Barreto v. Brown et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ARES BARRETO,
Plaintiff,
9:24-CV-0969
v. 	(FJS/ML)
N. RIZZO, Correctional Officer (R.C.C.F.),
Defendant.
____________________________________________
APPEARANCES: 	OF COUNSEL:
ARES BARRETO
Pro Se Plaintiff
190 Hoosick Street
Troy, New York 12180
(last known address)
JOHNSON & LAWS, LLC 	GREGG JOHNSON, ESQ.
Counsel for Defendant 	OLIVIA REINHARDT,
646 Plank Road, Suite 205 	ESQ.
Clifton Park, New York 12065
MIROSLAV LOVRIC, United States Magistrate Judge
REPORT and RECOMMENDATION
Currently before the Court, in this civil rights action filed by Ares Barreto (“Plaintiff”)
against N. Rizzo (“Defendant”), is Defendant’s motion to dismiss pursuant to Fed. R. Civ. P. 37
and 41(b) and motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 31.) For
the reasons set forth below, I recommend that Defendant’s motion to dismiss be granted.
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I. 	RELEVANT BACKGROUND
A. 	Procedural History
On August 7, 2024, Plaintiff commenced this action by the filing of a Complaint,
accompanied by a motion for leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.)
On September 16, 2024, Senior United States District Judge Frederick J. Scullin Jr.
granted Plaintiff’s IFP application and ordered that Plaintiff’s failure to protect claim pursuant to
the Fourteenth Amendment against Defendant survived sua sponte review and required a
response. (Dkt. No. 4.)
On September 16, 2024, Plaintiff filed a notice of change of address. (Dkt. No. 6.) The
Clerk of the Court re-sent Judge Scullin’s Order dated September 16, 2024, to Plaintiff’s new
address. (Docket entry dated 09/17/2024.)
On April 9, 2025, Defendant filed a motion to compel. (Dkt. No. 20.) The Court
directed Plaintiff to file a response to Defendant’s motion and scheduled an on the record hearing
for May 2, 2025. (Dkt. No. 22.)
The Court held a hearing on May 2, 2025, and Plaintiff failed to appear or file a response
to Defendant’s motion to compel. (Minute entry dated 05/02/2025.) Plaintiff was “ADVISED
THAT FAILURE TO COMPLY WITH COURT ORDERS, OR FAILURE TO ENGAGE
IN THE DISCOVERY PROCESS, OR FAILURE TO APPEAR FOR DEPOSITION, OR
FAILURE TO KEEP UPDATED WITH THE COURT IN WRITING HIS ADDRESS
AND CONTACT INFORMATION, MAY RESULT IN SANCTIONS BEING IMPOSED
PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE.”
(Id.; accord Dkt. No. 23.) The Court scheduled a hearing for June 6, 2025, and directed that
Plaintiff appear in person for the hearing. (Dkt. No. 23.)
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On May 30, 2025, the Court received returned as undeliverable the Minute Entry dated
05/02/2025, the Text Order dated May 2, 2025, and the Notice of Hearing dated May 2, 2025.
(Dkt. No. 25.)
On June 6, 2025, the Court held a hearing and Plaintiff failed to (1) appear for the
hearing, (2) file a response to the motion to compel, (3) file a status report as directed, and (4)
comply with his discovery obligations as set forth by the Court. (Minute Entry dated
06/06/2025.) Plaintiff was “ADVISED THAT FAILURE TO COMPLY WITH COURT
ORDERS, OR FAILURE TO ENGAGE IN THE DISCOVERY PROCESS, OR FAILURE
TO APPEAR FOR DEPOSITION, OR FAILURE TO KEEP UPDATED WITH THE
COURT IN WRITING HIS ADDRESS AND CONTACT INFORMATION, MAY
RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41,
INCLUDING DISMISSAL OF THE CASE.” (Id.; accord Dkt. No. 26.) The Court scheduled
a hearing for June 30, 2025, and directed that Plaintiff appear in person for the hearing. (Dkt.
No. 26.)
On June 25, 2025, the Court received returned as undeliverable the Minute Entry dated
06/06/2025, and the Text Order dated June 6, 2025. (Dkt. No. 27.)
On June 30, 2025, the Court held a hearing and Plaintiff failed to (1) appear for the
hearing, (2) file a response to the motion to compel, (3) file a status report as directed, and (4)
comply with his discovery obligations as set forth by the Court. (Minute Entry dated
06/30/2025.) Plaintiff was “ADVISED THAT FAILURE TO COMPLY WITH COURT
ORDERS, OR FAILURE TO APPEAR FOR COURT PROCEEDINGS, OR FAILURE
TO ENGAGE IN THE DISCOVERY PROCESS, OR FAILURE TO APPEAR FOR
DEPOSITION, OR FAILURE TO KEEP UPDATED WITH THE COURT IN WRITING
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HIS ADDRESS AND CONTACT INFORMATION, MAY RESULT IN SANCTIONS
BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL
OF THE CASE.” (Id.; accord Dkt. No. 28.) The Court scheduled a hearing for July 31, 2025,
and directed that Plaintiff appear in person for the hearing. (Dkt. No. 28.)
On July 31, 2025, the Court held a hearing and Plaintiff failed to (1) appear for the
hearing, (2) file a response to the motion to compel, (3) file a status report as directed, and (4)
comply with his discovery obligations as set forth by the Court. (Minute Entry dated
07/31/2025.) Plaintiff was “ADVISED THAT FAILURE TO COMPLY WITH COURT
ORDERS, OR FAILURE TO APPEAR FOR COURT PROCEEDINGS, OR FAILURE
TO ENGAGE IN THE DISCOVERY PROCESS, OR FAILURE TO APPEAR FOR
DEPOSITION, OR FAILURE TO KEEP UPDATED WITH THE COURT IN WRITING
HIS ADDRESS AND CONTACT INFORMATION, MAY RESULT IN SANCTIONS
BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL
OF THE CASE.” (Id.; accord Dkt. No. 29.) The Court scheduled a hearing for September 15,
2025, and directed that Plaintiff appear in person for the hearing. (Dkt. No. 29.) In addition, the
Court directed Plaintiff to show cause, in writing by September 5, 2025, why this case should not
be dismissed. (Id.)
On September 15, 2025, the Court held a hearing and Plaintiff failed to (1) appear for the
hearing, (2) file a response to the motion to compel, (3) file a status report as directed, (4)
comply with his discovery obligations as set forth by the Court, and (5) show cause why the
action should not be dismissed. (Minute Entry dated 09/15/2025.) Plaintiff was “ADVISED
THAT FAILURE TO COMPLY WITH COURT ORDERS, OR FAILURE TO APPEAR
FOR COURT PROCEEDINGS, OR FAILURE TO ENGAGE IN THE DISCOVERY
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PROCESS, OR FAILURE TO APPEAR FOR DEPOSITION, OR FAILURE TO KEEP
UPDATED WITH THE COURT IN WRITING HIS ADDRESS AND CONTACT
INFORMATION, MAY RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO
FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE.” (Id.) The Court
authorized Defendant to file a dispositive motion in this matter.
On October 16, 2025, Defendant filed the pending motion. (Dkt. No. 31.) The deadline
for Plaintiff to file a response to Defendant’s motion was November 13, 2025. (Dkt. No. 33.)
On November 17, 2025, the Court sua sponte granted Plaintiff an extension of time until
December 17, 2025, to file a response to Defendant’s motion. (Dkt. No. 34.) Plaintiff was
cautioned that his “failure to file any response may result in the motion being granted since the
Court will not have the benefit of Plaintiff's response to consider in making its decision.” (Id.)
On January 14, 2026, the Court again sua sponte granted Plaintiff an extension of time until
February 17, 2026, to file a response to Defendant’s motion. (Dkt. No. 35.)
To date, Plaintiff has not responded to Defendant’s motion. (See generally docket sheet.)
