Opinion
21 Civ. 918 (GBD) (GWG)
03-21-2022
ROBERT ROSENTHAL, Plaintiff, v. AETNA HEALTH INC., Defendant.
SECOND REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
As reflected in a Report and Recommendation filed June 9, 2021 (Docket # 25) previously issued in this case (“First Report”), plaintiff Robert Rosenthal, proceeding pro se, filed this lawsuit in New York state court on November 18, 2020. See Notice of Removal, filed February 3, 2021 (Docket # 1) (“Notice of Removal”), Ex. 1, Verified Complaint. Defendant Aetna Life Insurance Company, pled as Aetna Health, Inc., removed this case to federal court on February 3, 2021. See Notice of Removal.
The defendant filed a motion to dismiss (Docket # 14) on the ground that the plaintiff's claims were pre-empted by the Medicare Act and that plaintiff did not exhaust administrative remedies as required by the Medicare Act. See Memorandum of Law in Support of Motion to Dismiss, filed Mar. 16, 2021 (Docket # 15), at 6, 9. Plaintiff did not respond to this motion, although he was given multiple opportunities to do so. See First Report at 1. He also did not timely respond to an Order to Show Cause requiring him to show cause why this case should not be dismissed for failure to prosecute, setting a deadline of June 1, 2021, for plaintiff's response. See id.; Order to Show Cause, filed May 18, 2021 (Docket # 23). Several days after the deadline, plaintiff sent a three-sentence letter dated June 4, 2021, in which he asserted that he did not receive the order to show cause “until May 25, 2021,” and that “[d]ismissal of plaintiff's lawsuit is clearly not warranted.” Letter from Plaintiff, dated June 4, 2021 (Docket # 24). The undersigned issued the Report and Recommendation recommending dismissal of the case for failure to prosecute. See First Report at 3.
Plaintiff filed objections to the First Report on June 23, 2021, explaining that his failure to respond was because he suffered a stroke “in January of 2021.” (Docket # 26). In a Memorandum Decision and Order, dated February 3, 2022 (“Mem. Dec.”), Judge Daniels found that “Plaintiff's objections fell short of explaining how the stroke in January of 2021 hindered his ability to prosecute this action, or why he failed to provide this explanation in his June 4, 2021 response to Magistrate Judge Gorenstein's order to show cause.” Id. at 2. Nonetheless, Judge Daniels stated: “Considering Plaintiff's objections that bring to light for the first time this new context, the above-captioned case is hereby RECOMMITTED to Magistrate Judge Gorenstein for further proceedings to consider whether Plaintiff's stroke provides a reasonable excuse as to why he has so far failed to prosecute this case.” Id. at 3.
In response to this directive, the undersigned issued an Order on February 4, 2022, that stated:
Plaintiff shall file a letter by March 4, 2022, explaining why his stroke prevented him from complying the Court's prior orders. On or before the same date, he shall file a memorandum or letter setting forth any arguments he has to make in response to the motion to dismiss (dated March 16, 2021). Plaintiff shall file these papers on or before March 4, 2022.Order of February 4, 2022 (Docket # 28). The Order further stated:
If plaintiff fails to make any filing by March 4, 2022, this case may be dismissed for failure to prosecute under Rule 41 of the Federal Rules of Civil Procedure. If plaintiff needs additional time for a medical or any other reasons, he should file a letter so explaining.Id. The Order gave information regarding how to file his papers and also provided information on the Pro Se Intake Unit and the New York Legal Assistance clinic. See id.
Plaintiff filed no response to the February 4 Order. Accordingly, the Court has been supplied with no information as to “whether Plaintiff's stroke provides a reasonable excuse as to why he has so far failed to prosecute this case” as required by Judge Daniels Order. Mem. Dec. at 3. In light of the absence of any information on this critical question, we find that plaintiff has not provided a “reasonable excuse” for his failure to prosecute.
The purpose of the recommittal having been satisfied, the Court adheres to its prior recommendation that this case be dismissed for failure to prosecute for the reasons stated in the First Report. The Clerk is requested to mail a copy of this Report and Recommendation to plaintiff.
PROCEDURE FOR FILING 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 fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Daniels. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).