Opinion
02 Civ. 3129 (DAB) (RLE)
October 2, 2002
Ellyn M. Axelband, Matamoras, PA, Pro se Plaintiff.
E. Johan Lubbe, Jackson Lewis Schnitzler Krupman, White Plains, NY, for defendant.
REPORT AND RECOMMENDATION
I. INTRODUCTION
On April 23, 2002, pro se plaintiff Ellyn M. Axelband ("Axelband") filed this action pursuant to the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112-12117, against Kolmar Laboratories ("Kolmar") alleging failure to accommodate and unlawful termination. On May 21, 2002, this Court scheduled a conference at which counsel for Kolmar appeared, but explained they had never been served with the complaint. The Court issued an order to show cause why Axelband failed to serve the defendant, and informed her that failure to do so would result in dismissal. Axelband did not serve the defendants. For the reasons which follow, I respectfully recommend that Axelband's case be DISMISSED WITHOUT PREJUDICE.
II. BACKGROUND
Axelband worked for Kolmar and alleges she suffered with disabilities in her thumbs and wrists. See Complaint at 3 (hereinafter "Compl."). She alleges that she met with the human resources department at Kolmar which, among other things, encouraged her to quit or go out on Workman's Compensation. See Compl. at 4. She declined to do both, and subsequently received three letters from the human resources department before being fired. Id. Axelband filed a charge with the New York State Division of Human Rights and the Equal Employment Opportunity Commission on or about July 12, 1999. Id. She was issued a Right to Sue letter on or about February 28, 2002. Id.Axelband filed a complaint in this action on April 23, 2002, alleging violations of the ADA. Id. at 1. On August 26, 2002, this Court ordered Axelband to show cause why she had not served the defendants by September 16, 2002. Axelband did not respond, nor has she served the defendants.
III. DISCUSSION
The district court has the discretion to dismiss cases for a lack of prosecution pursuant to Federal Rule of Civil Procedure 41(b). Lukensow v. Harley Cars of New York , 124 F.R.D. 64, 66 (S.D.N.Y. 1989) ( citing Harding v. Fed. Reserve Bank of New York , 707 F.2d 46 (2d Cir. 1983)). "A District Court may, sua sponte, dismiss an action for lack of prosecution." Id. ( citing Link v. Wabash R. Co. , 370 U.S. 626 (1962)). The Second Circuit, however, has added a caveat to this discretionary power, cautioning that dismissal under Rule 41(b) "is a harsh remedy and is appropriate only in extreme situations." Lucas v. Miles , 84 F.3d 532, 535 (2d Cir. 1996) ( citing Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988). Dismissal should be determined in "light of the whole record." Id. The Second Circuit has further advised district courts to "be especially hesitant to dismiss for procedural deficiencies where . . . the failure is by a pro se litigant." Id. ( citing Minnette v. Time Warner , 997 F.2d 1023, 1027 (2d Cir. 1993)).
Accordingly, the Second Circuit has established factors to be considered in determining whether a pro se litigant's case should be dismissed for lack of prosecution under Rule 41(b) as follows: "(1) the duration of the plaintiff's failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are 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." Id. ( citing Jackson v. City of New York , 22 F.3d 71, 74-76 (2d Cir. 1994) and Alvarez, 839 F.2d at 932).
In the instant case, it has been more than five months since Axelband filed the complaint and she still has not served the defendants. In an order dated August 26, 2002, she was notified that failure to respond to the order to show cause why she had not served the defendants would result in dismissal. The deadline passed almost three weeks ago and Axelband has failed either to serve defendants or otherwise contact the Court. Further delay of the proceedings would prejudice the defendant, and would unnecessarily impact on the Court's docket. The Court finds that dismissal without prejudice under 41(b) is warranted.
IV. CONCLUSION
Axelband has failed to prosecute his case. The undersigned therefore recommends that the case be DISMISSED WITHOUT PREJUDICE.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Richard Conway Casey, 500 Pearl Street, Room 1950, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn , 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services , 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. § 636 (b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).