B. 	Defendant’s Motion
Generally, in support of his motion to dismiss and motion for summary, Defendant
asserts the following five arguments: (1) Defendant is entitled to dismissal of the Complaint
based on Plaintiff’s disregard of this Court’s orders and his failure to prosecute; (2) Plaintiff
failed to exhaust his available administrative remedies under the Prison Litigation Reform Act
(“PLRA”); (3) the actions or inactions of Defendant were not violative of the Fourteenth
Amendment because (a) the undisputed facts to do not support Plaintiff’s failure to protect claim,
and (b) the undisputed facts do not support Plaintiff’s implied failure to intervene claim; (4) in
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the alternative, Defendant is entitled to qualified immunity; and (5) in the alternative, Plaintiff is
not entitled to punitive damages. (See generally Dkt. No. 31, Attach. 17.)
II. 	LEGAL STANDARDS GOVERNING A MOTION TO DISMISS FOR FAILURE
TO PROSECUTE
For reasons that are self-evident, this Court’s local rules require that “[a]ll attorneys of
record and pro se litigants immediately notify the Court of any change of address.” N.D.N.Y.
L.R. 10.1(c)(2) (emphasis omitted). As one court has observed with respect to this requirement,
[i]t is neither feasible nor legally required that the clerks of the district
courts undertake independently to maintain current addresses on all parties
to pending actions. It is incumbent upon litigants to inform the clerk of
address changes, for it is manifest that communications between the clerk
and the parties or their counsel will be conducted principally by mail. In
addition to keeping the clerk informed of any change of address, parties
are obliged to make timely status inquiries. Address changes normally
would be reflected by those inquiries if made in writing.
Dansby v. Albany Cnty. Corr. Facility Staff, 95-CV-1525, 1996 WL 172699, at *1 (N.D.N.Y.
Apr. 10, 1996) (Pooler, J.) (quoting Perkins v. King, 84-3310, 1985 U.S. App. LEXIS 31736, at
*4 (5th Cir. Mar. 19, 1985)).
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its
discretion, order dismissal of an action based on a plaintiff's failure to prosecute or comply with
an order of the court.1 Fed. R. Civ. P. 41(b); Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir.
2014); Rodriguez v. Goord, 04-CV-0358, 2007 WL 4246443, at *2 (N.D.N.Y. Nov. 27, 2007)
1 	Although Rule 41(b) grants a defendant leave to move for dismissal based on a plaintiff’s
failure to prosecute or comply with a court order (rather than grant the court explicit authority to
dismiss sua sponte), “courts retain the ‘inherent power’ to sua sponte ‘clear their calendars of
cases that have remained dormant because of the inaction or dilatoriness of the parties seeking
relief.’” Rodriguez v. Goord, 04-CV-0358, 2007 WL 4246443, at *2 (N.D.N.Y. Nov. 27, 2007)
(Scullin, J.) (quoting link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). Indeed, the local rules
of this Court recognize this authority and mandate that the Court exercise it under certain
circumstances. See, e.g., N.D.N.Y. L.R. 41.2(a).
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(Scullin, J. adopting report and recommendation by Lowe, M.J.). That discretion should be
exercised when necessary to “achieve the orderly and expeditious disposition of cases.” Link v.
Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition, it should be exercised with caution
and restraint because dismissal is a particularly harsh remedy, especially when invoked against a
pro se plaintiff. Baptiste, 768 F.3d at 216-17.
A determination of whether to dismiss an action pursuant to Rule 41(b) is informed by
consideration of the following five specific factors: (1) the duration of the plaintiff's failure to
comply with court orders; (2) whether the plaintiff was on notice that failure to comply would
result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay in the
proceedings; (4) a balancing of the court’s interest in managing its docket with the plaintiff’s
interest in a fair chance to be heard; and (5) whether the imposition of sanctions less drastic than
dismissal is appropriate. Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citing Jackson v. City
of New York, 22 F.3d 71, 74 (2d Cir. 1994); Alvarez v. Simmons Mkt. Research Bureau, Inc., 839
F.2d 930, 932 (2d Cir. 1988)); see also Shannon v. Gen. Elec.Co.,186 F.3d 186, 193-94 (2d Cir.
1999); Lebarron v. Warren Cnty. Sheriff’s Office, 13-CV-1572, 2016 WL 2621796, at *4, n.3
(N.D.N.Y. Apr. 6, 2016) (Hummel, M.J.) (quoting Barney v. Consol. Edison Co. of New York,
99-CV-0823, 2006 WL 4401019, at *16 (E.D.N.Y. July 19, 2006)) (“‘[C]ourts consider the same
factors applicable to Rule 41(b) when considering dismissal pursuant to Rule 37.’”), report and
recommendation adopted, 2016 WL 2636293 (N.D.N.Y. May 6, 2016) (Suddaby, C.J.).
Rule 37(d) of the Federal Rules of Civil Procedure provides that if an individual fails to
appear at his own deposition after having received proper notice, the court may take various
steps to sanction the disobedient party. Fed. R. Civ. P. 37(d)(1)(A)(i). Section 37(d) cross
references Rule 37(b)(2)(A)(v), which also authorizes the court to dismiss an action for failure to
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comply with a discovery order. The imposition of sanctions under Rule 37 is within the
discretion of the district court, and the sanction of dismissal is a harsh remedy to be used “only in
extreme situations.” Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 764 (2d Cir. 1990).
In order to impose such a severe sanction, the court must find willfulness, bad faith, or fault on
the individual from whom discovery is sought. Bobal, 916 F.2d at 764. The party in question,
particularly a pro se litigant, must have had prior notice that violation of the court’s order would
result in dismissal with prejudice. Simmons v. Abruzzo, 49 F.3d 83, 88 (2d Cir. 1995).
III. 	ANALYSIS
After carefully considering the matter, I recommend that Defendant’s motion to dismiss
for failure to prosecute be granted for the reasons stated in his memorandum of law. (Dkt. No.
31, Attach. 17 at 14-16.) The following is intended to supplement—not supplant—those
reasons.
Plaintiff was specifically informed of the requirement that he update his address with the
Clerk of the Court or risk dismissal of his lawsuit, when he was provided with (1) Senior Judge
Scullin’s decision and order dated September 16, 2024 (Dkt. No. 4 at 14), (2) the undersigned’s
order of May 2, 2025 (Dkt. No. 23), (3) the undersigned’s order of June 6, 2025 (Dkt. No. 26),
(4) the undersigned’s order of June 30, 2025 (Dkt. No. 28), and (5) the undersigned’s order of
July 31, 2025 (Dkt. No. 29).
Moreover, despite the fact that Plaintiff has previously notified the Court of his address
change (Dkt. No. 6), based on the return of mail sent to Plaintiff by the Court (Dkt. Nos. 25, 27),
it appears that Plaintiff has failed to provide notification of his most recent address change to the
Court and Defendant’s counsel.
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Based upon careful consideration of the foregoing relevant factors, I conclude that
dismissal of Plaintiff's Complaint at this juncture is warranted. The inability of the Court to
communicate with Plaintiff is due solely to his failure to prosecute or to provide the Court with
his updated address. Plaintiff's failure to proceed in this action has a substantial injurious effect
on the litigation, and there is no end to Plaintiff's inaction in sight.
Pursuant to Local Rule 41.2(a), “the plaintiff’s failure to take action for four (4) months
shall be presumptive evidence of lack of prosecution.” N.D.N.Y. L.R. 41.2(a). The last contact
that Plaintiff had with the Court was on November 22, 2024—over seventeen months ago—
when he filed a motion seeking appointment of counsel. (Dkt. No. 17; see generally docket
sheet.)
Despite Plaintiff's awareness of his responsibility, he has failed to provide an updated
address to the Court. Given Plaintiff's manifest disinterest in pursuing his claims in this action, I
find that the need to alleviate congestion on the Court’s docket and Defendant’s interest in
defending against the claims asserted by Plaintiff, outweigh his right to receive a further
opportunity to be heard in this matter. As required, I have considered less-drastic sanctions, but
reject them as ineffective. For example, I am persuaded that issuing an order reprimanding
Plaintiff for his conduct would be futile, given that such an order would, in all likelihood, never
reach Plaintiff due to his failure to provide the Court with a current address.
