Opinion
19-CV-1072
12-17-2021
MARIAH LOPEZ, Plaintiff, v. CAPITAL DISTRICT TRANSPORTATION AUTHORITY, CITY OF WATERVLIET, Defendants.
For Plaintiff: (No Appearance) For Defendant: (Capital Region Transportation Authority) MONACO, COOPER, LAMME & CARR, PLLC, Attorneys at Law, BY: MICHELLE ANN STORM, ESQ. For Defendant: (Watervliet) GOLDBERG SEGALLA, LLP, Attorneys at Law, BY: THOMAS PAUL ARMSTRONG, ESQ.
For Plaintiff: (No Appearance)
For Defendant: (Capital Region Transportation Authority) MONACO, COOPER, LAMME & CARR, PLLC, Attorneys at Law, BY: MICHELLE ANN STORM, ESQ.
For Defendant: (Watervliet) GOLDBERG SEGALLA, LLP, Attorneys at Law, BY: THOMAS PAUL ARMSTRONG, ESQ.
Transcript of a Digitally-Recorded Report and Recommendation held on December 9, 2021, at the James T. Foley U.S. Courthouse, 445 Broadway, Albany, New York, the HONORABLE CHRISTIAN F. HUMMEL, United States Magistrate Judge, Presiding.
(The following is an excerpt from the proceedings held on 12/9/2021.)
(Open Court, 10:39 a.m.)
THE COURT: The following will constitute the court's report and recommendation in this matter.
Procedurally, plaintiff filed a complaint on August 29th, 2019 which appears at Docket Number 1. After extensive motion practice, the City of Watervliet and Capital District Transportation Authority are the remaining defendants.
On April 22nd of 2020, the court issued General Order 25 which, among other things, scheduled a Rule 16 conference for July 21st of 2020, that appears at Docket Number 8. A copy of the General Order was mailed to the plaintiff at the address which she provided to the court. On May 18th of 2020, that mail was returned to the court as undeliverable. That appears at Docket Number 13.
On June 10th of 2020, defendant City of Watervliet filed an answer to the complaint which appears at Docket Number 18. On June 23rd of 2020, defendant Capital District Transportation Authority filed an answer which appears at Docket Number 18.
On July 1st of 2020, the court issued a text order scheduling a Rule 16 conference for July 21st of 2020 which appears at Docket Number 22. A copy of that text order was mailed to plaintiff at the address which she provided to the court. That appears at Docket Number 22. That mail was returned to the court as undeliverable. That entry appears at Docket Number 25. On September 22nd of 2020, the court issued a notice rescheduling the Rule 16 conference for October 20th of 2020. That notice appears at Docket Number 27. A copy of the notice was mailed to plaintiff. That appears at Docket Number 27. That mail was not returned to the court. On October 15th of 2020 the court issued a text order confirming the Rule 16 conference to be conducted on October 20th of 2020. That entry appears at Docket Number 30. A copy of that notice was mailed to plaintiff. That mail was not returned to the court. The Rule 16 conference was conducted by telephone on October 20th of 2020. That is reflected by docket entry dated October 20th of 2020. The attorneys for defendants participated in that conference. Plaintiff failed to call in and participate in that conference as referenced by docket entry dated October 20th of 2020.
On October 21st of 2020, the court issued a text order advising plaintiff that failing to appear at court-ordered conferences, failing to abide by court-ordered deadlines, or failure to comply with court orders may result in sanctions being imposed, including a dismissal of this action. That appears at Docket Number 32. A copy of that text order was mailed to plaintiff by regular mail. That mail was not returned to the court.
On October 21st of 2020, the court issued a Uniform Pretrial Scheduling Order which, among other things, directed that all discovery be completed by August 30th of 2021. That appears at Docket Number 33. That Uniform Pretrial Scheduling Order was served on plaintiff by regular mail and that entry appears at Docket Number 33. That mail was not returned to the court.
On October 21st of 2020, plaintiff filed a change-of-address form which appears at Docket Number 34. On October 21st of 2020, plaintiff filed a letter which, among other things, explained her failure to respond to correspondence from the court and advised that she would fully participate in all further court proceedings. That appears at Docket Number 35.
On August 4th of 2021, defendant Capital Region Transportation Authority filed a letter alleging that plaintiff failed to respond to that defendant's first set of interrogatories and requests for production of documents and demand pursuant to Rule 34, Notice to Take Deposition, and Rule 26 disclosures. Docket Number 37. Her letter further indicated that plaintiff failed to respond to various good faith letters which were mailed to her in March and June of 2021. Docket Number 37. A copy of that correspondence was mailed to plaintiff.
On August 5th of 2021, the court issued a notice scheduling an in-person conference for August 19th, 2021. That appears at Docket Number 38. A copy of that court notice was mailed to plaintiff, Docket Number 38. That mail was not returned to the court. The conference was conducted on August 19th, 2021. Counsel for defendants appeared for the conference. Plaintiff failed to appear for that conference. Docket entry dated August 19 of 2021. The court granted defendants leave to file a motion to dismiss based upon plaintiff's failure to prosecute this matter.
On October 20th of 2021, the court issued a text order setting a briefing schedule for defendants' motions to dismiss, Docket Number 40. That text order further advised plaintiff that failing to appear at court-ordered conferences, failing to abide by court-ordered deadlines, or failing to comply with court orders may result in sanctions being imposed, including the dismissal of this action, Docket Number 40. A copy of that text order was served on plaintiff by regular mail, Docket Number 40. That mail was not returned to the court.
