Opinion
02 Civ. 6790 (DAB) (RLE).
July 1, 2003.
Keith Harding, Pro Se Plaintiff.
Kimberly Ann Dasse, Assistant Attorney General, Attorney for Defendant.
REPORT AND RECOMMENDATION
I. INTRODUCTION
On August 26, 2002, pro se plaintiff Keith Harding ("Harding") filed a complaint pursuant to 42 U.S.C. § 1983, alleging violations of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment, and state law negligence claims, against sixteen individual defendants. Because Harding has failed to pursue his claim by participating in discovery, and because he failed to comply with the Court's two orders to show cause, I respectfully recommend that the above-entitled action be DISMISSED with prejudice for failure to prosecute.
II. BACKGROUND
On January 7, 2003, defendants filed a motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Harding filed a response to the motion on February 13, 2003, and defendants filed a reply one week thereafter. On January 14, 2003, the Court set a discovery deadline of May 16, 2003, and ordered that discovery continue pending resolution of the motion.
On April 7, 2003, defendants' counsel submitted a letter indicating that Harding failed to appear for a scheduled deposition on April 4, 2003. See Letter from Attorney Kimberly Ann Dasse, dated April 7, 2003. Defendants' counsel asserts that she called Harding's home at the time of the deposition and spoke to his mother, who said she did not know Harding's whereabouts. Id. Harding allegedly told counsel three days later that he had been home at the time, and had tried to contact her. Id. However, defendants' counsel did not receive any messages, nor did Harding provide a satisfactory explanation for his failure to appear. Id. According to defendants, Harding also failed to provide medical authorizations or responses to other document requests and interrogatories, which defendants needed prior to the deposition.
On April 14, 2003, the Court issued an Order directing Harding to show cause by April 25, 2003, why he should not be required to pay the costs associated with his failure to appear for the deposition. The Court also ordered Harding to submit to a deposition by May 8, 2003, and to produce discovery responses by the earlier of April 22, 2003, or one week prior to his deposition.
On April 23, 2003, defendants informed the Court that they rescheduled Harding's deposition for April 29, 2003. See Letter from Attorney Kimberly Ann Dasse, dated April 23, 2003. However, on or about April 21, 2003, Harding informed defendants that he would be unable to provide his medical records by the April 22, 2003 deadline, but indicated he expected to receive them on April 24, 2003. Id. Defendants consented to a two day delay, but noted to the Court that Harding did not respond to defendants' other outstanding requests, as per the Court's order. Id. In light of Harding's delay, the Court accommodated the parties by extending the discovery deadline to June 16, 2003, to allow defendants time to review Harding's records and responses once they arrived, and to produce an expert report. In an April 27, 2003 letter to the Court, Harding stated that he would be unable to provide the discovery responses by the April 22, 2003 deadline, due to "Bronx-Lebanon-Hospital Policy," but stated that with defendants' consent, he would produce responses by May 5, 2003. See Letter from Harding, dated April 27, 2003.
On May 20, 2003, defendants requested permission to move to dismiss the action pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure. See Letter from Attorney Kimberly Ann Dasse, dated May 20, 2003. According to defendants, on April 28, 2003, Harding informed them that he had all medical records and discovery responses, but wanted to wait in order to send them all at once. Id. Defendants had scheduled his deposition for April 29, 2003, but reset it for May 15, 2003, based upon Harding's promise to produce the belated discovery. Id.
Defendants, however, have not received any responses to discovery requests. Harding also failed to appear at the May 15, 2003 deposition. Id. Defendants' counsel waited at the deposition site and called Harding's mother, who did not know his whereabouts. After forty-five minutes, counsel concluded that Harding was not going to appear. Id. Harding did not call to explain his absence, and defendants incurred another court reporter's fee. Id. He has not explained his delay in providing medical records, documents, and interrogatory responses, nor has he explained his failure to appear at two depositions. He also has not opposed any of the defendants' allegations.