For each of these reasons and those set forth by Defendant in Defendant’s moving papers
(Dkt. No. 31), I recommend that Plaintiff’s Complaint be dismissed with prejudice for failure to
prosecute pursuant to Fed. R. Civ. P. 41(b).2
2 	To the extent that the assigned District Judge disagrees with this recommendation, it is
requested that Defendant’s motion for summary judgment be returned to the undersigned for
consideration of his arguments.
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ACCORDINGLY, it is respectfully
RECOMMENDED that Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED in its
entirety, pursuant to Fed. R. Civ. P. 41(b), based on his failure to prosecute and comply with this
Court’s orders and local rules of practice; and it is further
RECOMMENDED that Defendant’s motion to dismiss for failure to prosecute (Dkt. No.
31) be GRANTED; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report and
Recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.3
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have
fourteen (14) days within which to file written objections to the foregoing report.4 Such
objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS
REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human
Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: April __, 2026
Binghamton, New York
3 	The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
4 	If you are proceeding pro se and served with this report, recommendation, and order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date that the report, recommendation, and order was mailed to you to
serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. FED. R. CIV. P. 6(a)(1)(C).
27
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Barney v. Consolidated Edison Co. of New York, Not Reported in F.Supp.2d (2006)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2006 WL 4401019
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Dorothy BARNEY, Plaintiff,
v.
CONSOLIDATED EDISON COMPANY
OF NEW YORK, Defendant.
No. 99-CV-823 (DGT).
|
July 19, 2006.
Attorneys and Law Firms
Dorothy Barney, New York, NY, pro se.
Barbara Jane Carey, Consolidated Edison Company, New
York, NY, for Defendant.
REPORT AND RECOMMENDATION
GOLD, S., U.S.M.J.
INTRODUCTION
*1 Plaintiff Dorothy Barney filed her complaint in this
action on February 10, 1999, alleging that defendant
Consolidated Edison Company of New York (“Con Ed”)
discriminated against her in violation of Title VII of the
Civil Rights Act of 1964, as codified at 42 U.S.C. §§ 2e
to 2000e-17, in violation of the Age Discrimination Act
of 1967, as codified at 29 U.S.C. §§ 621 to 634, and in
violation of the Americans with Disabilities Act of 1990, as
codified at 42 U.S.C. §§ 12112 to 12117. Docket Entry 2.
More than six years later, on February 28, 2005, defendant
moved to dismiss the complaint for failure to prosecute and
for failure to comply with court orders. Memorandum of Law
in Support of Defendant's Motion to Dismiss (“Def.'s Mem.”),
Docket Entry 83. In the alternative, defendant sought to close
plaintiff's right to take discovery, to preclude plaintiff's expert
from testifying at trial, and to continue plaintiff's deposition.
Id. The Honorable David G. Trager has referred this motion
to me for a report and recommendation. Docket Entry 87. I
respectfully recommend that defendant's motion to dismiss be
granted.
BACKGROUND
Plaintiff originally filed her complaint pro se on February 10,
1999. Docket Entry 2. At the initial conference held on July
2, 1999, I stayed discovery to provide plaintiff an opportunity
to obtain counsel. Docket Entry 17. In November of 1999,
Malik Cutlar, who works with Stephen T. Mitchell, appeared
on behalf of plaintiff and discovery began with a deadline
of June 30, 2000. Docket Entry 20. On January 4, 2000,
Mr. Mitchell filed a notice of appearance on behalf of Ms.
Barney. Docket Entry dated Jan. 4, 2000. Upon application
of plaintiff's counsel, the original discovery deadline was
extended to November 15, 2000. Docket Entry 24.
1. Plaintiff failed to respond to initial discovery demands.
By letter dated February 6, 2001, defendant informed the
Court that plaintiff failed to comply with discovery demands
despite repeated requests. In particular, Mr. Mitchell failed
to answer interrogatories served nine months prior, failed
to supply executed authorizations, and failed to provide
defendant with EEOC documents plaintiff had promised to
provide ten months prior. Def.'s Letter dated Feb. 6, 2001. 1
Defendant's counsel, Barbara Jane Carey, noted that, without
this missing discovery, she could not proceed with plaintiff's
deposition. Id. On February 7th, Mr. Mitchell responded
that he would provide documents that day. Pl.'s Letter dated
Feb. 7, 2001. By letter dated February 12, 2001, defendant
pointed out that Mr. Mitchell did provide some documents
the previous week but they were not responsive to her prior
demands.
In light of Mr. Mitchell's lengthy delay in answering discovery
demands, I attempted to move this case forward by setting
specific deadlines for various discovery events. Docket Entry
28. At a conference on February 21, 2001, I ordered that
plaintiff's deposition would take place on April 30, 2001 and
indicated that it could be adjourned only by stipulation filed
with the court by April 16, 2001 and for no more than thirty
days. Id. In addition, I ordered plaintiff's counsel to serve
notices for all depositions he intended to take by April 2,
2001, for the notices to schedule the depositions during the
same week as Ms. Barney's, subject to adjournment only
under the same circumstances as Ms. Barney's deposition.
Id. At this conference, Mr. Mitchell indicated that he did not
anticipate calling any expert witnesses at trial. Id.
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2. Plaintiff failed to take discovery on the dates ordered by
the court in February, 2001.
*2 In violation of my February 21, 2001 ruling, plaintiff
asked to move Ms. Barney's deposition back one day only
three days before her scheduled deposition. Pl.'s Letter dated
Apr. 27, 2001. Mr. Mitchell later agreed to proceed with
Ms. Barney's deposition as scheduled. Pl.'s Second Letter
of Apr. 27, 2001. At this time, Ms. Carey asserted that
Mr. Mitchell never served deposition notices as required by
my February 21st order. Def.'s Letter dated Apr. 27, 2001.
Mr. Mitchell responded that he mailed deposition notices by
the required date, as well as interrogatories and document
requests, to which defendant had not responded. Id. At a
telephone conference on April 27th, I directed defendant to
respond to the discovery demands within three weeks. Docket
Entry 29. I also scheduled several depositions and ruled that
unavailability of counsel would not be grounds for adjourning
these depositions. Id . I set June, 2001 as the new deadline for
discovery. Id.
3. Discovery remained incomplete six months after the
adjourned deadline of June, 2001.
The discovery deadline was subsequently extended several
more times over the course of the following year. Docket
Entries 30-34 and Endorsed Orders. At a conference on
December 19, 2001, plaintiff indicated his intention to call
non-party witnesses at trial. I ordered Mr. Mitchell to identify
those witnesses by January 4, 2002. Docket Entry 33. Plaintiff
had also now decided she would seek to offer expert testimony
at trial. I set February 8, 2002 as the deadline for plaintiff's
expert reports, and extended the discovery deadline to April
19, 2002. Id.
4. Plaintiff failed to meet the April 19, 2002 deadline and
preclusion sanctions were imposed.
At a conference on April 25, 2002, upon learning that plaintiff
had not produced her expert reports by February 8, 2002
as I had previously ordered, I ruled that plaintiff would be
precluded from introducing any expert medical testimony at
trial. Docket Entry 35. I further ordered plaintiff to produce
any accounting expert report on pain of preclusion by July
15, 2002. Id. The parties had agreed on dates for several
depositions to occur during May and June of 2002 and I
ruled that those depositions could proceed. Docket Entries
34, 35. In light of the repeated extensions of the discovery
deadline I had already granted, however, I ruled that failure
of the noticing party to proceed would constitute a waiver
of the right to conduct the deposition and that any failure of
the noticed party to appear for a deposition might result in
sanctions, including dismissal or default. Docket Entry 35.
5. Plaintiff again failed to complete depositions during May
and June of 2002.
Despite my April 25th rulings, the depositions did not go
forward as scheduled. Defendant wrote to the court in May
concerning Mr. Mitchell's cancellation of the previously-
scheduled deposition dates and his refusal to set new
ones. Def.'s Letter dated May 29, 2002. In her letter, Ms.
Carey noted that she made calls and sent letters to Mr.
