Opinion
04 Civ. 6032 (LAK) (KNF).
November 27, 2007
REPORT AND RECOMMENDATION
INTRODUCTION
Kasem Perezic ("Perezic"), proceeding pro se, commenced this action on August 4, 2004, against Local 32BJ, AFL-CIO, Service Employees International Union ("Local 32 BJ"), contending Local 32 BJ failed to represent him, in connection with his employment and his subsequent discharge, because of his race, religion and national origin, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e- 2000e-17. Before the Court is the defendant's motion to dismiss the plaintiff's complaint, for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b).
BACKGROUND
On January 12, 2005, after Local 32 BJ had filed its answer, Perezic notified the defendant of his intention to seek leave to amend his complaint. After the initial pre-trial conference was held with the Court, on March 17, 2005, an order was issued directing Perezic: (1) on or before March 24, 2005, to comply with the disclosure obligations imposed upon him by Fed.R.Civ.P. 26(a)(1); and (2) on or before March 31, 2005, to serve and file a motion to amend his complaint.
In a letter dated March 28, 2005, Perezic requested an enlargement of time to move to amend his complaint. The Court granted the request, enlarging the time to April 21, 2005. On April 21, 2005, Perezic made an application for a second enlargement of time to file his motion, due to his "untreated health conditions." The Court granted his application and enlarged the time to May 16, 2005. On July 19, 2005, during a telephonic conference, Perezic requested a third enlargement of time in order to complete pretrial activities. The Court granted his request, directing Perezic to file any motion he deemed appropriate, on or before August 8, 2005. The Court also advised Perezic, orally, to include an affidavit from his physician, explaining why his medical condition prevented him from prosecuting this action.
During a telephonic conference, held on April 16, 2007, Perezic informed the Court that he could not prosecute the action because of his poor health. The Court advised Perezic that the action cannot be maintained indefinitely without moving forward and explained that the defendant may move to dismiss the complaint for failure to prosecute if Perezic does not proceed. Perezic responded: "There's nothing I can do about it. I cannot change my health condition." Thereafter, the Court permitted Local 32 BJ to file a motion to dismiss. It was directed to do so on or before May 7, 2007. Perezic was directed to serve and file a response to the motion on or before May 29, 2007. The instant motion followed; it is unopposed.
DISCUSSION
Fed.R.Civ.P. 41(b)Fed.R.Civ.P. 41(b) provides, in pertinent part: "For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." Unless otherwise provided by the court's order, a dismissal under Rule 41(b) operates as an adjudication on the merits. See Fed.R.Civ.P. 41(b). Dismissing an action with prejudice, pursuant to Fed.R.Civ.P. 41(b), is within the trial court's discretion and "is a harsh remedy to be utilized only in extreme situations." Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972). Moreover, pro se litigants, such as Perezic, "should be granted special leniency regarding procedural matters." LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001).
In determining whether to dismiss an action pursuant to Fed.R.Civ.P. 41(b), courts consider the following factors: (1) the duration of the plaintiff's failures; (2) whether the plaintiff had been advised that further delays would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay in the litigation; (4) the balance between the court's interest in managing its docket and the plaintiff's right to due process; and (5) the efficacy of imposing a sanction less harsh than dismissal. See Romandette v. Weetabix Co., Inc., 807 F.2d 309, 312 (2d Cir. 1986) (citing Harding v. Fed. Reserve Bank of New York, 707 F.2d 46, 50 [2d Cir. 1983]). Typically, none of the factors is dispositive. See Nita v. Conn. Dep't of Envtl. Protection, 16 F.3d 482, 485 (2d Cir. 1994).
Duration
When determining if dismissal is appropriate for failure to prosecute, courts consider: (a) whether the failures to prosecute were entirely those of the plaintiff; and (b) whether these failures were of significant duration. See U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 255 (2d Cir. 2004). Delays may warrant dismissal after merely a matter of months or a period of years. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42-43 (2d Cir. 1982).
The defendant contends Perezic failed to: (i) take any action for over two and one-half years; (ii) respond to the defendant's discovery demands; (iii) make any discovery demands of his own; (iv) appear for his deposition on July 7, 2005; and (v) respond to the defendant's rescheduling proposals. Moreover, according to the defendant, the lengthy delay in the case at bar is entirely the plaintiff's fault.
The Court agrees with the defendant that the plaintiff was the sole cause of each delay in moving this action forward. He failed to: (a) participate in discovery; (b) move to amend his complaint, after requesting three enlargements of time to do so; and (c) respond to the instant motion. The Court finds that the delays resulting from Perezic's conduct were unreasonable and of significant duration. They have caused the action to languish, without any meaningful advancement toward a resolution, for approximately two and one-half years.