On June 2, 2003, the Court issued a second Order for Harding to show cause by June 16, 2003, why he should not be sanctioned for costs incurred at his two cancelled depositions and for failure to respond to discovery requests. The Court also warned Harding that failure to comply with its Order would result in his case being dismissed for failure to prosecute. Harding has failed to respond to the Court's Order.
The Court has been unable to reach Harding by telephone, and did not receive a response to a May 23, 2003 message left with his mother at his home. On June 18, 2003, the Court placed another telephone call to his home and learned from his mother that she did in fact relay the Court's previous message to Harding. She also informed the Court that as of June 16, 2003, Harding had been taken to Riker's Island because of a probation violation.
II. ANALYSIS
Rule 41(b) of the Federal Rules of Civil Procedure provides, in relevant part, "[f]or failure of the plaintiff to prosecute or to comply with . . . any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." Under Rule 41(b), plaintiff has an obligation to diligently prosecute her case. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982); see also Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993). Thus, "[c]ompletely aside from his failure to comply with the order, a dismissal is justified for [plaintiffs] failure to prosecute at all." Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 667 (2d Cir. 1980). "A plaintiff's lack of diligence alone is enough for dismissal." West v. City of New York, 130 F.R.D. 522, 526 (S.D.N.Y. 1990).
A district court has the inherent power to dismiss a case, sua sponte, for lack of prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962); 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)). The Supreme Court explained that such authority is governed "by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R. Co., 370 U.S. at 630-31. 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). It 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 innette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)). In such cases, dismissal is warranted "when the circumstances are sufficiently extreme." Id.
Accordingly, the Second Circuit has detailed the following factors that a court should consider before dismissing a case for failure to comply with a court order:
(1) the duration of the plaintiffs 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 plaintiffs interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.Id. ; accord LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) ( citing Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d at 932. In the instant case, the record indicates consistent failures by Harding to participate in discovery. The Court's January 14, 2003 order set a deadline of May 16, 2003, and thus gave Harding ample time to engage in meaningful discovery with defendants. Defendants have responded to Harding's discovery requests, but he has not reciprocated, nor has he informed the Court of any reason for his unresponsiveness. Despite Harding's failures, the Court extended discovery to June 16, 2003, to allow him time to provide the discovery responses, which he claimed were on their way, and to allow defendants time to review those responses prior to taking his deposition and designating an expert. Harding continually failed to disclose his medical records and responses to interrogatories and document requests. He did not appear for two scheduled depositions and did not explain those absences. The Court has not received any communication from Harding since his April 27, 2003 letter, and he has failed to return telephone messages.
In light of this Court's April 14, 2003 Order directing Harding to show cause why he should not pay defendants for costs incurred by his failure to appear and produce documents, it is evident that the Court adequately considered a sanction less drastic than dismissal. See Lucas v. Miles, 84 F.3d at 535. Harding failed to respond both to that Order and to the Court's June 2, 2003 Order to show cause why he should not be further sanctioned. The second Order put him on notice that failure to comply by June 16, 2003, would result in his case being dismissed. Id. (requiring the district court to weigh this factor, among others, in dismissing pro se plaintiff). Defendants have been prejudiced by Harding's repeated failures to appear and to disclose overdue discovery responses, given the fees incurred at each cancelled deposition. Harding did not provide any explanation or justification for his inaction, and it is clear that further delays of this nature will require defendants to incur additional costs. Furthermore, Harding's failures have necessitated frequent Court intervention, and dismissal would effectively balance the Court's need to manage its docket against Harding's interest in prosecuting his case. Id. Accordingly, the Court concludes that the circumstances are sufficiently extreme to warrant dismissal of the action with prejudice.
III. CONCLUSION
Based upon the foregoing reasons, I respectfully recommend that Harding's claim be DISMISSED with prejudice for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedures;
Pursuant to Rule 72 of the 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 Deborah A. Batts, 500 Pearl Street, Room 2510, 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).