Mitchell over the course of the preceding month with no
response. Id. Again I granted Mr. Mitchell additional time
to reschedule depositions. See Docket Entry 36. During a
telephone conference with the parties on June 3rd, I ordered
two depositions to proceed during June and directed the
parties to confer and advise my chambers within two days
of dates set for the depositions of three remaining witnesses
named Watkins, Correa, and Austin. Docket Entry 36. On
June 10th, Ms. Carey wrote to the Court stating that Mr.
Mitchell had not contacted her to schedule the depositions.
Docket Entry 37. Again I intervened and set specific dates in
July and September for the depositions. Docket Entry 38. I
warned plaintiff that failure to proceed with the depositions
of the three witnesses in issue would result in an order
precluding them from testifying at trial. Id.
6. Plaintiff failed to proceed with Court-ordered depositions
during the summer of 2002, despite my preclusion warning.
*3 Mr. Mitchell failed to take the July and September
depositions as scheduled. Three days before the first
scheduled deposition, the deposition of Watkins, Mr. Mitchell
wrote to the Court indicating that he had transposed the
witnesses and their deposition dates and wished to change
the schedule. Docket Entry 39. I urged the parties to work
together to reschedule the Watkins deposition and ordered the
second deposition to proceed as previously scheduled. Order
endorsed on Pl.'s Letter dated July 8, 2002, Docket Entry 39.
The day before the second deposition, Mr. Mitchell wrote
to inform the Court that he was withdrawing the witness,
Correa. 2 Pl.'s Letter dated July 17, 2002. By letter dated
August 6, 2002, Mr. Mitchell wrote to the Court stating that
the third deposition-the deposition of Austin-would not be
able to go forward as scheduled the following month due to
a scheduling conflict on his part. Docket Entry 40. I granted
Mr. Mitchell additional time to depose Austin. Mr. Mitchell
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Barney v. Consolidated Edison Co. of New York, Not Reported in F.Supp.2d (2006)
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also indicated that there were three individuals not previously
identified whom he wished to depose. Id.
During a telephone conference on August 12, 2002, I granted
plaintiff additional time yet again and ordered that all
remaining depositions needed to be held before September
24, 2002. I directed the parties to provide me with a
schedule specifying the date for each remaining deposition
by September 10, 2002. Docket Entry 41. By letter dated
September 10th, defendant's counsel informed me that her
efforts to speak with Mr. Mitchell to coordinate deposition
dates had, like before, been unsuccessful. Docket Entry 42.
On September 20th, Ms. Carey wrote to the Court yet again
concerning her inability to speak to Mr. Mitchell to schedule
depositions. As I had several times before, I intervened and
afforded plaintiff additional time. At a previously scheduled
conference on October 8th, I set dates for depositions of
various witnesses, including-despite my prior warnings of
preclusion-Austin. Docket Entry 43. I again warned that
sanctions would be imposed for failure to proceed. Id. I set
a new date for plaintiff's economic expert report and ordered
that all expert depositions be completed by January 15, 2003.
Id.
7. Plaintiff failed to comply with the discovery deadlines set
on October 8, 2002.
During the conference on October 8th, I directed that the
deposition of a witness named Donohue proceed on October
18th. This direction was made subject to the warnings
described in the preceding paragraph. Nevertheless, on
October 17, 2002, Mr. Mitchell requested an adjournment
of the court-ordered deposition of Donohue scheduled for
the following day. Docket Entry 45. I denied that request
based on Mr. Mitchell's repeated requests for extensions and
cancellations of depositions and held that plaintiff's right to
take the Donohue deposition had now been waived. Id.
In a letter dated December 2, 2002, defendant informed the
Court of a number of discovery deficiencies by plaintiff.
Specifically, defendant alleged that Mr. Mitchell 1) failed to
produce a plaintiff's witness on a court-ordered deposition
date and failed to take a deposition of a defense witness; 2)
failed to comply with an aspect of my order of October 8, 2002
directing plaintiff to provide Ms. Carey updated information
concerning plaintiff's medical doctors; 3) failed to provide
authorizations for defendant to obtain the records of two
medical practitioners newly identified by plaintiff; 4) failed
to provide an expert report by plaintiff's expert economist,
Dr. Frank Tinari, by the court-ordered date of November
8th, or even by December 2, 2002 (the date of defendant's
letter); 5) failed to comply with an April 25th order to
reimburse defendant's expenses for a deposition that plaintiff
cancelled without notice; and 6) failed to provide defendant
with deposition transcripts. In response, Mr. Mitchell disputed
some of these failures and indicated that he intended to cure
any deficiencies forthwith. Pl.'s Letter dated Dec. 3, 2002. In
particular, Mr. Mitchell stated that he would provide the Tinari
expert report by December 20, 2002, writing that “Dr. Tinari
can provide the report by that date and be available in early
January for deposition.” Id. at 2.
8. Although granted additional time yet again, plaintiff
failed to complete discovery by the deadlines set at the final
discovery conference on December 20, 2002.
*4 I held yet another conference on December 20, 2002. At
that time, I granted Mr. Mitchell additional time to complete
expert discovery, set specific dates for the depositions of
certain remaining fact witnesses, and ruled that discovery was
otherwise closed. Docket Entry 49. During the course of the
conference, I expressed my frustration with plaintiff's counsel
and issued certain rulings. First, I noted that “deadlines
come and go, dates get scheduled and they're missed with
regularity” by plaintiff. Tr. of Dec. 20, 2002, Docket Entry
49, at 3. Mr. Mitchell conceded that his is a “small firm
and [he] do[es]n't always make deadlines.” Id. at 11. He
acknowledged that his economic expert's report was overdue,
that an order to produce the report by mid-January would give
him “more than enough time,” and that preclusion would be
appropriate if he failed to meet that deadline. Id. at 11-12.
I ordered the report produced by January 10, 2003 on pain
of preclusion. Id. at 14-15. I again ordered Mr. Mitchell to
pay the expenses defendant incurred when Mr. Mitchell failed
to appear for a scheduled deposition, and directed that the
amount would double if the payment was not made by January
1, 2003. Id. at 16. Despite his failure to complete previously-
requested discovery in a timely fashion, Mr. Mitchell made
an application to take additional discovery at this conference.
Id. at 23-27. I denied that request based on plaintiff's history
of non-compliance with court-ordered discovery schedules
and ordered discovery closed, except for that which had
already been scheduled. Id. at 27-28. Citing a number of
specific instances, I noted that the “vast majority of these
deadline problems and scheduling problems were the result of
plaintiff's failure to comply with court-ordered deadlines .” Id.
By letter dated February 24, 2003 defendant wrote to the
Court concerning plaintiff's failure to comply with my
December 20th rulings. Specifically, Ms. Carey asserted that
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Mr. Mitchell 1) failed to reimburse defendant for deposition
costs by the date I had ordered, 2) failed to deliver a
complete set of deposition transcripts timely, 3) failed to
produce a complete expert report from Dr. Tinari, plaintiff's
economist, by the January 10, 2003 deadline or to produce
Tinari for deposition on the scheduled date, and 4) failed to
provide updated information concerning plaintiff's medical
providers. I subsequently ordered Mr. Mitchell to pay double
the deposition reimbursement expenses because he failed
to remit payment timely to defendant as required by my
December 20th ruling. Tr. of Mar. 14, 2003, Docket Entry 67,
at 20.
9. Upon plaintiff's appeal of my discovery rulings, Judge
Trager granted plaintiff additional time, but plaintiff again
failed to make disclosures required by the Court.
On February 28, 2003, plaintiff filed objections to my
December 20, 2002 discovery orders pursuant to Federal
Rule of Civil Procedure 72. Docket Entry 56. United States
District Judge David G. Trager heard argument on plaintiff's
objections and concluded that my rulings were “certainly
within [my] discretion” and “clearly ... proper.” Tr. of Apr. 11,
2003, Docket Entry 68, at 3, 10. Although plaintiff contended
that the events of September 11, 2001 were a significant factor
in his missed deadlines and delays, Docket Entry 56, the
record reflects that discovery was extended in the months
following September 11th, granting the parties at first an
additional five months to April 19, 2002, and ultimately until
December 20, 2002. Docket Entries 32, 33, 48. Finally, as
Judge Trager noted during oral argument on plaintiff's motion,
plaintiff failed to comply with court orders on four occasions
prior to September 11, 2001. Tr. of Apr. 11, 2003, Docket
Entry 68, at 6.
