Opinion
15 Civ. 4333 (NSR) (PED)
10-15-2019
AURIA R. JAMES, Plaintiff, v. DAVID MEDLAR, ET AL., Defendants.
REPORT AND RECOMMENDATION
TO: THE HONORABLE NELSON STEPHEN ROMÁN UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
On May 29, 2015, plaintiff Auria James brought this action pro se, pursuant to 42 U.S.C. § 1983, alleging 4th Amendment violations arising out of a June 12, 2012 search and seizure at her residence. After plaintiff failed to appear for a scheduled conference on June 12, 2019, the Court issued an Order to Show Cause which warned her that the case would be dismissed if she failed to comply. The following day, June 13, 2019, plaintiff telephoned chambers and advised my staff that she no longer wished to pursue her case due to health and employment-related issues, Although my staff instructed plaintiff to submit her request to dismis the case in writing, she has not done so, Nonetheless, for the reasons set forth below, I respectfully recommend that this petition be DISMISSED for failure to prosecute.
This matter comes before me pursuant to an Order of Reference dated May 29, 2019 [Dkt. 24.]
II. BACKGROUND
On April 17, 2019, defense counsel submitted a letter advising the Court that "efforts to contact the plaintiff for the purpose of submitting a Discovery Plan [had] been unsuccessful." [Dkt. 23.] Counsel reported that both letters and phone calls had gone unanswered, and attached copies of recent correspondence he had sent to plaintiff. [Dkt. 23.] On May 29, 2019, your Honor entered a proposed scheduling order which had been submitted by defense counsel, and referred the matter to me for pretrial supervision. [Dkts. 24, 25.] On May 30, 2019, I entered an Order scheduling an in-person conference for June 12, 2019, at 11:00 a.m.; the scheduling order was duly mailed to plaintiff. [Dkt. 27.]
Plaintiff did not appear for the June 12 conference. Defense counsel did appear, and reported that he had not had any recent contact with the plaintiff. Accordingly, that same day the Court issued an Order to Show Cause, which stated as follows:
This matter comes before the undersigned pursuant to an Order of Reference, dated May 29, 2019. Dkt. 24. On June 12, 2019, a case management conference was held at 11:00 AM in Courtroom 420, 300 Quarropas Street, White Plains, NY 10601. A copy of the scheduling order was mailed to the pro se Plaintiff on May 30, 2019, Dkt. 27, and Plaintiff failed to appear at the scheduled conference. At the conference, defense counsel represented that Plaintiff has failed to respond to his phone calls and to correspondence sent to Plaintiff, though he was able to briefly communicate via telephone with Plaintiff in April 2019. Plaintiff's last communication with the Court appears to have been on December 20, 2017. Dkt. 11.
Plaintiff is reminded of the duty to diligently prosecute this action under Rule 41(b) of the Federal Rules of Civil Procedure.
Accordingly, plaintiff must submit a letter to the undersigned no later than June 26, 2019 wherein she must:
(1) explain her failure to appear at the scheduled conference; and
(2) show cause why her case should not be dismissed for failure to prosecute.
[Dkt. 28.]
IF PLAINTIFF DOES NOT COMPLY WITH THIS ORDER, THE UNDERSIGNED WILL RECOMMEND TO JUDGE ROMÁN (VIA REPORT AND RECOMMENDATION) THAT HE DISMISS PLAINTIFF'S CASE FOR FAILURE TO PROSECUTE.
The following day, June 13, 2019, my chambers received a telephone call from plaintiff. At that time, plaintiff advised my staff the she no longer wanted to pursue this case because of health issues and the possibility of losing her job. My staff advised plaintiff to send a letter to the Court confirming her desire to drop the case. Since June 13, 2019, plaintiff has not submitted anything to the Court, either in response to the telephone advice she received or in response to the Order to Show Cause.
The timing suggests that plaintiff called in response to my staff's efforts to contact her by telephone when she failed to appear for the June 12 conference; she may not yet have received the Order to Show Cause.
III. DISCUSSION
The Supreme Court has long recognized the "inherent power" of a District Court to dismiss a case sua sponte for a plaintiff's failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962), This authority, which is necessary to permit the "orderly and expeditious disposition of cases," id. at 631, is now codified in the Federal Rules of Civil Procedure. The rules permit the Court, upon motion of the defendant, to involuntarily dismiss an action when "the plaintiff fails to prosecute or to comply with these rules or a court order." Rule 41(b), Fed. R. Civ. P. Although the text of Rule 41(b) "expressly addresses only the case in which a defendant moves for dismissal of an action, it is unquestioned that Rule 41(b) also gives the district court authority to dismiss a plaintiff's case sua sponte for failure to prosecute." LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing Link, 370 U.S. at 630).
To determine whether dismissal for failure to prosecute is warranted, the Court must examine five criteria, specifically, whether:
(1) the plaintiff's failure to prosecute caused a delay of significant duration;
(2) plaintiff was given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser sanctions.Sys United States ex rel. Drake v. Norden ., Inc., 375 F.3d 248, 254 (2d Cir. 2004). However, "[n]o one factor is dispositive " and the ultimate decision of whether to dismiss should be made "in light of the record as a whole." Id.
Here, a review of the Drake factors appears superfluous because plaintiff has advised the Court that she wishes to drop the case, and her failure to appear for a conference or otherwise participate in the case appears consistent with that wish. I note, however, that plaintiff received clear notice that further delay would result in dismissal. Moreover, prudent docket management, the fourth Drake factor, dictates that "[i]t 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." Davison v. Grillo, No. 05 Civ. 4960 (NG)(LB), 2006 U.S. Dist. LEXIS 99587 at *2 (E.D.N.Y. 2006)(copy mailed to plaintiff). Accordingly, I respectfully recommend that this action be dismissed with prejudice for failure to prosecute.
IV. CONCLUSION
For the reasons set forth above, I conclude - and respectfully recommend that Your Honor should conclude - that this case be DISMISSED. Dated: October 15, 2019
White Plains, New York
Respectfully Submitted,
/s/
Paul E. Davison, U.S.M.J.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days, plus an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed. R. Civ. P. 6(a), (b), (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Nelson Stephen Román, at the Honorable Charles L. Brieant, Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Román. A copy of the foregoing Report and Recommendation has been sent to the following: Auria R. James
269 East 194th Street
Apt. 1E
Bronx, NY 10458