Opinion
20-CV-3345 (LTS) (OTW)
12-09-2022
JARED J. GROGAN, Plaintiff, v. NEW YORK UNIVERSITY and NYU IN ABU DHABI CORPORATION, Defendants.
To the Honorable LAURA T. SWAIN, United States District Judge:
REPORT & RECOMMENDATION
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE
After settling this case at mediation, ECF 61, Plaintiff apparently never executed a signed settlement agreement. (ECF 68). Accordingly, Plaintiff's counsel filed a motion to withdraw on September 26, 2022, citing “a complete breakdown in communication among Plaintiff and [counsel].” (ECF 67 at 2). Plaintiff's counsel attempted to serve their withdrawal papers, ECF Nos. 65-67, at Plaintiff's last known address, but all were returned as undeliverable. (ECF 74). Plaintiff has also not returned counsel's emails. (ECF 74).
On November 2, 2022, I granted Plaintiff's counsel's motion to withdraw as counsel. (ECF 75). I further ordered Plaintiff to file a letter informing the Court whether he is appearing pro se or if he has retained new counsel, and to update his address with the Court if he did choose to appear pro se. Additionally, I warned Plaintiff that if he failed to respond to that Order, I may recommend dismissal for failure to prosecute.To date, Plaintiff has not responded to that Order, nor made any further communication with the Court.
The Court notes that it has previously recommended dismissal for Plaintiff's failure to prosecute the case. (See ECF 10, recommending dismissal for failure to prosecute where Plaintiff did not timely serve Defendants nor respond to Court's Orders). After Judge Swain adopted the Court's recommendation and dismissed the case without prejudice (ECF 11), Plaintiff sought to re-open the action, citing health issues and the Covid-19 pandemic as justification for his delays in effectuating service. (ECF 13). Judge Swain granted Plaintiff's request and reopened the action in light of Plaintiff's thenpro se status and health issues. (ECF 16).
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-CV-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-CV-622, 2017 WL 4477062 (S.D.N.Y. Oct. 5, 2017).
Here, Plaintiff has failed to move the case forward by failing to keep the court apprised of his current address and failing to meet judicial deadlines. 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.