*5 Nevertheless, Judge Trager granted plaintiff until June
17, 2003 to provide defendant with certain additional
documents and information concerning her economic expert,
Tinari. Id. at 32. Judge Trager also affirmed my March 14th
order doubling the deposition costs, imposed as a sanction,
with the caveat that Mr. Mitchell did not have to pay the
additional doubled amount if he fully responded to all of
the outstanding document demands by June 17th. Id. at 35.
Lastly, Judge Trager warned he was “not going to let this thing
drag out much longer.... If [Mr. Mitchell] hasn't [produced the
requested documents] by June 17th, you can assume that he
will walk away.... [To Mr. Mitchell:] [t]his is your last shot.”
Id. at 30, 32.
Judge Trager held another conference with counsel on June
17, 2003. At that time, defendant reported to the Court that
Mr. Mitchell had failed to provide all of the outstanding
discovery required by the Court. On May 5, 2003, plaintiff
did produce some additional discovery materials. Pl.'s Letter
dated May 5, 2003, Docket Entry 69. However, as defendant
pointed out, Tinari's expert report failed to provide full case
names and docket numbers when listing the prior cases in
which Tinari had testified. Tr. of June 17, 2003, Docket
Entry 78, at 11-15. Although Mr. Mitchell argued that he
should not be required to provide the information because
Tinari did not have it, Judge Trager ordered Mr. Mitchell
to provide the full names of the clients on whose behalf
Tinari testified. Id. at 14-15. Lastly, Judge Trager ordered Mr.
Mitchell to provide all outstanding discovery and denied Mr.
Mitchell's application for additional discovery until plaintiff's
own discovery obligations were fulfilled. Id. at 23.
10. Plaintiff failed to move the case forward from June,
2003 to February, 2005.
Following the June, 2003 conference, this case failed to
progress any further. No activity is reflected in the Court's
records until March 11, 2004, when Mr. Mitchell wrote to
Judge Trager requesting that he be permitted to proceed with
discovery. Docket Entry 74. In response, Ms. Carey asserted
that she still had not received all outstanding discovery,
including in particular the case names for the Tinari report
and certain tax returns that Judge Trager ordered plaintiff
to produce at the April and June conferences the prior year.
Docket Entry 75. At this juncture, plaintiff's counsel asked to
be relieved of his obligation to provide the case names for
the Tinari report, arguing that doing so was too burdensome.
Docket Entry 76. Additionally, Mr. Mitchell requested that
he be allowed to present at trial the testimony of Correa and
Watkins, even though he had long ago failed to comply with
court-ordered dates for their depositions which were set on
pain of preclusion. Id. Indeed, Mr. Mitchell had represented
he would not seek to call Correa as a trial witness when he
cancelled Correa's deposition the day before it was scheduled
to proceed. Id. Plaintiff also sought leave to present the
testimony of unnamed “other witnesses” who were never
previously identified in this case but apparently were deposed
in another discrimination case against Con Ed brought by a
plaintiff named Perez. Id.
*6 Even after plaintiff's informal letters to Judge Trager
went unanswered by the Court, plaintiff failed to make any
type of formal motion for relief. On November 19, 2004, I
scheduled a conference for the following month to determine
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the status of the case. Docket Entry 79. In a letter to the
Court dated December 13, 2004, Ms. Carey indicated that she
had not heard from plaintiff since the June, 2003 conference,
almost eighteen months prior, except for the two letters to
the Court received eight months earlier. During the status
conference held on December 20, 2004, counsel for defendant
asserted that she never received signed authorizations for tax
returns from plaintiff despite having sent authorization forms
over a year ago. Tr. of Dec. 20, 2004, Docket Entry 81, at 4.
Mr. Mitchell responded that plaintiff sent the authorizations
to defendant and he did not hear any further from defendant
concerning the tax documents. Id. at 5. Ms. Carey also stated
that she never received the additional information concerning
Dr. Tinari's prior cases. Id. Mr. Mitchell acknowledged that he
had not provided the additional information ordered by Judge
Trager, but reaffirmed his statement that Dr. Tinari did not
have the information. Id. at 5-6. Based on plaintiff's repeated
failures to comply with court orders to move this case forward
and the burdens and expense imposed on defendant as a result,
I granted defendant leave to file a motion to dismiss for failure
to prosecute or, in the alternative, a motion to preclude certain
discovery and evidence at trial. Id. at 6-7. As of February 28,
2005, the date defendant filed its motion to dismiss, defendant
still had not received plaintiff's federal tax documents or the
completed expert report. 3
DISCUSSION
A. Dismissal
The Federal Rules of Civil Procedure provide for dismissal
of an action where a party fails to obey a pretrial scheduling
order or fails to obey an order to provide discovery. See
FED.R.CIV.P. 16(f); FED.R.CIV.P. 37(b)(2); FED.R.CIV.P.
41(b). Similarly, under Federal Rule 41(b), a defendant may
move to dismiss an action or claim “[f]or failure of the
plaintiff to prosecute or to comply with these rules or any
order of court.” Failure to prosecute “can evidence itself either
in an action lying dormant with no significant activity to move
it or in a pattern of dilatory tactics,” which may consist of
“repeated requests for continuances or persistent late filings
of court ordered papers.” Lyell Theatre Corp. v. Loews Corp.,
682 F.2d 37, 42 (2d Cir.1982).
Dismissal is an extreme remedy and warranted only under the
most egregious circumstances. See Minnette v. Time Warner,
997 F.2d 1023, 1027 (2d Cir.1993). In severe cases, however,
dismissal may be appropriate not only to penalize an attorney
who conducts himself in a dilatory manner but also to deter
other attorneys from similar conduct. Nat'l Hockey League v.
Metro. Hockey Club, Inc., 427 U .S. 639, 643, 96 S.Ct. 2778,
2781 (1976). A dismissal triggered by an attorney's actions
or inaction imposes a severe consequence on a plaintiff.
Nevertheless, the Supreme Court has recognized dismissal
as a just sanction for counsel's irresponsible conduct. Link
v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386,
1390 (1962) (“Petitioner voluntarily chose this attorney as
his representative in the action, and he cannot now avoid the
consequences of the acts or omissions of this freely selected
agent.”).
*7 The Second Circuit has set forth five factors to be
considered when determining whether the circumstances of a
particular case warrant the severe sanction of dismissal under
Rule 41(b):
(1) the duration of plaintiff's failures;
(2) whether plaintiff had received
notice that further delays would result
in dismissal; (3) whether defendant
is likely to be prejudiced by further
delay; (4) whether the district judge
has carefully balanced the need to
alleviate court calendar congestion and
a party's right to due process; and
(5) whether the court has assessed the
efficacy of lesser sanctions.
Peart v. City of New York, 992 F.2d 458, 461 (2d Cir.1993),
quoting Romandette v. Weetabix Co., Inc., 807 F.2d 309,
312 (2d Cir.1986). No one factor is dispositive, and the
appropriateness of dismissal must be viewed in light of the
record as a whole. 4 Drake v. Norden Sys., Inc., 375 F.3d 248,
254 (2d Cir.2004).
1. Duration ofPlaintiff's Failures
This factor consists of two parts: a) whether the delay was
caused by plaintiff and b) whether the delay was of significant
duration. See Martens v. Thomann, 273 F.3d 159, 180 (2d
Cir.2001).
