Opinion
20cv00779 (PGG) (DF)
02-10-2021
ZEV YOURMAN, Plaintiff, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., Defendants.
Mr. Zev Yourman 1274 49th Street, #525 Brooklyn, NY 11219 Defense counsel
Mr. Zev Yourman 1274 49th Street, #525 Brooklyn, NY 11219 Defense counsel
THE HONORABLE PAUL G. GARDEPHE, U.S.D.J.
REPORT AND RECOMMENDATION
DEBRA FREEMAN United States Magistrate Judge
This Court having ordered pro se plaintiff Zev Yourman (“Plaintiff”) to show cause by January 22, 2021, why this Court should not recommend that this case be dismissed, for failure to prosecute (see Order To Show Cause, dated Jan. 4, 2021 (Dkt. 20)); and Plaintiff, to date, having made no submission in response to this Court's Order To Show Cause; despite over two weeks having passed since the stated deadline; I respectfully recommend, for these reasons and the reasons stated in this Court's January 4, 2021 Order To Show Cause (a copy of which is attached hereto for reference), that this action be dismissed without prejudice and this case be closed on the Docket of the Court.
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 Court in accordance with the attached instructions, and directed to the Honorable Paul G. Gardephe. 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).
The Clerk of Court is directed to mail a copy of this Report and Recommendation, together with the attached Order To Show Cause and Notice regarding Pro Se Filings, to Plaintiff at the address listed on the Docket and shown below.
ORDER TO SHOW CAUSE
In this Section 1983 action, commenced in January 2020, pro se plaintiff Zev Yourman (“Plaintiff”) has not, to date, responded either to the March 9, 2020 Order of the Honorable Paul G. Gardephe, U.S.D.J., directing him to file an amended complaint within 30 days of receiving information from the Metropolitan Transportation Authority (“MTA”) regarding the identities, badge numbers, and service addresses of the individual defendants named in the action as “John Does” and “Jane Does” (Dkt. 5), or to this Court's July 27, 2020 Order, sua sponte extending his time to file his amended complaint, but directing that he do so no later than August 14, 2020 (Dkt. 17). Nor has Plaintiff filed any response to Defendants' September 23, 2020 letter motion, seeking leave to file a motion to dismiss Plaintiff's claims under Rule 41(b) of the Federal Rules of Civil Procedure, for failure to prosecute. (Dkt. 18.) Indeed, this Court has received no communication from Plaintiff since he filed his Complaint a year ago.
A plaintiff has a general obligation to prosecute his case diligently, and, if he fails to do so, the Court may dismiss the action under Rule 41(b), for failure to prosecute. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). “A plaintiff's lack of diligence alone is enough for dismissal.” West v. City of New York, 130 F.R.D. 522, 526 (S.D.N.Y. 1990) (citation omitted). The Court need not wait for a motion to dismiss, see Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962), and is not required to provide notice of the dismissal, see West, 130 F.R.D. at 524. Indeed, because district courts are “necessarily vested” with the control required “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases, ” the Court may even dismiss an action with prejudice, where a plaintiff fails to prosecute his case. Link, 370 U.S. at 630-31.
Plaintiff's failure to take any steps, whatsoever, to prosecute this case since its inception raises the question of whether he still wishes to proceed with his claims. Under the circumstances, Plaintiff is directed to show cause, no later than January 22, 2021, why this Court should not recommend to Judge Gardephe that this action be dismissed without prejudice, for failure to prosecute. Any response by Plaintiff to this Order should be made in accordance with the attached filing instructions, which apply to pro se filings made during the period in which this Court remains affected by the COVID-19 pandemic.
The Clerk of Court is directed to mail a copy of this Order To Show Cause, together with the attached Notice regarding pro se filings, to Plaintiff, at the address listed on the Docket and shown below.
SO ORDERED
Notice to Plaintiff Regarding How To Make Pro Se Filings During the Period of the COVID-19 Outbreak:
The Court's Pro Se Office is not open for in-person visits at this time. Accordingly, until further notice by the Court, any filings by Plaintiff should be made in one of the following three ways:
(1) By email. This is the fastest way to file documents at this time. To file by email:
(a) Plaintiff must sign the document, either by signing before scanning or by typing his name after an s-slash, like this: “ Zev Yourman, ”
(b) the document must include Plaintiff's name, address, phone number, and email address (if available), and
(c) the subject line of the email must state that it is a pro se filing, and include the case number, as follows: “Pro Se Filing - 20cv00779”
The response may then be emailed to the following email address: Temporary_Pro_Se_Filing@nysd.uscourts.gov Documents submitted by email that do not comply with these instructions will be disregarded.
(2) By Drop Box. If Plaintiff is unable to email the materials he wishes to file, then he may drop them off at the courthouse. The drop box is located in the lobby of the 200 Worth Street entrance to the Daniel Patrick Moynihan (“DPM”) Courthouse, next to the security station, and is available 24 hours a day and 7 days a week to drop off filings. The Clerk's Office will retrieve drop box filings during the hours of 8:30 a.m. to 4:00 p.m., Monday through Friday. The materials should be clearly marked with Plaintiff's name and the case number.
(3) By mail. Plaintiff may still mail any papers to be filed to the DPM Courthouse, at the following address:
Pro Se Intake Unit U.S. Courthouse 500 Pearl Street New York, NY 10007.