Summary
noting a prior recommendation of dismissal by Magistrate Judge "based on plaintiff's repeated failures to appear at pretrial conferences, his failure to attempt to explain or justify his absences, and his failure to take any steps to prepare the case for trial."
Summary of this case from McLane Foodservice, Inc. v. HawkinsOpinion
99 Civ. 8792(LAK)
May 23, 2001
ORDER
Magistrate Judge Ellis directed the filing of a joint pretrial order on April 30, 2001. On April 24, 2001, this Court confirmed that order and warned that failure to comply might result in case dispositive sanctions. Nevertheless, the parties did not comply. Instead, plaintiff sought to have the Court disqualify Judge Ellis, to order certain discovery, and to extend the time for filing the pretrial order. By order dated May 1, 2001, the Court denied the discovery and recusal applications but extended the time within which to file the joint pretrial order until May 11. Moreover, it directed plaintiff to provide the defendant with a draft of the pretrial order and again warned that the failure to submit a joint pretrial order by that date could result in dispositive sanctions for any party responsible.
Instead of doing what he had been directed to do, plaintiff submitted to the Court his own unilateral version of a pretrial order, a course he sought to justify by stating that "there never was any conference to discuss disputes, issues or remedies applicable to pretrial orders of the Court." Defendant did the same, noting that plaintiff had notified the court that he does not intend to contribute to a joint pretrial order.
By order dated May 14, 2001, the Court noted that plaintiff seems determined "to prosecute this case according to his personal desires, irrespective of the directions of the Court and the rules of procedure" and directed him to show cause, on or before May 24, 2001, why the action should not be dismissed for failure to comply with the May 1 order and to cooperate in the process of preparing a joint pretrial order. Plaintiff has responded by attempting to blame defense counsel for lack of progress in this litigation and for allegedly having assumed that plaintiff would not file a pretrial order. But plaintiff tacitly acknowledges that he (1) never sent a draft pretrial order to the defendant's counsel, as he was directed to do, and (2) made no effort to cooperate with defendant's counsel in formulating a joint pretrial order as required.
Dismissal under Rule 41(b) requires a finding of wilfulness, bad faith or fault on the part of the plaintiff. See Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990); Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir. 1986). Moreover, dismissal should be ordered only after consideration of (1) the duration of the plaintiff's failure to comply with court orders, (2) the extent of plaintiff's notice that failure to comply would result in dismissal, (3) whether defendant is likely to be prejudiced by further delay, (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in being heard, and (5) whether a lesser sanction might be effective. See Shannon v. General Elec. Co., 186 F.3d 186, 193 (2d Cir. 1999).
Here, plaintiff has failed to cooperate in formulating a joint pretrial order since at least the middle of March. He has been on notice at least since May 1, 2001 that he was obliged to provide the defendant's counsel with a draft of the pretrial order in sufficient time to permit filing within the extended period allowed. He has known since at least April 24 that failure to make timely filing of the joint pretrial order might result in case dispositive sanctions, a warning that was reiterated in even more specific terms on May 1. The case already is almost two years old and would have been disposed of long ago had plaintiff cooperated. Moreover, the defendant, a former employee of the plaintiff in an immigration assistance business, appears to be in no position to engage in protracted litigation, the cost and duration of which is constantly increased by plaintiff's behavior. Nor is there any reason why plaintiff should be permitted to demand a disproportionate share of the time and efforts of a judge and a magistrate judge, to the prejudice of other litigants, by insisting upon proceeding when, as, and if the spirit moves him.
This is not the first time that the Court has considered imposing case dispositive sanctions upon the plaintiff. In a report and recommendation dated July 31, 2000, Magistrate Judge Ellis recommended dismissal of the action based on plaintiff's repeated failures to appear at pretrial conferences, his failure to attempt to explain or justify his absences, and his failure to take any steps to prepare the case for trial. The Court rejected that recommendation, expressly giving plaintiff the benefit of the doubt, in order to preserve his right to a disposition on the merits. But plaintiff's wilful and deliberate failure to comply with the May 1 order demonstrates that he has abused the opportunity thus provided, and he is not entitled to another given the lack of any indication that he would behave properly in the future or that lesser sanctions would produce the desired result. After all, plaintiff nearly had his case dismissed a year ago and then proceeded to ignore the Court's requirements despite explicit warning that this action could result in its dismissal.
Accordingly, the action is dismissed with prejudice based on plaintiff's violation of the May 1, 2001 order.
SO ORDERED.