The record amply demonstrates that plaintiff was the cause
of extensive delays in this case. The discovery deadline was
extended several times to give plaintiff additional time to
complete discovery. Plaintiff requested the first discovery
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extension on June 15, 2000. Docket Entry 24. Three months
after the November, 2000 deadline passed, the discovery
deadline was adjourned without date after defendant notified
me that plaintiff had failed to answer interrogatories served
nine months ealier. 5 Def.'s Letter dated Feb. 6, 2001. The
discovery extension on June 1, 2001 was granted to provide
plaintiff additional time to depose witnesses. Docket Entry
30. Mr. Mitchell requested the seventh discovery extension
on April 22, 2002, three days after the discovery cut-off date.
Docket Entry 32.
Plaintiff was repeatedly granted substantial discovery
extensions but to no avail in actually completing discovery
in an efficient and expeditious manner. From February of
2001 to April of 2003, depositions repeatedly failed to go
forward due to Mr. Mitchell's scheduling conflicts and other
failures. The record reflects the following delays, among
others, caused by Mr. Mitchell:
• Def.'s Letter dated Feb. 6, 2001 (noting that Mr. Mitchell's
failure to provide discovery was delaying the taking of
plaintiff's deposition)
• Pl.'s Letter dated Apr. 22, 2002, Docket Entry 34 (noting
that Mr. Mitchell failed to appear for a deposition),
• Def.'s Letter dated May 29, 2002 (noting that Mr. Mitchell
cancelled two scheduled deposition days only two days
prior to the first scheduled date and failed to commit to
dates for remaining depositions)
• Docket Entry 36 (scheduling by the Court of deposition
dates),
• Docket Entry 38 (same),
• Pl.'s Letter dated July 11, 2002, Docket Entry 39
(requesting to change the deposition schedule three days
before the first scheduled deposition because he had
transposed deposition dates and witnesses),
*8 • Pl.'s Letter dated July 17, 2002 (withdrawing witness
the day before the scheduled deposition)
• Pl.'s Letter dated Aug. 6, 2002 (cancelling a deposition
due to Mr. Mitchell's unavailability and notifying the
Court and defendant of three new witnesses to be
deposed),
• Def.'s Letter dated Sept. 10, 2002 (informing the Court
that defendant had not been able to speak to Mr. Mitchell
to schedule depositions)
• Def.'s Letter Sept. 20, 2002 (same),
• Docket Entry 43 (scheduling by the Court of deposition
dates),
• Def.'s Letter dated Dec. 2, 2002 (reporting that Mr.
Mitchell failed to produce a witness for deposition and
failed to take a deposition),
• Tr. of Dec. 20, 2002, Docket Entry 49, at 16 (noting that
the Austin deposition had been rescheduled numerous
times and that plaintiff's expert report was past due) and
• Docket Entry 55 (requesting additional time to produce
expert for deposition when the deadline for the
deposition was the following day and the scheduled date
for the deposition was three days earlier).
Although many of plaintiff's requests were made at the
eleventh hour or even after the deadline had passed, I granted
nearly every one of Mr. Mitchell's applications for additional
time. See, e.g., Docket Entries 24, 30, 34, 35, 40, 41, 48,
55. But see Docket Entry 45 (denying plaintiff's application
to adjourn the court-ordered deposition scheduled for the
following day) and Tr. of Dec. 20, 2002, Docket Entry 49, at
27 (denying plaintiff's application to take additional discovery
and closing discovery). In sum, the record clearly reflects that
Mr. Mitchell was the cause of significant delay.
In contrast, defendant contributed minimally to the delays. It
is true that some of the discovery extensions were requested
or at least consented to by defendant. See Def.'s Letter
dated Nov. 16, 2000; Docket Entries 31, 32, 42. I note
that these extensions were early in the case and were
minor and isolated incidents. At least one of defendant's
requests for an extension was necessitated by plaintiff's
failure to comply with discovery demands and orders. See,
e.g., Def.'s Letter dated Sept. 10, 2002, Docket Entry 42.
Mr. Mitchell, of course, evidenced a serious “pattern of
dilatory tactics” beginning around April of 2002. See, e.g.,
Docket Entries 34-43, 45, 46, 48, 55, 59. As discussed
throughout, plaintiff, not defendant, is substantially at fault
for the appreciable delays in this case. See Peart, 992 F.2d
at 461 (affirming dismissal after finding plaintiff's counsel's
behavior “particularly egregious” for failing to comply with
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two court orders, even though “both parties in fact were
responsible for many delays”).
Plaintiff's argument that defendant Con Ed contributed to the
delay in this case and her reliance on Jackson v. City of New
York, 22 F.3d 71 (2d Cir.1994), is misguided. In Jackson,
the Court found “no instance on the record in which the
delays were caused solely by the actions of [plaintiff] or her
attorney.” 22 F .3d at 75. Unlike Jackson, there are numerous
instances here where delays were caused solely by plaintiff.
In arguing that defendant was also responsible for delays,
plaintiff cites only to a single example involving a conference
held on April 27, 2001. Plaintiff's Memorandum of Law
Opposing Defendant's Motion to Dismiss (“Pl.'s Mem.”) p. 7.
At this conference, plaintiff contended that defendant failed
to provide responses to discovery demands and refused to
produce certain witnesses for deposition the following week.
Ms. Carey explained, however, that she failed to provide
the requested discovery only because she never received
plaintiff's discovery demands and deposition notices. Def.'s
Letter dated Apr. 27, 2001. See also Tr. of Apr. 11, 2003,
Docket Entry 68, at 7-9. Moreover, the April 27, 2001
conference was instigated by Mr. Mitchell's untimely request
to adjourn plaintiff's deposition, which was in plain violation
of my February 21st order that plaintiff's deposition could not
be rescheduled absent stipulation by the parties and notice
to the court at least two weeks prior to the deposition. See
Pl.'s First Letter of Apr. 27, 2001. Thus, plaintiff's argument
that defendant is also responsible for the delays in this case is
completely lacking in merit.
*9 The delays caused by plaintiff were also significant in
length. The original discovery deadline was June 30, 2000.
Two and a half years later, after countless extensions, I
ordered discovery finally closed December 20, 2002. At the
time the instant motion was filed in February of 2005, this
case was six years old. Yet Mr. Mitchell argued then, as he
does now, that he still needs additional discovery. See Pl.'s
Mem. pp. 8-9; Pl's Letter dated May 11, 2006, Docket Entry
90. If Mr. Mitchell had conducted discovery with any degree
of diligence, he would undoubtedly have realized the need for
additional discovery much earlier in the case and all discovery
could have been completed long ago. I made this point to
plaintiff's counsel years ago. See Tr. of Dec. 20, 2002 at 28.
Yet even now, this case is not fully discovered.
Moreover, Mr. Mitchell's repeated failures to provide a
complete expert report from Dr. Tinari and the tax returns
sought by defendant have led to a substantial delay and
there is no indication that plaintiff will ever produce the
discovery in issue. Mr. Mitchell was first put on notice in
February of 2003 that required information from Tinari and
various documents concerning his expert report had not been
produced. Def.'s Letter dated Feb. 24, 2003. Judge Trager
twice ordered plaintiff to perfect Tinari's expert report and
provide defendant with her tax returns. Tr. of Apr. 11, 2003
at 30, 32; Tr. of June 17, 2003 at 14-15. As of today's date,
plaintiff has still not fully complied with these discovery
obligations. Indeed, in a letter dated January 19, 2005, Mr.
Mitchell indicated that it would take several months to receive
copies of Ms. Barney's tax returns but that he would forward
them to Ms. Carey as soon as he received them. As of May
15, 2006, Ms. Carey still has not received the official IRS tax
returns. Def.'s Letter dated May 15, 2006, Docket Entry 91,
at 1.
Plaintiff's dilatory conduct over several years warrants
dismissal. See Lyell Theatre Corp., 682 F.2d at 42-43
(affirming dismissal of case involving two years of inactivity
and seven years of dilatory conduct); Drake, 375 F.3d at 255
(finding that delay of seventeen months was “significant” but
dismissal not warranted for other reasons); Europacific Asset
Mgmt. Corp. v. Tradescape Corp., 2005 WL 3182528, at *6
(S.D.N.Y. Nov. 29, 2005) (noting that courts have frequently
found delays of less than two years “unreasonable”). In
particular, Mr. Mitchell's nearly complete lack of activity
during the eighteen months following the conference before
Judge Trager in June, 2003-a period of inactivity that might
still be ongoing had this Court not convened a conference sua
sponte-favors dismissal.