On September 24th of 2021, defendant City of Watervliet filed a motion seeking an order dismissing the complaint with prejudice on the merits, for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b), and for failure to comply with a court order pursuant to Federal Rule of Civil Procedure 37(b)(2). The court would note that courts consider the same factors in addressing a motion pursuant to 41(b) as a motion pursuant to Rule 37(b)(2). Plaintiff's response to that motion was due on October 15th of 2021, Docket Number 43. Plaintiff has failed to file any response to that motion.
On September 24th of 2021, defendant Capital District Transportation Authority filed a motion for an order pursuant to Federal Rule of Civil Procedure 41(b) granting defendant's motion to dismiss based upon plaintiff's failure to prosecute. That appears at Docket Number 44. Plaintiff's response to that motion was due on October 15th of 2021, Docket Number 44. Plaintiff has failed to respond to that motion.
On December 2nd of 2021, the court filed an amended notice of hearing for an in-person hearing on motions to dismiss, Docket Numbers 43 and 44, for December 9th of 2021. That entry appears at Docket Number 47. A copy of that notice was mailed to plaintiff, Docket Number 47. That mail has not been returned.
The court would again note that plaintiff has failed to appear for today's conference and it is now 10:50. Federal Rule of Civil Procedure Section 41(b) provides that if plaintiff fails to prosecute or comply with these rules or a court order, the defendant may move to dismiss the action or any claim against it. Unless a dismissal order states otherwise, a dismissal under subsection (b) and any dismissal not under this rule, except for one of lack of jurisdiction, improper venue, or failure to join a party under Rule 19, operates as an adjudication on the merits.
In deciding a motion to dismiss for failure to prosecute, the Second Circuit has set forth five factors for the court to consider: One, the duration of plaintiff's failures; two, whether the plaintiff received notice that further delays would result in dismissal; three, whether the defendants are likely to be prejudiced by further delays; four, whether the court has struck the correct balance between the need to alleviate calendar congestion and a party's right to due process and the chance to be heard; and five, whether the court has addressed the efficacy of lesser sanctions. The case citation for that rule is Lucas, 84 F.3d at 535, citing Jackson v. City of New York, 22 F.3d 71 at 74, Second Circuit in 1994.
A review of the procedural history of this case reveals that the complaint was filed on August 29th, 2019 at Docket Number 1. As such, over two years have elapsed since the filing of the complaint, virtually no discovery has been conducted, plaintiff's failure to comply with the court's Uniform Pretrial Scheduling Order. Plaintiff has continually failed to appear for conferences with the court, including the initial conference on October 20th, 2020, docket entry dated October 20th, 2020, and a conference on August 19th of 2021. Reference is docket entry dated August 21st of 2021.
Plaintiff received a notice that failure to comply with court orders and attend court conferences may result in the imposition of sanctions, including dismissal of this action. That specific admonition is contained in the court's October 21st, 2020 text order at Docket Number 32, and the court's August 21st, 2021 text order which appears at Docket Number 40. In addition, these filed motions provide additional notice that the defendants seek to have this action dismissed based upon the plaintiff's failure to prosecute this action. As such, plaintiff was on notice that the continuing failure to comply with court orders could result in a dismissal of this case.
The third prong of the test is whether defendants are likely to be prejudiced by the delay in this matter. The court finds that they are. Since the complaint was filed on August 29th of 2019, plaintiff has failed to engage in any discovery. Plaintiff has failed to serve responses to any of the various discovery requests served by each of the defendants. These requests include demands for the production of documents and interrogatories. Plaintiff has also not been deposed in this matter. As a result of those actions and inactions, the defendants have been denied access to information needed for their defense in this action. Due to the long passage of time since the events set forth in plaintiff's complaint and given her complete and utter failure to participate in the discovery process, defendants have been prejudiced. As such, the third factor weighs in favor of dismissal.
Plaintiff has been given numerous opportunities to engage in discovery in this action. Plaintiff's failure to engage in discovery has significantly delayed the resolution of this action, thereby contributing to court congestion. As such, the fourth factor weighs in favor of dismissal.
The final factor is whether there was a less dramatic sanction than dismissal. Given the over two-year delay by plaintiff in prosecuting this action and her repeated failure to attend court conferences, including today, there is no basis to believe that any sanction less than dismissal would remedy this situation.
In view of the foregoing, it is recommended that the defendant City of Watervliet's motion to dismiss pursuant to Federal Rules of Civil Procedure 41(b) and 37(b)(2) be granted with prejudice. And it is further recommended that defendant Capital District Transportation Authority's motion to dismiss pursuant to Federal Rules of Civil Procedure 41(b) be granted with prejudice. The court will enter a report-recommendation and order reflecting this decision. The court will annex the transcript of these proceedings with that report-recommendation and order. That concludes the court's report-recommendation and order with respect to this matter.
(Whereupon the proceedings continued.)
CERTIFICATION
I, JODI L. HIBBARD, RPR, CRR, CSR, Official Court Reporter in and for the United States District Court, Northern District of New York, DO HEREBY CERTIFY that I have listened to and transcribed the foregoing proceedings and that the foregoing is a true and correct transcript thereof to the best of my ability.