Opinion
18-CV-9711 (GBD) (KHP)
04-02-2021
NEREIDA MORALES, Plaintiff, v. NEW YORK PRESBYTERIAN HOSPITAL and CHIEDOZIE ANYANWU, Defendants.
REPORT & RECOMMENDATION
KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE
FROM: KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Nereida Morales, proceeding pro se, commenced this action on October 22, 2018 alleging, in part, that she was sexually assaulted by a co-worker in her home on or about August 14, 2016 and terminated on or about January 27, 2017 as a result of bringing it to the attention of hospital management. (ECF No. 1.) Defendants New York Presbyterian Hospital and Chiedozie Anyanwu now move to dismiss the case for lack of prosecution, asserting that Plaintiff has repeatedly refused to cooperate in discovery or meaningfully participate in the litigation. (ECF Nos. 233-35.) Plaintiff has been warned by the Court on multiple occasions that failure to comply with the Court's orders directing her to cooperate with discovery and/or participate in the litigation would result in a recommendation of dismissal for failure to prosecute. (See ECF Nos. 146, 181, 194, 199, 203, 214, 220, 221.) For the following reasons, this Court respectfully recommends that this case be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
BACKGROUND
Over the course of this litigation, Plaintiff has asserted various allegations that she was sexually harassed, retaliated against, and discriminated against on the basis of her ethnicity, race, religion, and sexual orientation. On October 22, 2018, Plaintiff, through her counsel, filed the initial complaint in this action. That complaint was twice amended by her former counsel and was then amended two more times while Plaintiff was proceeding pro se, without permission of the Court.
Specifically, on June 10, 2019, Plaintiff filed the Fifth Amended Complaint in this action without the Court's permission. (ECF No. 143.) The Court held a case management conference to hear from Plaintiff directly about her claims. That conference was scheduled for June 17, 2019, but because Plaintiff did not appear, the conference was rescheduled to July 8, 2019. (ECF No. 146.) At the conference, Plaintiff explained her claims, and this Court deemed the Fifth Amended Complaint the operative pleading. Although Plaintiff asserts a swarm of allegations in the operative complaint, the Court will refrain from describing them at this time, as the claims themselves are unnecessary for an analysis of the legal issues presented in the instant motion.
On February 4, 2020, the Court ordered Plaintiff to write a letter to Defendants' counsel providing the names of her doctors and therapists and their addresses by no later than February 18, 2020 so that Defendants could prepare appropriate HIPAA medical releases for her to sign. (ECF No. 190.) Plaintiff failed to comply with that order. As a result, the Court once again directed Plaintiff to provide this information and warned that failure to comply with Court orders might result in sanctions, including dismissal of Plaintiff's case. (ECF No. 194.)
Separately, Plaintiff also failed to attend a telephonic Court conference held on September 9, 2020 despite having notice of the conference time and dial-in information. She did not provide any excuse for her absence. Accordingly, the Court scheduled another conference for November 5, 2020 and, once again, warned Plaintiff that future failures to attend conferences or participate in discovery would result in dismissal of her claims. (ECF No. 214.)
Morales attended the November 5, 2020 conference. At that conference, Defendants counsel represented that Plaintiff had still not signed the medical authorizations provided to her by Defendants two months prior. Moreover, the Court specifically directed Plaintiff to respond to Defendants' discovery requests (which had been outstanding for multiple months) and to provide Defendants with a schedule of days when her son would be in school for purposes of scheduling Plaintiff's deposition. (ECF No. 220-21.) Although Plaintiff resisted the idea of sitting for a deposition, the Court clearly explained to Plaintiff, on the record, that she would need to be deposed in order for her case to proceed. Copies of the Court's orders and directives were mailed to Plaintiff by the Court.
By letter dated December 10, 2020 Defendants counsel informed the Court that Plaintiff refused to cooperate in scheduling her deposition despite the Court's prior order. Defendants explained that, at one point, Plaintiff appeared to come around and represented that she would be available to be deposed on certain days of the week. However, when defense counsel followed up with Plaintiff to confirm a deposition date, Plaintiff did not respond. (ECF No. 224.) When Defendants reached out again, Plaintiff responded, via email, stating “I want this to go straight to trial for rape and homicide and my father's suicide as well as blackmail and extortion, ” despite the fact that this case is limited to claims of employment discrimination. Moreover, it is clear that Plaintiff never produced the documents she was ordered to provide to Defendants counsel, such as documents related to Plaintiff's welfare benefits and documents in her possession from her time working at the hospital. (Id.) The various concerns identified by Defendants in their letter led the Court to schedule another case management conference for Monday January 25, 2021 to discuss these issues with the parties. (ECF No. 225.)
That conference was then adjourned to February 1, 2021. (ECF No. 227.) Unfortunately, Plaintiff did not show up at the conference despite the Court mailing her notice of the conference date well in advance. (See ECF No. 230 at 4.) Accordingly, given the various warnings issued by the Court to Plaintiff about failure to attend Court conferences and failure to cooperate during discovery, the Court permitted Defendants to move for dismissal of the case for failure to prosecute. It bears noting that the Court's Order also provided Plaintiff with an opportunity to respond to any such motion by March 26, 2021. (ECF No. 229.)
On February 26, 2021 Defendants filed the instant motion. (ECF No. 233.) Then, on March 2, 2021, the Court issued an Order reminding Plaintiff about the March 26 response deadline. Further, the Order noted that Plaintiff, in her response, should explain why Plaintiff has not participated in discovery to prosecute her claims and why her claims should not be dismissed. (ECF No. 238.) However, despite this reminder, Plaintiff never filed any opposition to the instant motion.
LEGAL STANDARD
Under Rule 41(b), a court may dismiss an action “[i]f the plaintiff fails to prosecute or to comply with [the] rules or a court order.” Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (alteration in original) (quoting Rule 41(b)). Although a pro se litigant's claims may be dismissed for failure to prosecute, such dismissal is only warranted “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)).
Further, before dismissing a case pursuant to Rule 41(b), courts must consider 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.” Id. at 216 (citation omitted). No single factor is dispositive. Id.; see also Harding v. Goord, 135 Fed.Appx. 488 (2d Cir. 2005) (summary order) (affirming dismissal of action where pro se plaintiff repeatedly refused to comply with discovery demands and 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); Peters v. Dep't of Corr. of New York City, 306 F.R.D. 147 (S.D.N.Y. 2015) (dismissing pro se plaintiff's complaint after he failed to oppose defendant's motion for summary judgment, despite having multiple deadline extensions).
DISCUSSION
Here, upon weighing the above factors, dismissal is appropriate. As to the first factor, the Court ordered Plaintiff to provide Defendants with compliant medical releases in February 2020. Plaintiff has failed to do so through the present day. The Court also warned Plaintiff that failure to attend conferences would result in dismissal of her case as early as January 10, 2020. (See ECF No. 181.) The Court notes that Plaintiff has failed to attend multiple conferences since that time. (E.g. ECF Nos. 215 at 2, 230 at 4.) Furthermore, to date, Plaintiff has failed to substantially respond to Defendants' discovery requests. With respect to the second factor, the Court issued no less than eight orders (and potentially more) warning Plaintiff that failure to comply with Court orders and discovery obligations would result in a recommendation of dismissal for failure to prosecute. Thus, Plaintiff was put on notice of the consequences of failing to comply with her responsibilities in this case. As to the third factor, the Court finds that Defendants have been, and will continue to be, prejudiced by Plaintiff's unreasonable and unexplained dilatory and evasive tactics. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982) (“Prejudice to defendants resulting from unreasonable delay may be presumed....” (citation omitted)); see also Dones v. Smalls, No. 17-CV-6038 (JPO), 2018 WL 4211314, at *1 (S.D.N.Y. Sept. 4, 2018) (finding prejudice where the action was “stayed indefinitely due to Plaintiff's absence” and where defendants could not reasonably proceed in the litigation). Thus, Defendants will be prejudiced by further delay. As to the fourth factor, although Plaintiff may certainly have an interest in being heard, she relinquished that opportunity by failing to litigate this action, as described in detail above. See Dones, 2018 WL 4211314, at *1. Moreover, Plaintiff has called Chambers multiple times and was repeatedly referred to the Pro Se Intake Unit for assistance. Finally, with respect to the fifth factor, a monetary sanction would not be appropriate here because Plaintiff is proceeding in forma pauperis (see ECF No. 122) and, thus, a monetary sanction would likely be a harsher remedy than dismissal. See Dones, 2018 WL 4211314, at *1.
CONCLUSION
Because there is no indication that Plaintiff will comply with the Court's orders and litigate this proceeding in good faith, the circumstances are sufficiently extreme to justify dismissal. See id. at *2 (citations omitted). Accordingly, this Court respectfully recommends that Plaintiff's complaint be dismissed for failure to prosecute pursuant to Rule 41(b). Counsel for Defendants shall serve a copy of this Report & Recommendation on Plaintiff and file a letter with this Court on ECF demonstrating proof of service to Plaintiff's last known addresses by no later than April 9, 2021.
NOTICE
Plaintiff shall have seventeen days, and Defendants shall have fourteen days, from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2). Plaintiff shall have seventeen days to serve and file any response. Defendants shall have fourteen days to serve and file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Judge Daniels at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Daniels. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).