2. Notice
Plaintiff had ample notice that further delay and failure to
comply with orders could result in dismissal of the case. At a
conference on April 25, 2002, I warned that failure to produce
witnesses for depositions could result in a recommendation of
dismissal. The depositions did not go forward as scheduled,
yet I granted Mr. Mitchell additional time to complete
discovery. At the April 25, 2003 conference, Judge Trager
indicated that dismissal for failure to prosecute would be
appropriate if Mr. Mitchell did not provide the requested
documents by June 17, 2003. See Tr. of Apr. 11, 2003,
Docket Entry 68, at 32 (“If [Mr. Mitchell] hasn't [produced
the requested documents] by June 17th, you [defendant's
attorney] can assume that he [plaintiff's attorney] will walk
away.... This is your last shot.”). These warnings from the
Court were sufficient to put plaintiff on notice dismissal
for failure to prosecute would follow if Mr. Mitchell failed
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to comply with discovery demands and orders and caused
further delay. 6 See Link, 370 U.S. at 632-33, 82 S.Ct.
at 1389-90 (noting that a Rule 41(b) dismissal does not
require prior notice or a hearing); Jackson, 22 F.3d at 75-76
(suggesting that one warning may be sufficient to provide
notice, depending upon the circumstances of the case).
*10 Moreover, defendant also put Mr. Mitchell on notice of
the risk of dismissal for failure to prosecute. Defendant first
requested that the case be dismissed for plaintiff's failure to
comply with discovery orders in June of 2002. Def.'s Letter
dated June 10, 2002, Docket Entry 37. In February of 2003,
defendant again requested that this case be dismissed for
discovery violations. Def .'s Letter dated Feb. 24, 2003. And
clearly, Mr. Mitchell was put on notice at the December 20,
2004 conference where I granted defendant's leave to file the
instant motion. Finally, he was put on notice when defendant
filed the instant motion. See Stoenescu v. Jablonsky, 162
F.R.D. 268, 271 (S.D.N.Y.1995) (filing of motion to dismiss
put plaintiff on notice). Yet he has not, even to this date,
complied with all outstanding discovery orders.
In short, Mr. Mitchell has been on notice for at least three
years that this case was at risk of dismissal. If he had provided
the documents and information as ordered by the Court at any
time over the course of the last three years, dismissal might
indeed be too harsh a sanction. Mr. Mitchell, however, has
failed to take the necessary steps to avoid dismissal, despite
ample opportunity to do so. Cf. Drake, 375 F.3d at 255-56
(finding inter alia that the district court abused its discretion
in dismissing the case because plaintiff had no opportunity
to cure the deficiency prior to dismissal). In sum, plaintiff
has repeatedly refused to comply with court orders even after
notice that this case might be dismissed. This factor weighs
in favor of dismissal.
3. Prejudice
“Prejudice may be presumed as a matter of law ...
[depending] on the degree to which the delay was lengthy
and inexcusable.” Drake, 375 F.3d at 256. See also Lyell
Theatre Corp., 682 F.2d at 43 (“[I]n cases where delay is more
moderate or excusable, the need to show actual prejudice
is proportionally greater.”). Plaintiff's “pattern of dilatory
tactics” in this case has led to years of delay and a case that
is still not fully discovered.
The delay was also inexcusable. I find unacceptable Mr.
Mitchell's routine attempts to excuse his non-compliance by
claiming he has made scheduling errors and cannot meet
deadlines because he is a solo practitioner. See, e.g., Docket
Entries 39, 40; Tr. of Dec. 20, 2002 at 11; Tr. of Apr. 11,
2003 at 3. And there is simply no excuse for his failure to
communicate with opposing counsel to schedule depositions.
See Def.'s Letters dated May 29, 2002 and Sept. 20, 2002;
Docket Entries 37, 42. Lastly, plaintiff's only argument for
the delay in not providing the expert discovery is that he
should be relieved of his obligation to do so because it is a
burdensome request. Pl.'s Mem. p. 2. Judge Trager implicitly
rejected this argument, as do I. See discussion infra pp. 23-25.
In sum, the lengthy and inexcusable delay in this case leads
to a presumption of prejudice.
*11 Moreover, the Second Circuit has noted that defendants
“have an interest in prompt resolution of suits in which
they have been named, particularly where ... racial bias
is alleged.” Copeland v. Rosen, 194 F.R.D. 127, 132
(S.D.N.Y.2000) (“Copeland I”), remanded by 25 Fed. Appx.
17 (2d Cir.2001), after remand Copeland v. Rosen, 208 F.R.D.
507 (S.D.N.Y.2002) (“Copeland II ”). As in Copeland, Con
Ed has a significant interest here in prompt resolution of this
case, in which racial bias and other forms of discrimination
have been alleged.
Furthermore, defendant has been prejudiced in fact.
Defendant notes that two of the Con Ed employees involved
in this litigation have since retired and now reside out of
state. Def.'s Mem. p. 7. Moreover, the events underlying
this litigation occurred six to ten years ago and undoubtedly
memories have faded and documents have been lost. Id.
See Shannon v. Gen. Elec. Co., 186 F.3d 186, 194-95 (2d
Cir.1999) (finding a substantial likelihood that evidence
had become unavailable and witnesses' recollections had
diminished because the events occurred more than a decade
before dismissal); White v. Mitchell, 2005 WL 775899, at
*3 (E.D.N.Y. Apr. 6, 2005) (finding prejudice where the
events occurred over five years prior to the dismissal). In
addition, plaintiff's delays and failures to abide by court
orders have caused defendant to incur substantial legal fees,
particularly as a result of preparing for depositions that
failed to proceed as scheduled, making repeated applications
to the court, and attending numerous court conferences.
See LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 210
(2d Cir.2001) (recognizing that prejudice includes increased
litigation costs); Peart, 992 F.2d at 462 (finding prejudice
where, inter alia, a party expends time and money preparing
a case). Indeed, a careful review of the docket sheet in this
action reveals that, as a result of plaintiff's conduct, defendant
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was required to submit at least seventeen discovery letters 7
and to attend at least the same number of court conferences. 8
In contrast, a typical case of this magnitude might reasonably
be expected to require two or three discovery letters and
three or four court conferences. Moreover, the activity on the
docket sheet does not, of course, reflect the many phone calls
and letters Ms. Carey exchanged with Mr. Mitchell attempting
to move discovery forward.
Defendant has also been prejudiced in preparing to defend
against plaintiff's economic expert. Mr. Mitchell first notified
defendant that he had retained Dr. Tinari on September 18,
2002-three and a half years into this litigation and seven
months after the original deadline for producing expert
reports had expired. Def.'s Letter dated Sept. 20, 2002, at 2;
Docket Entry 33. I then set a new deadline of November 8,
2002 for Dr. Tinari's report. See Docket Entry 43. When even
that deadline was missed, I extended the time for Dr. Tinari's
report to January 10, 2003, and recommended that Tinari's
testimony be precluded if the report were not provided to
defendant by that date. Docket Entry 48.
*12 Plaintiff apparently did provide a report from Tinari
on or about January 10, 2003. See Affirmation of Barbara
Jane Carey (“Carey Aff.”), Docket Entry 71, ¶ 2 and Ex.
1. Defendant has contended since the report was initially
produced that it was deficient in several respects. One of the
deficiencies noted by defendant was that the report did not
include any information about other cases in which Tinari had
testified as an expert witness. Such disclosure is, of course,
required by Federal Rule of Civil Procedure 26(a)(2)(B).
Apparently in response to defendant's complaints, plaintiff
submitted additional materials, including some information
about Tinari's prior experience as an expert witness, on
or about March 10, 2003. Carey Aff. Ex. 3. Even this
information-in addition to being provided 60 days after the
final date for production of the Tinari report on pain of
preclusion-was deficient, in that it listed only the date of the
report, the name and telephone number of the attorney for
whom it was prepared, the name of the judge and the court
where the case was heard, and plaintiff's gender and surname.
