Summary
dismissing case when "plaintiff ha[d] not pursued th[e] action for more than six months"
Summary of this case from Rodriguez v. Cavala Café Corp.Opinion
02-CV-6574.
August 1, 2006
For plaintiff: Miguel Marcial, pro se, New York, NY.
For defendants: Tamara B. Christie, Assistant Attorney General of Counsel, NYS Office of the Attorney General, Rochester, NY.
DECISION and ORDER
INTRODUCTION
This case is before the Court on defendant's motion to dismiss brought pursuant to Federal Rule of Civil Procedure 41(b) and Western District of New York Local Rule of Civil Procedure 41.2. For the reasons stated below, the motion is granted.
BACKGROUND
On November 12, 2002, plaintiff filed the complaint in the instant action. (Compl. (# 1).) Subsequently, on May 10, 2004, plaintiff filed a motion for the appointment of counsel. (Motion to Appoint Counsel (# 13).) Plaintiff's motion to appoint counsel was granted, and United States Magistrate Judge Jonathan Feldman appointed Simon Moody, Esq. ("Moody") to represent plaintiff. (Order Granting Motion to Appoint Counsel (# 15).) Following a telephone conference with Judge Feldman on December 19, 2005, Judge Feldman granted Moody's request to withdraw as counsel after Moody cited an ethical conflict. (Order (# 35) at 1.) In the same telephone conference, Judge Feldman advised plaintiff that must proceed pro se. ( Id.) On April 20, 2006, a telephone status conference was scheduled, and plaintiff was directed to contact Judge Feldman with a telephone number at which he could be reached. (Docket Entry of March 27, 2006.) However, plaintiff did not make contact. (Def.'s Decl. (# 31) at 2.)On April 21, 2006, defendants filed a motion (# 30) to dismiss the complaint, pursuant to Federal Rule of Civil Procedure 41(b) and Western District of New York Local Rule of Civil Procedure 41.2, because of plaintiff's failure to prosecute. This Court issued a motion scheduling order which was sent to counsel and plaintiff. (Order in Response to Def.'s Motion to Dismiss (# 33).) To date, plaintiff has filed no response to defendant's motion.
STANDARDS OF LAW
Rule 41.2The Western District of New York, in its local rule for dismissal for failure to prosecute provides:
(a) If a civil case has been pending for more than six months and is not in compliance with the directions of the Judge or a Magistrate Judge, or if no action has been taken by the parties in six months, the Clerk shall issue a written order to the parties to show cause within thirty days why the case should not be dismissed for failure to prosecute. The parties shall respond to the order by sworn affidavits explaining in detail why the action should not be dismissed. They need not appear in person. No explanations communicated in person, over the telephone, or by letter shall be acceptable.
(b) If the parties fail to respond as required in section (a), the Judge may issue a written order dismissing the case for failure to prosecute or providing for sanctions or making other directives to the parties as justice requires.
(Rule 41.2 of the Local Rules of Civil Procedure)
Federal Rule of Civil Procedure 41(b)Rule 41(b) of the Federal Rules of Civil Procedure authorizes the dismissal of an action for failure to prosecute, providing in relevant part:
For failure of the plaintiff to prosecute or to comply with theses rules or any order of court, a defendant may move for dismissal of an action or any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision . . . operates as an adjudication upon the merits.
Fed.R.Civ.P. 41(b). Although the rule refers to dismissal upon motion of a defendant, the Supreme Court has made clear that a court has the inherent authority to dismiss an action sua sponte. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) ("The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an `inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious dispositions of cases"); see also Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993); Taub v. Hale, 355 F.2d 201, 202 (2d Cir.), cert. denied, 384 U.S. 1007 (1966).
Dismissal is warranted under Rule 41(b) where the record demonstrates a lack of due diligence by a plaintiff in the prosecution of his lawsuit. Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). Moreover, "prejudice resulting from unreasonable delay may be presumed as a matter of law." Peart v. City of New York, 992 F.2d 458, 462 (2d Cir. 1993); Charles Labs, Inc. v. Banner, 79 F.R.D. 55, 57 (S.D.N.Y. 1978) ("The operative condition for a Rule 41(b) motion is lack of due diligence on the part of the plaintiff, `not a showing by defendant that it would be prejudiced'") (quoting Messenger v. United States, 231 F.2d 328, 331 (2d Cir. 1956)). Applying these standards, courts have frequently found dismissal of a complaint justified when the plaintiff fails to take any specific or concrete actions over a substantial length of time. See, e.g., Fischer v. Dover Steamship Co., 218 F.2d 682, 683 (2d Cir. 1955) (plaintiff's failure to appear for deposition noticed seven months earlier, despite court order requiring his appearance, justified dismissal for failure to prosecute); Myvett v. Rosato, 2004 U.S. Dist. LEXIS 10952, 2004 WL 1354254, *2 (S.D.N.Y. 2004) ("that nearly a year has elapsed since [plaintiff] took any steps to prosecute this case, such as responding to outstanding discovery requests, strongly counsels in favor of dismissal"); Ahmed v. I.N.S., 911 F.Supp. 132, 134 (S.D.N.Y. 1996) (plaintiff's failure to respond to motion or to respond to discovery over course of thirty-five months since complaint was filed justifies dismissal of action); West v. City of New York, 130 F.R.D. 522, 525 (S.D.N.Y. 1990) (plaintiff's inactivity for nineteen months warranted dismissal for failure to prosecute) (citing Chira v. Lockheed Aircraft Corp., 634 F.2d 664 (2d Cir. 1980) and other cases).
DISCUSSION
In the case at bar, it is uncontested that plaintiff has not pursued this action for more than six months. Despite being directed to do so, plaintiff failed to contact Judge Feldman in order to participate in the telephone conference on April 20, 2006. On June 21, 2006, this Court issued an order stating that plaintiff would have until July 7, 2006 to respond to defendants' motion to dismiss, and that plaintiff's failure to respond would result in dismissal of this case. The deadline to file has come and past, and plaintiff has yet to respond. Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Rule 41.2 of the Local Rules of Civil Procedure for the Western District of New York, the Court is dismissing plaintiff's action.
CONCLUSION
For the reasons stated above, defendant's motion (# 30) is granted. This action is dismissed for failure to prosecute.
IT IS SO ORDERED.