Opinion
18 Civ. 3717 (RA) (GWG)
03-25-2022
DESHAWN DANIELS, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Deshawn Daniel filed this lawsuit on April 26, 2018. See Docket # 1. On January 18, 2022, plaintiff's counsel, Gregory Antollino, wrote to the Court seeking to withdraw because Daniel had terminated his representation. See Letter from Gregory Antollino, filed Jan. 18, 2022 (Docket # 97). This Court ordered Antollino to file a motion to withdraw and scheduled a telephonic hearing on the motion for February 15, 2022. See Order of January 19, 2022 (Docket # 98). The order directed plaintiff Daniel to dial in to this hearing and stated that “[i]f plaintiff Daniel[] fails to dial in to this hearing, he is warned that his claims may be dismissed.” Id. ¶ 4. The order also directed Antollino to undertake efforts to ensure Daniel was aware of the Court's order, and Antollino filed an affidavit detailing those efforts. See Supplemental Affidavit of Gregory Antollino, filed Jan. 31, 2022 (Docket # 102). Daniel did not attend the February 15, 2022 hearing.
As explained by the Second Circuit in a decision on this matter, “Daniel's lawyer erroneously referred to his client as Deshawn Daniels when he initially filed this case, and the district court's case caption therefore reflects this error.” Smalls v. Collins, 10 F.4th 117, 130 n.7 (2d Cir. 2021).
The Court scheduled a second hearing on the motion to withdraw for March 2, 2022. See Order of February 15, 2022 (Docket # 104). This order similarly directed Daniel to dial in to this hearing and stated that “[i]f plaintiff Daniel[] fails to dial in to this hearing, he is warned that his claims may be dismissed.” See id. Antollino filed a certificate of service indicating that he provided Daniel with a copy of the Court's order. See Certificate of Service, filed February 22, 2022 (Docket # 105). Daniel did not dial in to the March 2, 2022 hearing. Antollino confirmed at the March 2, 2022 hearing that he had spoken to Daniel and that Daniel stated that he would not dial in to the hearing.
The Court then issued an order requiring plaintiff to show cause why this case should not be dismissed for failure to prosecute, setting a deadline of March 16, 2022 for plaintiff's response. See Order to Show Cause, filed March 2, 2022 (Docket # 107). That order again warned plaintiff that “[f]ailure to respond to this order to show cause may by itself result in the case's dismissal for failure to prosecute.” Id. at 2. Daniel did not file any response to the order to show cause.
Fed. R. Civ. P. 41(b) provides in relevant part:
If the plaintiff fails to prosecute . . . or to comply with a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision . . . operates as an adjudication on the merits.
A decision to dismiss an action for failure to prosecute “may be made sua sponte.” Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998) (citing Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)). Although dismissal is “‘a harsh remedy to be utilized only in extreme situations, '” Hoefer v. Bd. of Educ. of the Enlarged City Sch. Dist. of Middletown, 820 F.3d 58, 64 (2d Cir. 2016) (quoting Jackson v. City of N.Y., 22 F.3d 71, 75 (2d Cir. 1994)), “the authority to invoke it for failure to prosecute is vital to the efficient administration of judicial affairs and provides meaningful access for other prospective litigants to overcrowded courts, ” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). The “court should not have to beg the parties before it to litigate the cases they initiate.” McLean v. City of N.Y., 2007 WL 415138, at *4 (S.D.N.Y. Feb. 6, 2007). A district court has the authority “under Fed.R.Civ.P. 41(b) to dismiss a complaint for failure to comply with a court order, treating the noncompliance as a failure to prosecute.” Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962), and Harding v. Fed. Reserve Bank of N.Y., 707 F.2d 46, 50 (2d Cir. 1983)); see also Caussade v. United States, 293 F.R.D. 625, 629 (S.D.N.Y. 2013) (“Dismissal for lack of prosecution or for failure to comply with an order of the court is a matter committed to the discretion of the district court.”) (citing Link, 370 U.S. at 633). And “while pro se litigants may in general deserve more lenient treatment than those represented by counsel, all litigants, including [those proceeding pro se], have an obligation to comply with court orders.” McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988). “[D]ismissal of a pro se litigant's action as a sanction may . . . be appropriate ‘so long as a warning has been given that noncompliance can result in dismissal.'” Koehl v. Bernstein, 740 F.3d 860, 862 (2d Cir. 2014) (per curiam) (quoting Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994) (per curiam)).
