Opinion
20 Civ. 11129 (GBD) (GWG)
07-30-2021
IVAN MAI, Plaintiff, v. CITIGROUP GLOBAL MARKETS HOLDINGS INC., Defendant.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, Ivan Mai, proceeding pro se, filed the complaint in this action on January 4, 2021. Complaint, dated December 30, 2020 (Docket # 1). On May 11, 2021, defendant, Citigroup Global Markets Holdings Inc. ("Citigroup"), filed a motion to dismiss Mai's complaint under Federal Rules of Civil Procedure 8(a), 9(b), 12(b)(1) and 12(b)(6). (Docket ## 25-27). Pursuant to Local Civil Rule 6.1(b)(2), Mai's response to the pending motion to dismiss was due on May 25, 2021. The Notice of Motion (Docket # 25) accompanying Citigroup's motion to dismiss indicates that Mai agreed that his response to the motion would be filed by June 8, 2021. Notwithstanding these deadlines, Mai failed to respond to Citigroup's motion.
In light of Mai's pro se status, the Court sua sponte issued an order extending Mai's time to respond to June 30, 2021. See Order, filed June 23, 2021 (Docket # 30) ("June 23 Order"). The Court specifically warned that, if Mai failed to file his response by this deadline, "this case may be dismissed for failure to prosecute under Rule 41 of the Federal Rules of Civil Procedure." Id. (emphasis in original). Mai did not file a response. Accordingly, the Court issued an order requiring Mai to show cause why this case should not be dismissed for failure to prosecute, setting a deadline of July 22, 2021 for his response. See Order, filed July 8, 2021 (Docket #31) ("OSC"). Mai was warned that "[f]ailure to timely respond to th[e] order to show cause may by itself result in the dismissal with prejudice of this case for failure to prosecute." Id. at 1 (emphasis omitted). To date, Mai has not filed a response or requested an extension of time to respond.
Fed. R. Civ. P. 41(b) provides in relevant part:
If the plaintiff fails to prosecute ... a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision . . . operates as an adjudication on the merits.
A decision to dismiss an action for failure to prosecute "may be made sua sponte." Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998) (citing Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)). Although dismissal is "'a harsh remedy to be utilized only in extreme situations, '" Hoefer v. Bd. of Educ. of the Enlarged City Sch. Dist. of Middletown, 820 F.3d 58, 64 (2d Cir. 2016) (quoting Jackson v. City of NY., 22 F.3d 71, 75 (2d Cir. 1994)), "the authority to invoke it for failure to prosecute is vital to the efficient administration of judicial affairs and provides meaningful access for other prospective litigants to overcrowded courts, " Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). The "court should not have to beg the parties before it to litigate the cases they initiate." McLean v. City of NY., 2007 WL 415138, at *4 (S.D.N.Y. Feb. 6, 2007). "Dismissal for failure to prosecute, pursuant to Fed.R.Civ.P. 41(b), is a matter committed to the discretion of the district court." Romandette v. Weetabix Co., 807 F.2d 309, 312 (2d Cir. 1986) (citing Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962) and Lyell, 682 F.2d at 43).
A district court considering a dismissal pursuant to Rule 41(b) for failure to prosecute weighs five factors:
(1) the duration of the plaintiffs failures; (2) whether plaintiff had received notice that further delays would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay; (4) whether the district judge has taken care to strike the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard; and (5) whether the judge has adequately assessed the efficacy of lesser sanctions.Martens v. Thomann, 273 F.3d 159, 180 (2d Cir. 2001) (quoting Shannon v. Gen. Elec. Co., 186 F.3d 186, 193-94 (2d Cir. 1999)); accord Platinum Funding Corp. v. Bosselli Studio Ltd., 368 Fed.Appx. 207, 208-09 (2d Cir. 2010). No single factor is dispositive. Martens, 273 F.3d at 180.
These factors strongly counsel in favor of dismissal in the instant case. Mai has failed to take any action in this case since March 22, 2021, when he filed a letter objecting to an extension of time requested by Citigroup. (See Docket # 18). This period of inaction, over four months long, weighs strongly in favor of dismissal. See Sanchez v. Bracketron, Inc., 2021 WL 2440663, at *2 (S.D.N.Y. June 15, 2021) (finding this factor supported dismissal where "Plaintiffs inaction span[ned] more than three months"); Chavis v. City of New York, 2018 WL 6532865, at *3 (S.D.N.Y. Oct. 12, 2018) (dismissal after a four month delay), adopted by, 2018 WL 6528238 (S.D.N.Y. Dec. 11, 2018). Additionally, Mai was clearly on notice that further delay could result in dismissal. Indeed, the Court warned Mai on two separate occasions. See June 23 Order at 1 (warning Mai that if he failed to respond to Citigroup's motion, "this case may be dismissed for failure to prosecute under Rule 41 of the Federal Rules of Civil Procedure") (emphasis omitted); OSC at 1 ("Failure to timely respond to this order to show cause may by itself result in the dismissal with prejudice of this case for failure to prosecute.") (emphasis omitted). Two warnings are sufficient to find this factor weighs in favor of dismissal. See Leybinsky v. United States Citizenship & Immigr. Servs., 2020 WL 7295661, at *2 (E.D.N.Y.Dec. 2, 2020) (dismissal after one warning); Chavis, 2018 WL 6532865, at *4 (dismissal after two warnings).
As to whether Citigroup is likely to be prejudiced by further delay, "[prejudice to defendants resulting from unreasonable delay may be presumed," Lyell, 682 F.2d at 43. Additionally, Citigroup suffers prejudice "in the form of wasted time and resources," Greene v. City of New York, 2020 WL 2840521, at *3 (E.D.N.Y.Apr. 23, 2020), adopted by, 2020 WL 2836785 (E.D.N.Y. June 1, 2020), as it has fully briefed its motion to dismiss, which Mai never responded to. Accordingly, this factor weighs in favor of dismissal.
As for the fourth factor, the Court has a strong interest in managing its docket and cannot indefinitely wait for Mai to turn his attention to this case. Furthermore, his "failure to comply with the court's order or make an attempt to prosecute this case dismisses his right to have the court hear his claim." George v. Cousins Printing LLC, 2008 WL 4093057, at *2 (S.D.N.Y. Sept. 2, 2008) (citing Feurtado v. City of NY., 225 F.R.D. 474, 480 (S.D.N.Y.2004)).
Finally, the Court has no reason to believe that any lesser sanction will succeed in altering Mai's behavior. Indeed, Mai could not even be bothered to explain why the case should not be dismissed when he was ordered to do so. See Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 178 (2d Cir. 2008) (per curiam) ("[I]n light of [plaintiffs] failure to respond to the notice threatening dismissal, it is . . . unclear that a lesser sanction would have proved effective in this case.") (punctuation omitted). Dismissal is therefore the appropriate sanction. See Nava v. Opai Thai Inc., 2021 WL 1873153, at *2 (S.D.N.Y. May 10, 2021) (finding dismissal to be the appropriate sanction where "there [was] nothing in the record to suggest that a sanction less serious tha[n] dismissal will resolve the plaintiffs failure to cooperate") (punctuation omitted). Accordingly, all of the factors weigh in favor of dismissal.
For the foregoing reasons, this action should be dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute.
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 Judge 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).