has taken care to strike a balance between alleviating court calendar congestion and protecting plaintiff's rights to due process and a fair chance to be heard; and (5) whether the judge has adequately assessed the efficacy of lesser sanctions. See id. at 193-94;Jackson v. City of New York, 22 F.3d 71, 74 (2d Cir. 1994).
1. Duration of Plaintiff's Failure to Prosecute
Plaintiff has failed to prosecute this case for nearly four months. Successful motions for failure to prosecute usually consist of longer delays. See, e.g., Chira v. Lockheed Aircraft Corp., 634 F.2d 664 (2d Cir. 1980) (affirming dismissal under Rule 41(b) where plaintiff failed to prosecute for six months);Peters-Turnbull v. Board of Educ. of the City of New York, No. 96 Civ. 4914, 1999 WL 959375, at *2-*3 (S.D.N.Y. Oct. 20, 1999) (stating that delay of between five and ten months "falls comfortably within the time frames found sufficient in successful Rule 41(b) motions to dismiss"). However, there is no "magic number." Copeland v. Rosen, 194 F.R.D. 127, 132 (S.D.N.Y. 2000). In extreme circumstances, a district court may dismiss a complaint for relatively short delays. See Lucas, 84 F.3d at 535 (stating that it is possible that a delay of thirty-nine days could be considered significant); Maiorani v. Kawasaki Kisen K.K., Kobe, 425 F.2d 1162, 1163 (2d Cir. 1970) (affirming Rule 41 (b) dismissal where plaintiff sought two-day adjournment on day of trial).
This case presents extreme circumstances warranting dismissal. Amoruso has prosecuted this case with extreme indolence. Mr. Amoruso has failed to comply with two separate, court-ordered deposition deadlines. He has failed to provide an affidavit necessary to determine whether this Court has jurisdiction over Mr. Amoruso in his individual capacity. He has even failed to respond to this motion. Mr. Amoruso has never provided any reasonable explanation for his complete inaction and willful disregard of this Court's orders. To excuse Mr. Amoruso's delay here would be to ignore the fact that "when delays are `multiplied over and over for one reason or another in one case after another, as [they] surely [are] and would be once the bar realizes that deadlines mean nothing, the net result is the build-up of a paralyzing backlog of pending cases.'" Peart v. City of New York, 992 F.2d 458, 462 (2d Cir. 1993) (alterations in original) (quoting Harding v. Federal Reserve Bank of New York, 707 F.2d 46, 52 (2d Cir. 1983) (MacMahon, J., concurring)).
2. Notice That Further Delays Would Result in Dismissal
On three occasions, Mr. Amoruso was put on notice that further delays would warrant dismissal of Arnoruso's Complaint. First, at the September 12, 2000 status conference, the Court notified Mr. Amoruso, through his attorneys, that failure to comply with the Court's second deposition deadline would result in dismissal for failure to prosecute. Second, on October 19, 2000, the Court attempted to reach Mr. Amoruso by telephone but he did not return the Court's telephone call. Third, "[t]his motion to dismiss for failure to prosecute also provided plaintiff with notice that any further delay would result in the dismissal of [its] case." Smith v. Human Resources Admin. of New York City, No. 91 Civ. 2295, 2000 WL 307367, at *2 (S.D.N.Y. Mar. 24, 2000). Although "no one [Rule 41(b)] factor is dispositive," Shannon, 186 F.3d at 194, inexcusable disregard for a judge's warning justifies dismissal, even when the delay is brief. See Lucas, 84 F.3d at 535 ("Indeed, had [plaintiff] received . . . a warning [that failure to comply would result in dismissal], it is difficult to imagine how dismissal for unexplained non-compliance [of thirty-nine days] could be an abuse of discretion.").
3. Prejudice to Defendants
"Prejudice to defendants resulting from an unreasonable delay may be presumed, but in cases where delay is more moderate or excusable, the need to show actual prejudice is proportionately greater." Lyell Theater Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982) (internal citations omitted) Here, the prejudice caused by Mr. Arnoruso's inaction is significant. Comcast has been unable to depose Mr. Amoruso and does not know whether Amoruso or Mr. Amoruso, suing in his individual capacity, can properly bring suit in federal court. Lacking such information makes it difficult, if not impossible, to defend the lawsuit. Defendants should not be forced to bear the expense of defending a lawsuit when the plaintiff has shown little or no interest in pursuing that lawsuit.
4. Balancing Court's Congestion With Plaintiff's Due Process
Dismissing Amoruso's claims against Comcast does not result in a violation of due process. Mr. Amoruso has had ample opportunity to prosecute this case and to be heard. Mr. Amoruso could have been heard on this motion but has squandered that opportunity by failing to submit opposition papers. The efficient administration of judicial affairs — a consideration vital to the Court's ability to provide meaningful access to other litigants — depends on the Court's overseeing its docket and guaranteeing that its cases progress with appropriate speed. See Lyell Theater Corp., 682 F.2d at 42; Chira, 634 F.2d at 668 ("Burgeoning filings and crowded calendars have shorn courts of the luxury of tolerating procrastination."). Furthermore, this case does not present the situation in which the Court is "impos[ing] a penalty upon the client for [its] attorney's misconduct." See Peart, 992 F.2d at 462. Rather, it is the client's misconduct that has precipitated this dismissal.
The fact that Alevizopoulos is represented by the same attorneys as Amoruso, and that Alevizopoulos complied with the Court's orders and even settled its case with Comcast, makes it plain that blame for this delay lies with Amoruso, not its attorneys.
5. Consideration of Lesser Sanctions
Lesser sanctions are not appropriate in this case. Although the Court is mindful of the Second Circuit's caution that "a district judge should employ . . . [Rule 41(b) dismissal] only when [she] is sure of the impotence of lesser sanctions," Chira, 634 F.2d at 665, Mr. Amoruso has proven repeatedly that no lesser sanction would change his behavior and inspire him to prosecute this case diligently. Mr. Amoruso has repeatedly failed to abide by the Court's orders, even when the Court has granted him extensions and second chances. "A court need not beg a party to comply with its orders." Peters-Turnbull, 1999 WL 959375, at *3., Mr. Amoruso's failure to respond to this motion demonstrates that he has lost interest in this case.
Having considered each of the relevant factors, there is no doubt that dismissal of Amoruso's claims against Comcast is appropriate.
C. Rules 16(f), 37(b)(2), and 37(d)
Comcast also moves to dismiss Amoruso's claims pursuant to Federal Rules of Civil Procedure 16(f), 37(b)(2), and 37(d), which authorize the imposition of sanctions — including dismissal — for a party's failure to comply with a scheduling order, to obey an order of discovery, or to appear at a deposition. Because the Court is dismissing the claims of Amoruso pursuant to Rule 41(b), it is unnecessary to address Comcast's other grounds for dismissal. Nonetheless, there is little doubt that these alternative grounds warrant dismissal for the very same reasons discussed above.
III. Conclusion
For the foregoing reasons, Comcast's motion to dismiss is granted with prejudice.
SO ORDERED: