Opinion
21-CV-5819 (VEC) (RWL)
2022-02-25
Joel PENA, Plaintiff, v. ZAZZLE INC., et al., Defendants.
Joel Pena, New York, NY, Pro Se.
Joel Pena, New York, NY, Pro Se.
ORDER
VALERIE CAPRONI, United States District Judge:
WHEREAS on July 7, 2021, Plaintiff Joel Pena, proceeding pro se, filed a complaint against Zazzle, Inc., RedBubble, Inc., Spreadshirt, Inc., TP Apparel, LLC, and Teespring, LLC, see Compl., Dkt. 1;
WHEREAS on July 21, 2021, the Undersigned referred the case to Magistrate Judge Lehrburger for general pretrial management and for the preparation of reports and recommendations ("R&Rs") on any dispositive motions, see Order, Dkt. 4;
WHEREAS also on July 21, 2021, the Court directed the Clerk of Court to issue summonses as to all Defendants and ordered Plaintiff to serve a summons and the complaint on each Defendant within 90 days of the issuance of the summonses; the Court further directed that, if within those 90 days, Plaintiff did not either serve Defendants or request an extension of time to do so, the Court may dismiss the claims against Defendants under Rules 4 and 41 of the Federal Rules of Civil Procedure for failure to prosecute, see Order of Service, Dkt. 3;
WHEREAS Clerk of Court issued summonses as to all Defendants on July 21, 2021, see Dkt. 5;
WHEREAS Plaintiff's deadline for effecting service was October 19, 2021;
WHEREAS Plaintiff failed to file any affidavits of service by October 19, 2021;
WHEREAS on November 29, 2021, Judge Lehrburger provided Plaintiff one final opportunity to serve Defendants, ordering Plaintiff to serve the summonses and copies of the complaint on each Defendant by December 20, 2021; the Court further warned that failure to do so would result in dismissal of all claims against the Defendants, see Order, Dkt. 7;
WHEREAS Plaintiff failed to file any affidavits of service by December 20, 2021;
WHEREAS on January 13, 2022, Judge Lehrburger ordered Plaintiff to show cause on February 1, 2022 why the case should not be dismissed for failure to prosecute; the Court again warned that failure to appear and show cause would result in dismissal of all claims against the Defendants, see Order, Dkt. 8;
WHEREAS Plaintiff failed to appear at the February 1, 2022 hearing, or to otherwise contact the Court;
WHEREAS on February 2, 2022, Judge Lehrburger issued a R&R, recommending that this case be dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute, see R&R, Dkt. 9 at 2;
WHEREAS in the R&R, Judge Lehrburger notified the parties that, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), they had fourteen days to file written objections to the R&R's findings, see id. at 6;
WHEREAS Judge Lehrburger further noted that failure to file objections would result in both the waiver of objections and the preclusion of appellate review, see id.;
WHEREAS no objections were filed by either party;
WHEREAS in reviewing an R&R, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge," 28 U.S.C. § 636(b)(1)(C) ;
WHEREAS when, as here, no party objects to the R&R, the Court may accept the R&R provided that "there is no clear error on the face of the record," Heredia v. Doe, 473 F. Supp. 2d 462, 463 (S.D.N.Y. 2007) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) ); see also Fed. R. Civ. P. 72(b) advisory committee's note;
WHEREAS an error is clear when the reviewing court is left with a "definite and firm conviction that a mistake has been committed," see Cosme v. Henderson, 287 F.3d 152, 158 (2d Cir. 2002) (quoting McAllister v. United States, 348 U.S. 19, 20 (1954) ); and
WHEREAS careful review of the R&R reveals that there is no clear error;
IT IS HEREBY ORDERED that the R&R is adopted in full; this action is DISMISSED without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute.
Because the R&R gave the parties adequate warning, see R&R at 6, the failure to file any objections to the R&R precludes appellate review of this decision. See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision."). Because appellate review is precluded, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, permission to proceed in forma pauperis for purposes of appeal is denied.
IT IS FURTHER ORDERED that the Clerk of Court is respectfully directed to close this case. The Clerk of Court is further directed to mail a copy of this Order to the pro se Plaintiff at Joel Pena, 60 East 104th Street, Apt. 3E, New York, NY, 10029, and to note mailing on the docket.
SO ORDERED.
REPORT AND RECOMMENDATION TO HON. VALERIE E. CAPRONI: FAILURE TO PROSECUTE
ROBERT W. LEHRBURGER, United States Magistrate Judge.
Plaintiff Joe Pena, proceeding pro se , filed the complaint in this action on July 7, 2021. (Dkt. 1.) On July 21, 2021, Pena was directed to serve a summons and the Complaint on each defendant within 90 days of the issuance of the summonses. Pena was notified that, if he failed to do so and did not request an extension of time, the Court may dismiss the claims against the Defendants. (Dkt. 3.) The Clerk of Court issued summons for each Defendant on July 21, 2021. (Dkt. 4.) An information package, including copies of the summonses, was mailed to Pena on the same day. (Dkt. 6.) No proof or other indication of service since appeared on the record.
On November 29, 2021, the Court issued an order giving Pena "one final opportunity" and requiring service of the summons and Complaint on the Defendants no later than December 20, 2021. (Dkt. 7.) The order warned that Pena’ failure to effect service by that date would result in dismissal of all claims. No indication of service appears on the record.
On January 13, 2022, the Court issued an order requiring Pena to appear on February 1, 2022 to show cause why the case should not be dismissed for failure to prosecute. The Court specifically warned that failure to appear and show case would result in dismissal of all claims against Defendants. Pena did not appear, did not seek an adjournment, and did not contact the Court to provide any explanation. To date, the docket still reflects that Pena has not served the summons and Complaint on Defendants and has not requested an extension of time to do so.
For the reasons set forth below, the Court recommends that this case be dismissed without prejudice for Pena's failure to prosecute.
LEGAL STANDARDS
Federal Rule Of Civil Procedure 41(b) gives district courts the power to dismiss a case if "the plaintiff fails to prosecute" the case, "to comply with [the Federal Rules Of Civil Procedure]," or to comply with court orders. Fed. R. Civ. P. 41(b). Rule 41(b) does not define "failure to prosecute," but "[i]t can evidence itself either in an action lying dormant with no significant activity to move it or in a pattern of dilatory tactics." Lyell Theatre Corp. v. Loews Corp. , 682 F.2d 37, 42-43 (2d Cir. 1982). The "primary rationale" for dismissal pursuant to Rule 41(b) is "the failure of plaintiff in his duty to process his case diligently." Id. at 43.
Under Second Circuit precedent, courts may exercise this power sua sponte. See Martens v. Thomann , 273 F.3d 159, 179-80 (2d Cir. 2001) ; 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. Board of Education of The Enlarged City School District of Middletown , 820 F.3d 58, 64 (2d Cir. 2016) (quoting Jackson v. City Of New York , 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 , 682 F.2d at 42. The "court should not have to beg the parties before it to litigate the cases they initiate." McLean v. City Of New York. , No. 04-CV-8353, 2007 WL 415138, at *4 (S.D.N.Y. Feb. 6, 2007). However, courts should be mindful and " ‘should be especially hesitant to dismiss for procedural deficiencies where ... the failure is by a pro se litigant.’ " Spencer v. Doe , 139 F.3d 107, 112 (2d Cir. 1998) (quoting Lucas v. Miles , 84 F.3d 532, 535 (2d Cir. 1996) ).
The Second Circuit has articulated a five-factor framework for determining whether a court should dismiss a case under Fed. R. Civ. P. 41(b). This test requires the court to consider: (i) the duration of the plaintiff's failure to comply; (ii) whether the plaintiff was on notice that failure to comply would result in dismissal; (iii) whether the defendants are likely to be prejudiced by further delay in the proceedings; (iv) 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 (v) whether the judge has adequately considered a sanction less drastic than dismissal. Spencer, 139 F.3d at 112-13 (2d Cir. 1998) ; see also Ampudia v. Lloyd , 531 F. App'x 32, 34 (2d Cir. 2013) ; Shannon v. General Electric Co. , 186 F.3d 186, 193-94 (2d Cir. 1999). "No one factor is dispositive," and the determination is based on the "record as a whole." Lewis v. Rawson , 564 F.3d 569, 576 (2d Cir. 2009) (citing United States ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 254 (2d Cir. 2004) ). The decision to dismiss for failure to prosecute is committed to the district court's discretion. Ampudia, 531 F. App'x at 33 (citing LeSane v. Hall's Security Analyst, Inc. , 239 F.3d 206, 209 (2d Cir. 2001) ). Discussion
All of the factors relevant to the dismissal calculus under Fed. R. Civ. P. 41(b) are satisfied and, taken together, weigh heavily in favor of dismissal.
Duration of Failure to Comply : The first factor considers (a) "whether the failures to prosecute were those of the plaintiff," and (b) "whether these failures were of significant duration." Drake , 375 F.3d at 255 (citing Martens , 273 F.3d at 180 ). This element is amply met here. Pena has failed to take any action in this case since July 7, 2021 when he filed the Complaint. This period of inaction, over four months long, weighs strongly in favor of dismissal. See Sanchez v. Bracketron, Inc. , No. 20-CV-10102, 2021 WL 2440663, at *2 (S.D.N.Y. June 15, 2021) (finding this factor supported dismissal where "Plaintiff's inaction span[ned] more than three months"); Chavis v. City Of New York , No. 17-CV-9518, 2018 WL 6532865, at *3 (S.D.N.Y. Oct. 12, 2018) (dismissal after a four-month delay), R & R adopted , 2018 WL 6528238 (S.D.N.Y. Dec. 11, 2018).
Notice That Dismissal Would Result : Pena was clearly on notice that further delay could result in dismissal. Indeed, the Court warned him on three separate occasions. (See Dkts. 3, 7, 8.) Three warnings are more than sufficient to find this factor counsels in favor of dismissal. See Chavis , 2018 WL 6532865, at *4 (dismissal after two warnings); Leybinsky v. United States Citizenship And Immigration Services , No. 19-CV-6154, 2020 WL 7295661, at *2 (E.D.N.Y. Dec. 2, 2020) (dismissal after one warning).
Prejudice to Defendants From Further Delay : Although generally, "[p]rejudice to defendants resulting from unreasonable delay may be presumed," Lyell , 682 F.2d at 43, Defendants in this case have not yet appeared because Pena has failed to serve summons and the Complaint. On the surface, this factor does not favor dismissal; however, Pena has established his disinterest in pursuing his case, and further extending the litigation will almost certainly result in continued delay.
Balancing Court's Interest With Plaintiff's Interest : This factor requires the Court to consider, in relation to each other, the Court's interest in managing its docket and the plaintiff's interest in receiving a fair chance to be heard. In this regard, courts distinguish between failures to prosecute based on vexatious and burdensome conduct versus "silent unobtrusive" failures to prosecute in which the plaintiff simply does not file the requisite papers. See LeSane , 239 F.3d at 210 (noting that "vexatious and burdensome" failures to prosecute are more likely to cause court congestion than "silent and unobtrusive" failures to prosecute). Although Pena's failure to prosecute is a "silent" failure, the Court has a strong interest in managing its docket and cannot indefinitely wait for Pena 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 , No. 06-CV-6135, 2008 WL 4093057, at *2 (S.D.N.Y. Sept. 2, 2008) (citing Feurtado v. City Of New York , 225 F.R.D. 474, 480 (S.D.N.Y. 2004) ). The Court recognizes that pro se litigants usually are afforded extra solicitude, particularly with respect to procedural matters. However, the Court has reminded Pena of his obligation numerous times. Further, the recommendation for dismissal without prejudice permits Pena to bring this lawsuit at another time if and when he is prepared to properly prosecute it.
Consideration Of Less Drastic Sanctions : Finally, the Court has no reason to believe that any lesser sanction will succeed in altering Pena's behavior. Indeed, Pena did not even appear to explain why the case should not be dismissed when he was ordered to do so. See Ruzsa v. Rubenstein & Sendy Attorneys At Law , 520 F.3d 176, 178 (2d Cir. 2008) (per curiam) ("[I]n light of [plaintiff's] failure to respond to the notice threatening dismissal, it is ... unclear that a lesser sanction would have proved effective in this case.") Dismissal is therefore the appropriate sanction. See Nava v. Opai Thai Inc. , No. 20-CV-3848, 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 plaintiff's failure to cooperate").
CONCLUSION
For the foregoing reasons, I recommend that this action should be dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute.
DEADLINE FOR OBJECTIONS AND APPEAL
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Valerie E. Caproni, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 1007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.