Opinion
18 Civ. 12327 (PMH) (AEK)
03-04-2021
Onkar Singh, on his own behalf and on behalf of others similarly situated, Plaintiff, v. JGAJ Petroleum, Inc., d/b/a 310 Broadway Mobil, et al., Defendants.
HONORABLE PHILIP M. HALPERN, U.S.D.J.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE UNITED STATES MAGISTRATE JUDGE
BACKGROUND
On December 29, 2018, the law firm of Troy Law, PLLC, commenced this action on Plaintiff's behalf. ECF No. 1. Little progress had been made with respect to discovery over the ensuing months when, in the summer of 2020, it came to the Court's attention that “other than one hang-up phone call with Plaintiff on an unstated date, counsel ha[d] not had communication with Plaintiff since [a] February 23, 2019, meeting in counsel's office, despite having made substantial efforts to locate and communicate with him.” ECF No. 34 (Order to Show Cause dated July 27, 2020) at 3. Thereafter, in a letter dated August 14, 2020, Plaintiff's counsel notified the Court that they had finally been able to resume contact and meet with Plaintiff. ECF No. 45. At that time, Plaintiff confirmed to his counsel that he wished to proceed with this case, and a handwritten statement to that effect was attached to counsel's letter to the Court. Id. Accordingly, the Court ordered the parties to submit a revised discovery schedule, which the Court approved on September 25, 2020. ECF Nos. 48-50.
On November 24, 2020, following a status conference held on that same date, the Court extended certain discovery deadlines, ordering Plaintiff to provide verification of his interrogatory responses by December 4, 2020, and to provide written responses to defendants' request for production and produce all responsive, non-privileged documents by December 24, 2020. ECF No. 55. The Court also ordered that all depositions be completed by December 31, 2020. Id.
On December 3, 2020, Plaintiff's counsel submitted a letter to the Court, seeking a pre-motion conference to address their anticipated motion to withdraw as counsel due to Plaintiff's “refusal to comply with his obligations under Rule 26, and to comply with Court orders, despite our counsel.” ECF No. 56. Rather than hold a pre-motion conference, the Court granted a stay of discovery pending resolution of the motion to withdraw and set a briefing schedule for the motion. ECF No. 60. Plaintiff's counsel was directed to consult with Plaintiff and include in the motion to withdraw submission a statement regarding whether Plaintiff wished to continue to prosecute this action. Id.
On January 8, 2021, Plaintiff's counsel filed their motion to withdraw. ECF No. 61. In their motion papers, counsel recounted not being able to communicate with Plaintiff since December 1, 2020, as well as Plaintiff's failure to cooperate in the discovery process. ECF No. 61-1 (“Decl. of John Troy”). Specifically, Plaintiff's counsel explained that following the Court's issuance of the November 24, 2020 order extending discovery deadlines, counsel contacted Plaintiff by text message on November 28, 2020, as well as by telephone, about the need for Plaintiff to sign a verification statement to accompany his answers to interrogatories; Plaintiff responded that he would do so by November 30, 2020. Decl. of John Troy ¶¶ 5-6 & Ex. 1 (ECF No. 61-3). Counsel did not hear back from Plaintiff by November 30, however; counsel proceeded to call Plaintiff five times that day, but Plaintiff did not answer the telephone. Id. ¶ 7. Plaintiff's counsel also sent a text message to Plaintiff, but likewise received no response. Id. & Ex. 2 (ECF No. 61-4). Counsel called and text messaged Plaintiff again on December 1, 2020, but did not receive any response; in a second text message sent that day, counsel said they would bring Plaintiff a verification statement to sign in person. Id. ¶ 8 & Ex. 3 (ECF No. 61-5). At that point Plaintiff responded via text messages, stating that he did not want to pursue this case and that if counsel came to his home, he would call the police. See ECF No. 61-5 (text messages from Plaintiff stating “I don't [want] to do this case” and “If u come to my home [harassing] me than [sic] I will cal[l] the police”). After the Court ordered the briefing schedule for the motion to withdraw on December 8, 2020, Plaintiff's counsel served a copy of that order upon Plaintiff by mail on December 16, 2020, but “Plaintiff did not contact the office by any means by the end of 2020.” Id. ¶ 11 & Ex. 4 (ECF No. 61-6). Plaintiff's counsel text messaged Plaintiff again on January 5, 2021, attaching the Court's order of December 8, 2020; although Plaintiff apparently read the message, he never responded to it. Id. ¶ 12 & Ex. 5 (ECF No. 61-7).
The Court held a conference on January 27, 2021 to address the motion to withdraw. Plaintiff was ordered to appear at the conference by telephone, see ECF No. 60, but Plaintiff failed to appear. Following the conference, the Court issued an order directing Plaintiff's counsel to file proof of service upon Plaintiff of the motion to withdraw, file a letter with the Court regarding whether counsel intended to assert a retaining or charging lien, and file proof of service upon Plaintiff of the letter regarding the potential lien. ECF No. 65 (“January 27 Order”). The January 27 Order also directed Plaintiff's counsel to serve a copy of that order upon Plaintiff at his last known address by both regular mail and certified mail and file proof of service thereof. Plaintiff's counsel was also ordered to attempt to confirm by telephone that the motion papers, the letter regarding a retaining or charging lien, and the copy of the January 27 Order were received by Plaintiff, and to send a letter to the Court reporting the results of counsel's efforts. The January 27 Order instructed Plaintiff to file any objections to the motion to withdraw by February 24, 2021. Plaintiff was also directed to telephone the Court by that same date to inform the Court that he had received that order, to provide the Court with his contact information, and to state whether or not he had sent or intended to send any opposition to the motion to withdraw. The January 27 Order stated that even if Plaintiff did not oppose the motion to withdraw, he should still write a letter to the Court by February 24, 2021, informing the Court of same.
