Opinion
21-CV-02509 (GBD) (VF)
11-03-2023
CHANDEL RICHARD HOFFMAN, Plaintiff, v. THE FEDERAL RESERVE BANK OF NEW YORK, Defendant.
REPORT & RECOMMENDATION
VALERIE FIGUEREDO, UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE GEORGE B. DANIELS, United States District Judge
Pro se plaintiff Chandel Richard Hoffman (“Plaintiff”) commenced this action on November 9, 2020. See ECF No. 1 (“Compl.”). For almost three years, this case has remained dormant, as Plaintiff has failed to serve Defendant The Federal Reserve Bank of New York with a copy of the summons and complaint and has not responded to numerous court orders directing her to do so. See ECF Nos. 28, 30, 32. For the following reasons, I respectfully recommend dismissal of Plaintiff's case, without prejudice, for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
BACKGROUND
Plaintiff filed suit on November 9, 2020, against The Federal Reserve Bank of New York, claiming that The Federal Reserve engaged in “[s]ecurities fraud, wire fraud, money laundering, false statements, [and] false filings with the U.S. Securities and Exchange Commission” because it had charged him a $15-30 fee for instant wire transfers. See Compl. at 5. Plaintiff commenced this action in the United States District Court for the District of South Carolina, and on March 23, 2021, the case was transferred to this District. ECF No. 22.
Plaintiff Hoffman commenced this action alongside another Plaintiff, Black Hills Holdings, LLC. See Compl. at 1. On March 23, 2021, the Court terminated Black Hills Holdings, LLC as a plaintiff, because it had failed to retain counsel and could not appear pro se in a civil action as a business entity. See ECF Nos. 17, 20.
On March 31, 2021, the Court scheduled an initial conference, before the Honorable George B. Daniels. ECF No. 25. However, the case was referred to Magistrate Judge Debra C. Freeman for General Pretrial and Dispositive Motion on April 1, 2021, and the initial conference was subsequently cancelled. ECF Nos. 25-27. For the next ten months nothing was filed on the docket; Plaintiff took no action to prosecute this case. Then, on February 18, 2022, Judge Freeman directed the Clerk of Court to issue a summons to Defendant. ECF No. 28. The order directed Plaintiff “to serve the Summons and Complaint on Defendant within 90 days of the issuance of the Summons.” Id. The Court warned Plaintiff that if he did not serve Defendant within ninety days of the issuance of the summons by the Clerk of Court or request an extension of time to do so, the Court may recommend dismissal of the claims without prejudice under Rules 4 and 41 of the Federal Rules of Civil Procedure, for failure to prosecute. Id. Plaintiff did not file proof of service and Plaintiff did not request an extension of time to do so.
On July 21, 2022, the Court issued an order directing Plaintiff to submit a letter by no later than “August 19, 2022, providing an update on efforts made to serve Defendant or requesting an extension of time to serve Defendant.” ECF No. 30. The Court warned Plaintiff that “[f]ailure to comply with this order [would] result in this Court's recommendation that Plaintiff's claims be dismissed, without prejudice, for failure to prosecute under Rules 4 and 41 of the Federal Rules of Civil Procedure.” Id. Again, Plaintiff did not file proof of service on the docket and nor did Plaintiff request an extension of time to serve Defendant.
Finally, on December 1, 2022, the Court issued an order giving Plaintiff “one final opportunity to submit a letter complying with [the] Court's July 21, 2022 and August 31, 2022 orders by no later than Thursday, December 15, 2022.” ECF No. 32. The Court again warned Plaintiff that “[f]ailure to comply will result in this Court's recommendation that Plaintiff's claims be dismissed, without prejudice, for failure to prosecute under Rules 4 and 41 of the Federal Rules of Civil Procedure.” Id. Plaintiff did not respond or otherwise take any action to prosecute this case. Since the Court's December 1 order, the case has again remained dormant, with Plaintiff having taken no action to prosecute the case. Plaintiff has not filed anything on the docket since the case was transferred to this District on March 23, 2021.
DISCUSSION
Federal Rule of Civil Procedure 41(b) states that a defendant may move to dismiss an action or any claim against it “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order.” Fed.R.Civ.P. 41(b). However, the United States Supreme Court has determined that the language of Rule 41 does not restrict the Court's power to act on its own and dismiss an action absent a motion. See Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962); see also Harding v. Goord, 135 Fed.Appx. 488, 488 (2d Cir. 2005) (“Although not explicitly authorized by Rule 41(b), a court may dismiss a claim for failure to prosecute sua sponte.”); White v. Westchester Cnty., No. 19-CV-03604 (KMK), 2020 WL 7323422, at *1 (S.D.N.Y. Dec. 11, 2020) (“It has long been recognized that a district court has the inherent authority to dismiss for failure to prosecute sua sponte.”). Unless the dismissal order states otherwise, a dismissal under Rule 41(b) “operates as an adjudication on the merits.” Link, 370 U.S. at 630.
In considering whether to dismiss a case pursuant to Rule 41(b), courts examine 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). Generally, no one factor is “dispositive,” id., and the sanction of dismissal should be considered “in light of the record as a whole.” United States ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 254 (2d Cir. 2004). As the Second Circuit has indicated, a “pro se litigant's claim should be dismissed for failure to prosecute ‘only when the circumstances are sufficiently extreme.'” Baptiste, 768 F.3d at 217 (quoting LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001)).
