Opinion
19cv7405 (PGG) (DF)
05-13-2021
DARREN ROBERTS, Plaintiff, v. CITY OF NEW YORK, Defendant.
REPORT AND RECOMMENDATION
DEBRA FREEMAN UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE PAUL G. GARDEPHE, U.S.D.J.:
This Court having ordered plaintiff Darren Roberts (“Plaintiff”) to show cause by February 23, 2021, why this Court should not recommend that this case be dismissed for failure to prosecute, as the Docket did not reflect that defendant City of New York (the “City”) had ever been served with process, or that service had even been attempted since the action's commencement in 2019, and as Plaintiff's counsel of record, Carlos Gonzalez, Esq. (“Gonzalez”) had failed to respond to this Court's inquiries about the status of the case (see Order To Show Cause, dated Feb. 8, 2021 (Dkt. 4)); and Gonzalez having filed a response to the Order To Show Cause on February 23, 2021, stating, in that response: (1) that he was transitioning his career into a new area of law with a different organization, and that “his office ha[d] not been able to follow nor prosecute this matter as it should have[, ] as a result of the fact that counsel's office ha[d] been unwinding”; (2) that it was “unclear” to him, based upon his “review of the file, ” “whether service [had been] effectuated in a timely manner”; and (3) that Plaintiff wished to move forward with the case and “the deficiencies in prosecuting this matter as a result of counsel should . . . not be counted against [Plaintiff]” (Dkt. 5); and, in his February 23 submission, Gonzalez having further “request[ed] [one] month to bring this matter up to where it should be, under risk of dismissal” (id.); and Plaintiff having still failed to file proof of service within 30 days of that submission; and this Court, by Order dated April 12, 2021, having finally granted Plaintiff until April 30, 2021 to serve the City with process and to file proof of such service (Dkt. 6 (Mem. Endors.)); and this Court having stated, in its April 12 Order, that, “[i]f service has not been effected by that date, this Court will recommend that the case be dismissed without prejudice for failure to prosecute” (id.); and, despite the passage of another month, Plaintiff having still failed to file proof of service of process on the City or to respond in any other manner to this Court's April 12 Order, despite this Court's clear caution; and, indeed, Plaintiff having seemingly taken absolutely no steps to prosecute this action since its inception, even after this Court issued the above-referenced Orders; I respectfully recommend, for these reasons and based on the law discussed in this Court's Order To Show Cause (a copy of which is attached hereto for reference), that this action be dismissed without prejudice and that the case be closed on the Docket of the Court.
This Court notes that, although it is recommending that this case be dismissed without prejudice for failure to prosecute, it appears likely that many, if not all, of Plaintiff's claims would be time-barred, should he seek to re-file this action. (See Verified Complaint, dated Jan. 22, 2018 (Dkt. 1) (asserting, inter alia, multiple Section 1983 claims, based on an incident that allegedly occurred in August 2016); see also Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013) (noting that “Section 1983 actions filed in New York are . . . subject to a three-year statute of limitations” (citations omitted)).)
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, Plaintiff shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, should be filed with the Honorable Paul G. Gardephe, at the United States Courthouse, 40 Foley Square, Room 2204, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Gardephe. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (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. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).