A district court considering a dismissal pursuant to Rule 41(b) must weigh five factors:
(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.Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (per curiam) (internal quotation marks omitted) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). No single factor is dispositive. Id. (citation omitted).
These factors strongly counsel in favor of dismissal. First, Daniel has failed to comply with three separate court orders: 1) the order requiring him to attend the February 15, 2022 hearing, see Order of January 19, 2022, 2) the order requiring him to attend the March 2, 2022 hearing, see Order of February 15, 2022, and 3) the order directing him to show cause by March 16, 2022 why his case should not be dismissed, see Order to Show Cause. These failures began more than two months ago and remain ongoing. This period of inaction has placed this lawsuit at a standstill and strongly counsels in favor of dismissal. Even “a short delay by the plaintiff may still properly result in dismissal if [plaintiff] had willfully failed to comply with multiple court orders during the course of the action.” Feurtado v. City of N.Y., 225 F.R.D. 474, 479 (S.D.N.Y. 2004); see Gilmer v. Garland Co., 2021 WL 6694598, at *2 (D. Conn. Apr. 19, 2021) (dismissal where pro se plaintiff had failed for two months to respond to his counsel's motion to withdraw); Middleton v. United States, 2011 WL 7164452, at *5 (E.D.N.Y. June 28, 2011) (delay of one month favored dismissal where plaintiff had missed several court conferences and failed to comply with court orders), adopted by 2012 WL 394559 (E.D.N.Y. Feb. 7, 2012); Martin v. City of N.Y., 2010 WL 1948597, at *2 (S.D.N.Y. May 11, 2010) (plaintiff failed to comply with discovery orders for two and a half months). Because plaintiff has failed to attend required Court hearings and has not filed any response to the order to show cause, the Court has been offered no explanation for his conduct.
Second, plaintiff was warned multiple times that failure to comply with Court orders could result in dismissal, but these warnings did nothing to prompt any action on his part. See Order of January 19, 2022, at 1 (“If plaintiff Daniel[] fails to dial in to this hearing, he is warned that his claims may be dismissed.”); Order of February 15th, 2022, at 1 (“If plaintiff Daniel[] fails to dial in to this hearing, he is warned that his claims may be dismissed.”); Order to Show Cause, at 2 (“Failure to respond to this order to show cause may by itself result in the case's dismissal for failure to prosecute.”). Plaintiff attended neither hearing and filed no response to the order to show cause. Accordingly, plaintiff has received three warnings that his claims may be dismissed, which is more than sufficient to justify finding that this factor weighs in favor of dismissal. See, e.g., Chavis, 2018 WL 6532865, at *4 (dismissing after two warnings); Feurtado, 225 F.R.D. at 479 (same). Indeed, one warning has been found sufficient. See George v. City of N.Y., 2013 WL 5943206, at *4 (S.D.N.Y. Nov. 6, 2013) (dismissing claims of pro se plaintiffs who had “received meaningful, non-technical notice that failure to sign the complaint would likely result in dismissal of their claims”).
As for prejudice to the defendants in this case, “[p]rejudice to defendants resulting from unreasonable delay may be presumed.” Lyell, 682 F.2d at 43. Thus, this factor also weighs in favor of dismissal.
As for the fourth factor, the Court has a strong interest in managing its docket and cannot indefinitely wait for Daniel to act. Furthermore, his “failure to comply with the court's order or make an attempt to prosecute this case dismisses his right to have the court hear his claim.” George v. Cousins Printing LLC, 2008 WL 4093057, at *2 (S.D.N.Y. Sept. 2, 2008) (citing Feurtado, 225 F.R.D. at 480).
Finally, we have no reason to believe that lesser sanctions would be effective. Daniel has failed to comply with three court orders and his failure to respond to the order to show cause has left the Court without any explanation as to why the case should not be dismissed. This lack of response reflects that waiting any additional period for plaintiff to participate in this case would be pointless. Accordingly, dismissal of this case is appropriate. See Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 178 (2d Cir. 2008) (per curiam) (“[I]n light of [plaintiff's] failure to respond to the notice threatening dismissal, it is . . . unclear that a lesser sanction would have proved effective in this case.”) (punctuation omitted).
Conclusion
For the foregoing reasons, this action should be dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute. The Clerk is requested to mail a copy of this Report and Recommendation to the plaintiff.
PROCEDURE FOR 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 have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Abrams. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).