Notice
A district court must give a pro se plaintiff a specific warning that failure to comply with litigation obligations will result in dismissal of the complaint. See Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). The defendant contends the plaintiff "is aware of the consequences of his inaction" and has given no indication of when he intends to proceed. The plaintiff was advised by the Court, on April 16, 2007, that the action cannot be maintained forever without moving forward, and that his failure to prosecute would expose him to the defendant's motion to dismiss the complaint. Additionally, the instant motion, which the plaintiff failed to oppose, provided him with notice about the consequences of his failure to prosecute. The Court finds that Perezic received sufficient notice that his failure to prosecute could result in the dismissal of his complaint.
Prejudice
The plaintiff has a duty to prosecute his case with due diligence. See Lyell Theatre Corp., 682 F.2d at 43. A strong policy favoring the prompt disposition of cases exists. Id. "Prejudice to defendants resulting from unreasonable delay may be presumed, but in cases where delay is more moderate or excusable, the need to show actual prejudice is proportionally greater." Id. (internal citations omitted). The presumption of prejudice is rebuttable. See Norden Sys., Inc., 375 F.3d at 257.
The defendant alleges it has been prejudiced by the lengthy delays occasioned, inter alia, by the plaintiff's failure to: (i) provide initial disclosures; (ii) appear for a deposition; and (iii) move to amend his complaint, because it has been unable to gather evidence needed to prepare its defense. Moreover, the defendant argues, allowing the instant litigation to continue, without any action on the plaintiff's part, is contrary to a federal policy "favoring rapid resolution of labor disputes."
Perezic has shown no discernable interest in proceeding with the litigation he initiated approximately three years ago, and has offered no rebuttal to the presumption of prejudice that attends based on the long delays occasioned by his inaction. The plaintiff alleges his failure to prosecute this action has been due to poor health. However, Perezic failed to produce an affidavit from his physician explaining why his medical condition prevented him from prosecuting this action, despite the Court's directive that he do so. Based on the record as a whole, the Court finds that the defendant has been prejudiced by the plaintiff's unreasonable delays.
Balancing the Court's Docket and the Plaintiff's Due Process Interests
The defendant argues that the Court has been trying for several years to move the instant action through the judicial process, affording the plaintiff due process by providing him "numerous opportunities to amend his complaint" and prosecute the action.
A plaintiff that has been provided numerous opportunities to prosecute an action has been afforded due process, and a plaintiff's own failure to litigate a case is not a denial of due process. See Hamilton v. City of Lockport, No. 03-CV-24S, 2005 WL 975871, at *4 (W.D.N.Y. Apr. 20, 2005).
Here, the plaintiff has not been denied due process because the Court granted his three requests for enlargements of time to:(a) move to amend his complaint, (b) complete pretrial activities, and (c) file any motion he deemed appropriate. Perezic has delayed the litigation he initiated by failing to take advantage of the numerous opportunities the Court afforded him to move his case forward. Inasmuch as the Court has found that Perezic received due process but failed to take action to litigate his case, delaying the matter further and maintaining an inactive case on the court's docket are not warranted.
Efficacy of Lesser Sanctions
The Court must determine, after a careful assessment of the circumstances, whether a sanction(s) less harsh than dismissal would remedy any prejudice the defendant has suffered as a result of the plaintiff's failure to comply with court orders. See Norden Sys., Inc., 375 F.3d at 257; Mobley v. McCormick, 160 F.R.D. 599, 601 (D. Colo. 1995). The defendant contends that a sanction other than dismissal of the complaint will not have any effect because the "plaintiff has made it clear that nothing the Court can do will make him proceed."
Perezic's failure to participate in discovery and to move his case forward since its commencement, despite receiving grants of additional time to do so, demonstrates to the Court that any sanction short of dismissal will be ineffective and will not remedy the prejudice suffered by the defendant. The plaintiff has indicated to the Court his intent not to prosecute the instant action presently, and no certainty exists about whether or when Perezic will prosecute his action. In such a circumstance, a sanction(s) other than dismissal is inappropriate.
RECOMMENDATION
For the reasons set forth above, the Court recommends that the defendant's motion to dismiss, for failure of the plaintiff to prosecute this action, be granted with prejudice.
FILING OF 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 ten (10) days from service of this Report to file written objections. See also FED. R. CIV. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, United States District Judge, 500 Pearl St., Room 1310, New York, New York 10007, and to the chambers of the undersigned, 40 Centre St., Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).