Opinion
20-CV-0082 (LTS) (OTW)
05-05-2022
GREGORY DESTINE a/k/a/ Mrs. GoGo Destine, Plaintiff, v. ROMEO JOSEPH, Defendant.
To the Honorable LAURA T. SWAIN, United States District Judge:
REPORT & RECOMMENDATION
ONA T. WANG, United States Magistrate Judge:
On December 15, 2021, the Court held a status conference at which Plaintiff represented that discovery had been delayed in this case because they had not received necessary discovery from Defendants. (ECF 125). The next day, the Court memorialized a discovery briefing schedule and reiterated explicit instructions for defense counsel to track the mailings to pro se Plaintiff due to Plaintiff's allegations. (ECF 130). Plaintiff was directed to file a request for discovery relief by January 21, 2022 but did not. (ECF 124). In a February 18, 2022 status letter, defense counsel admitted that they did not bother to confirm that Plaintiff received their mailings-as ordered-until two months after being directed to do so. (ECF 128 at 1). Upon review, defense counsel learned that the mail had been “returned” (not rejected or refused) but did not investigate whether the return was because of a failing on their part. (ECF 128 at 1). The Court again ordered Defendants to investigate what happened to their mailings. (ECF 130). On March 29, 2022, defense counsel updated the Court that upon investigation, it is “evident” that “Plaintiff has simply been refusing our office's mailings.” (ECF 131 at 2).
On April 5, 2022, I ordered Plaintiff to show cause by April 30, 2022 why this action should not be dismissed for failure to prosecute. (ECF 133). Defense counsel was directed to mail a copy of this Order to Plaintiff and track whether the mail was delivered, received, refused, or returned. (ECF 133). Defendant did so. (ECF 134, 135).
Plaintiff has the ultimate obligation of moving the case to trial, and “[d]ismissal is warranted where there is a lack of due diligence in the prosecution of the lawsuit by [the] plaintiff.” West v. City of New York, 130 F.R.D. 522, 524 (S.D.N.Y. 1990). This obligation applies equally to plaintiffs proceeding on a pro se basis. See, e.g., Smith v. Griffen, No. 15 Civ. 622, 2017 WL 4466453, at *2-3 (S.D.N.Y. Aug. 31, 2017) ("[C]ourts in in this district routinely dismiss pro se . . . actions for failure to prosecute where, as here, [the plaintiff] fails to participate in the action or meet his obligation to provide the Court and [the defendants] with updated contact information[.]”), report and recommendation adopted, No. 15 Civ. 622, 2017 WL 4477062 (S.D.N.Y. Oct. 5, 2017).
Here, Plaintiff has failed to move the case forward by failing to meet judicial deadlines and rejecting mail necessary to litigate this case. Accordingly, I recommend that the action be DISMISSED for failure to prosecute.
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable Laura T. Swain, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Swain.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (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, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
The Clerk of Court is respectfully directed to serve a copy of this Order on the pro se Plaintiff at the address on the docket.