As instructed, Plaintiff's counsel filed an affirmation of service upon Plaintiff of the motion to withdraw, ECF No. 64, as well as a letter of their intent to file a motion for a charging lien by February 15, 2021, ECF No. 66, and affirmations of service upon Plaintiff of both the January 27 Order and the letter of intent to seek a charging lien by first class mail, ECF No. 67, text message, ECF No. 68, and certified mail, ECF No. 71. Plaintiff's counsel also filed a letter dated February 8, 2021, stating that as of that date, they “had already called and texted Plaintiff in seeking to confirm his receipt of the Court's letter and Plaintiff's counsel's letter. However, as of submitting this letter, Plaintiff's counsel received no response from Plaintiff at all.” ECF No. 72. Plaintiff has neither filed an opposition to the motion to withdraw nor contacted the Court as required by the January 27 Order.
Plaintiffs' counsel did not file a motion for a charging lien on the docket in this matter.
The Court assumes this is a reference to the January 27 Order.
Defendants have taken no position with respect to the motion to withdraw. ECF No. 62.
MOTION TO WITHDRAW
Under Local Civil Rule 1.4,
An attorney who has appeared as attorney of record for a party may be relieved or displaced only by order of the Court and may not withdraw from a case without leave of the Court granted by order. Such an order may be granted only upon a showing by affidavit or otherwise of satisfactory reasons for withdrawal or displacement and the posture of the case, including its position, if any, on the calendar, and whether or not the attorney is asserting a retaining or charging lien. All applications to withdraw must be served upon the client and (unless excused by the Court) upon all other parties.
A client's failure to cooperate with his or her attorney constitutes a “satisfactory reason” for the attorney's withdrawal. See, e.g., In re Fosamax Prods. Liab. Litig., Master File No. 06 MD 1789 (JFK), 2012 WL 2122166, at *1-2 (S.D.N.Y. June 12, 2012) (a plaintiff's “extended failure to cooperate with [his or] her attorneys' attempts to prosecute [his or] her action . . . creates a prima facie case for withdrawal under Local Civil Rule 1.4”); accord Fischer v. Biman Bangladesh Airlines, No. 96 Civ. 3120 (SHS) (AJP), 1997 WL 411446, at *1 (S.D.N.Y. July 18, 1997) (“[L]ack of cooperation by a client with its counsel, including lack of communication, is a sufficient reason for allowing withdrawal.”) (citing cases).
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) and Local Rule 7.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, copies of this case and other cases, infra, that are unpublished or only available by electronic database shall be simultaneously delivered to pro se Petitioner along with this Report and Recommendation.
Here, Troy Law, PLLC has demonstrated that Plaintiff has failed to cooperate in the prosecution of his case since at least December 1, 2020. Accordingly, the motion to withdraw (ECF No. 61) is being granted by a separate order filed herewith.
DISMISSAL FOR FAILURE TO PROSECUTE
As noted, neither the Court nor Troy Law, PLLC has heard from Mr. Singh since December 1, 2020. There was also a period of almost 18 months between February 2019 and August 2020 when Plaintiff's counsel was not able to communicate with Plaintiff regarding the prosecution of this action. The Court's January 27 Order warned Mr. Singh that “if he fails to telephone or write the Court as required by this Order, . . . this case may be dismissed for failure to prosecute under Rule 41 of the Federal Rules of Civil Procedure” [emphasis in original]. The January 27 Order was served upon Plaintiff at his last known address by first class mail, ECF No. 67, and certified mail, ECF No. 71, and was also transmitted to him by text message, ECF No. 68.
Rule 41(b) of the Federal Rules of Civil Procedure provides, in relevant part, that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” While the text of Rule 41(b) addresses only the situation in which a defendant moves for dismissal, “it is unquestioned that Rule 41(b) also gives the district court authority to dismiss a plaintiff's case sua sponte for failure to prosecute.” LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). Unless the court specifies otherwise, Rule 41(b) provides that dismissal “operates as an adjudication on the merits.”
While appellate courts apply a number of factors in evaluating the propriety of a dismissal for failure to prosecute, see Martens v. Thomann, 273 F.3d 159, 180 (2d Cir. 2001), a district court is not required to discuss these factors in dismissing a case as long as an explanation is given for the dismissal, see id.; Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). Here, it is evident that this case cannot proceed without Plaintiff's participation, and he has refused to cooperate in his attorneys' prosecution of this case for long stretches of time. Plaintiff has given no indication in response to recent court orders that he has any interest in continuing to pursue this matter, and even reported to his counsel as recently as December 1, 2020 that he did not want to proceed. See ECF No. 61-5 (text message from Plaintiff stating “I don't [want] to do this case.”). Accordingly, I respectfully recommend that the case be dismissed for failure to prosecute. See Liang v. Lucky Plaza Restaurant, No. 12 Civ. 5077 (PAC) (GWG), 2013 WL 3757036 (S.D.N.Y. July 17, 2013) (dismissing complaint without prejudice where plaintiff failed to cooperate with counsel's efforts to prosecute case).
CONCLUSION
For the foregoing reasons, I respectfully recommend that this case be dismissed without prejudice.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made by mail). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such 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 Philip M. Halpern, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Halpern, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).
SO ORDERED.
A copy of this Report and Recommendation is being mailed by Chambers to Plaintiff at 112 Stewart Avenue Extension, Apt. 3, Newburgh, NY 12550.
This is Plaintiffs last known address as set forth in counsel's affirmations of service. See ECF Nos. 64, 67, 71.