Viewing the record as a whole and considering the factors set forth above, dismissal without prejudice is appropriate. First, Plaintiff has taken no action in this case since he provided the Court with updated contact information on November 30, 2020, nearly three years ago. See ECF No. 14. While “there is no time frame specifically identifying the point at which a Rule 41(b) dismissal is warranted . . . durations of five to eight months are usually sufficient,” and a court may consider other factors, such as “the violation of court orders,” in assessing “what length of time is appropriate.” Cain v. Simon & Schuster, No. 11-CV-460 (SAS), 2013 WL 1608620, at *3 (S.D.N.Y. Apr. 15, 2013); see also Griffin v. Capra, No. 18-CV-10405 (KMK), 2022 WL 1003908, at *1-2 (S.D.N.Y. Apr. 4, 2022) (dismissing for failure to prosecute where delay was around eight months and plaintiff did not respond to “repeated warnings that failure to amend or prosecute his case could result in dismissal”). The lengthy period of time during which this case has lay dormant, by itself, counsels in favor of dismissal.
But in addition to Plaintiff's failure to take any action in this case for nearly three years, Plaintiff has ignored multiple court orders directing him to serve Defendant with the complaint or request an extension of time to do so. See Harding, 135 Fed.Appx. at 488-89 (affirming dismissal of action where Pro se plaintiff repeatedly refused to comply with court orders); Brown v. Pulgarin, No. 17-CV-1677 (VSB) (KHP), 2018 WL 5723120, at *2 (S.D.N.Y. Nov. 1, 2018) (adopting report and recommendation dismissing Pro se plaintiff's complaint for failure to prosecute after he failed to comply with court-ordered deadlines). Consequently, Plaintiff's own conduct-both in having ignored multiple court orders and in failing to take any action to advance this case-weigh strongly in favor of dismissal.
Second, Plaintiff was expressly warned by the Court, on three separate occasions, that his complaint could be subject to dismissal if he failed to serve Defendant or otherwise take diligent steps to prosecute this action. See ECF Nos. 46, 5428, 30, 32. To date, Plaintiff has not responded to the Court's orders. Plaintiff was thus sufficiently made aware that his failure to prosecute his case by taking the minimal step of serving Defendant and filing proof of service on the docket could result in dismissal of his action.
Third, it is plain that Defendant cannot defend this action if it has not been served the complaint. And a delay of nearly three years since the filing of the complaint is undoubtedly prejudicial to Defendant. See Marrero v. City of New York, 18-CV-12405 (PGG), 2020 WL 4349922 at *2 (S.D.N.Y. July 29, 2020) (finding the third factor satisfied when plaintiff failed to provide proof of service despite the court's warning that failure to do so will lead to dismissal for failure to prosecute); Europacific Asset Mgmt. Corp v. Tradescape, Corp., 233 F.R.D. 344, 35354 (S.D.N.Y.2005) (finding prejudice where plaintiff failed to effectuate service of an amended complaint for almost two years) (citations omitted). Defendant has been, and will continue to be, prejudiced by Plaintiff's failure to take even the most basic step of notifying it of this action by serving it with a copy of the complaint.
With respect to the fourth factor, “it is not an efficient use of the Court's . . . resources to permit this case to languish on the docket in the hope that [Plaintiff] will reappear in the future.” Blake v. Payane, No. 08-CV-0930 (PAC) (PED), 2011 WL 7163172, at *2 (S.D.N.Y. Mar. 11, 2011) (internal quotation marks, citation, and brackets omitted). The Court has a strong interest in managing its docket and Plaintiff has had multiple opportunities to be heard. Indeed, Plaintiff has been afforded nearly three years to serve Defendant with a copy of the complaint.
Finally, as to the fifth factor, the Court has considered lesser sanctions but finds that they would not be effective given Plaintiff's failure to even respond to multiple court orders. Moreover, Plaintiff's lack of response to the Court's last order threatening dismissal strongly suggests that a lesser sanction would be futile. 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 equally unclear that a ‘lesser sanction' would have proved effective in this case.”). The Court recognizes that pro se litigants are given special solicitude in complying with procedural requirements. McCord v. City of New York, 13-CV-2008 (AJN), 2014 WL 4392069, at *2 (S.D.N.Y. Sept. 4, 2014). However, even with this deference to Plaintiff's Pro se status, dismissal is warranted here. As previously discussed, this Court has received no communication from Plaintiff since November 2020. Additionally, the Court has issued three separate orders over the course of twenty months giving Plaintiff the opportunity to show proof of service or request an extension of time and warning Plaintiff that failure to take action could lead to dismissal of the case. There is no lesser sanction that would be effective after such a lengthy period of inaction. Id. at *2; see e.g., Ruzsa, 520 F.3d at 178; Lehman v. Garfinkle, No. 08-CV-9385 (SHS), 2013 WL 5637700 at *9 (S.D.N.Y. Oct. 16, 2013) (“Lehman has still not responded to this Court's September 24 order to show cause, making it unclear how any sanction short of dismissal with prejudice would prove effective.”). Further, dismissal without prejudice “appropriately takes into account the efficacy of lesser sanctions.” Griffin, 2022 WL 1003908, at *2 (citing Waters v. Camacho, 288 F.R.D. 70, 71-72 (S.D.N.Y. 2013)).
In short, because there is no indication whatsoever that Plaintiff has any interest in prosecuting this action, the “circumstances are sufficiently extreme” to warrant dismissal of Plaintiff's case. Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996); Brown v. New York Univ., No. 12- CV-1639 (GBD) (KNF), 2013 WL 433539, at *1 (S.D.N.Y. Feb. 1, 2013) (Rule 41(b) “authorizes a district court to dismiss an action for failure to prosecute” where plaintiff neither serves the defendant, files proof of service, or demonstrates good cause for failure to serve.)
CONCLUSION
For the reasons stated above, I respectfully recommend that Plaintiff's complaint be dismissed without prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute. The Clerk of Court is directed to mail a copy of this Order to Plaintiff, at the address reflected on the Docket.
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 the Honorable George B. Daniels. 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).