Id. Courts construing Rule 26(a)(2)(B) have held that
[t]he identification of ‘cases' at a
minimum should include the courts
or administrative agencies, the names
of the parties, the case number,
and whether the testimony was by
deposition or at trial. Such information
should be sufficient to allow a party
to review the proceedings to determine
whether relevant testimony was given.
With this information, a party should
be able to determine the type of claim
presented and locate any recorded
testimony.
Cartier, Inc. v. Four Star Jewelry Creations, Inc., 2003 WL
22227959, *2 (S.D.N.Y. Sept. 26, 2003), citing Nguyen v.
IBP, Inc., 162 F.R.D. 675, 682 (D.Kan.1995). The information
provided by plaintiff did not include case numbers or the
names of the parties (other than the surname of one party).
Although plaintiff has argued that Tinari does not have
the necessary information and that it would be unduly
burdensome for plaintiff to obtain it, it is the duty of an expert,
particularly one who routinely testifies, to keep records that
fully comply with Rule 26, and it is counsel's duty to ensure
that the expert he retains complies with the Federal Rules. See
Doblar v. Unverferth Mfg. Co., Inc., 185 F.R.D. 258, 261-62
(D.S.D.1999); Elgas v. Colorado Belle Corp., 179 F.R.D. 296,
299-300 (D.Nev.1998). Moreover, the information plaintiff
did produce included the name of each lawyer who had
previously retained Tinari as an expert, and there is no reason
why Mr. Mitchell could not have contacted those attorneys to
obtain the required information.
Defendant emphasized the deficiencies in Tinari's report
during oral argument before Judge Trager on April 11, 2003
in connection with plaintiff's objections to my discovery
orders. See Tr. of Apr. 11, 2003 at 16-18. Judge Trager
ordered plaintiff to provide all of the information requested
by defendant, including the list of cases in which Tinari
previously testified as an expert, within 30 days, and stated
that plaintiff would have to “walk away” if the documents had
not been produced by the time of the next conference, which
Judge Trager set for June 17, 2003. Id. at 18, 32. On June
17, 2003, upon learning that plaintiff had not provided the
additional information about Tinari's prior testimony, Judge
Trager ordered plaintiff to provide, at a minimum, the full
names of the parties on whose behalf Tinari had testified. Tr.
of June 17, 2003 at 14-15. Plaintiff has yet to provide this
information and defendant persuasively argues that it has been
prejudiced as a result. Defendant's counsel affirms that she
“attempted to locate the cases in which [Dr. Tinari] said he
had testified, using Westlaw[, but her] search was both unduly
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Barney v. Consolidated Edison Co. of New York, Not Reported in F.Supp.2d (2006)
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lengthy and often fruitless.” Affirmation of Barbara Carey in
Support of Defendant's Reply, dated Mar. 30, 2005, ¶ 12.
*13 Defendant has also been prejudiced by plaintiff's failure
to obtain and provide all of her tax returns. 9 Plaintiff seeks
to hold defendant liable in damages for her termination.
Defendant argues, among other things, that plaintiff was
collecting disability benefits during the period for which
she seeks to recover lost wages. Accordingly, plaintiff's
income tax returns-which should reflect any income earned or
disability benefits received after being terminated by Con Ed-
are highly relevant to plaintiff's claim for damages. Although
plaintiff finally provided tax “transcripts” in January, 2005
containing some income tax information, these documents do
not appear to contain all of the details, such as sources of
income, one would expect to find on an official tax return.
Additionally these documents are not signed by plaintiff and
are therefore less useful than tax returns would be both as
substantive evidence and for purposes of impeachment.
In sum, plaintiff has failed to negate the presumption of
prejudice, and the record demonstrates that defendant has
suffered substantial actual prejudice. This factor weighs
heavily in favor of dismissal.
4. Balancing Court Congestion and Plaintiff's Due
Process Right
Plaintiff's right to an opportunity to be heard is significant
and weighs against dismissal. “There must be compelling
evidence of an extreme effect on court congestion before a
litigant's right to be heard is subrogated to the convenience
of the court.” Lucas v. Miles, 84 F.3d 532, 535-36 (2d
Cir.1996) (dismissal not warranted on pro se case pending
for twenty-two months), cited in LeSane, 239 F.3d at 210.
As noted above, Judge Trager and I have been called upon
to resolve a remarkable number of disputes, and to grant
extensions countless times, in this relatively straightforward
case. Having said this, though, this factor weighs against
dismissal because an adjudication on the merits would be
preferable.
5. Consideration of Lesser Sanctions
I have considered but decline to recommend imposing
lesser sanctions in this case for two reasons. First, plaintiff
has repeatedly failed to comply despite warnings that
lesser sanctions would be imposed and even despite the
imposition of lesser sanctions. Second, no sanction short of
dismissal would sufficiently redress the prejudice suffered by
defendant.
Plaintiff's failures to comply with specific court orders, and
in particular those orders that warned of sanctions for failure
to comply, may be summarized as follows:
• During a conference held on April 25, 2002, I set court-
ordered dates for depositions and warned that failure
to take the deposition would constitute a waiver of
that discovery and failure to produce a witness would
result in sanctions, including dismissal or default. The
depositions did not go forward as ordered. At this
conference, I also precluded plaintiff from presenting
any medical expert testimony at trial because of her
failure to produce reports from her medical experts.
*14 • On June 21, 2002, I set court-ordered dates for
the depositions of three witnesses-Watkins, Correa, and
Austin-and ordered that plaintiff would be precluded
from calling those witnesses at trial if he failed to
produce them on the scheduled dates. These depositions
did not go forward as ordered. Nevertheless, in April of
2004, Mr. Mitchell requested that he be allowed to call
as trial witnesses Watkins and Correa, who were never
deposed in this litigation. Docket Entry 76.
• On December 20, 2002, I ordered plaintiff to produce
his economic expert report by January 10, 2003 on pain
of preclusion. Plaintiff failed to provide the complete
expert report on time.
• On April 11, 2003, Judge Trager ordered plaintiff to
provide certain discovery by June 17, 2003 or “walk
away.” Mr. Mitchell failed to provide all of the ordered
discovery.
• On June 17, 2003, Judge Trager ordered plaintiff to
provide the first names of the parties on whose behalf her
economic expert previously testified. Plaintiff has failed
to provide defendant with any additional information
concerning Dr. Tinari's prior testimony.
As summarized above, the Court has warned of and has in
fact imposed lesser sanctions, but with no effect upon Mr.
Mitchell's willingness to follow this Court's discovery orders.
To the contrary, Mr. Mitchell's attitude towards compliance
appears unchanged. Moreover, a cursory review of cases in
the Eastern District of New York suggests that Mr. Mitchell
has repeatedly received warnings and lesser sanctions over
the years with little effect on his responsiveness to directions
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Barney v. Consolidated Edison Co. of New York, Not Reported in F.Supp.2d (2006)
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from the court or his diligence in prosecuting cases on
behalf of his clients. 10 Thus, any sanction short of dismissal
would not sufficiently penalize Mr. Mitchell for his serious
“pattern of dilatory tactics” in this case and would not
likely prompt compliance with the Court's orders. See, e.g.,
Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 666 (2d
Cir.1980) (affirming dismissal “given [plaintiff's] complete
intransigence in the face of a clear court order”); Copeland II,
208 F.R.D. at 513 (dismissing case after finding “inexcusable
delay and indifference” and noting that plaintiff's counsel
“continually failed to comply with [court] orders”).
In considering lesser sanctions, I am mindful of the Second
Circuit's caution to consider whether the party or counsel
are at fault and to impose sanctions accordingly. Dodson v.
Runyon, 86 F.3d 37, 40 (2d Cir.1996).
In deciding on the suitability of lesser
sanctions and whether the sanctions
should be aimed primarily against
the party or the attorney, it can be
important for the district court to
assess the relative roles of attorney
and client in causing the delay, as
well as whether a tactical benefit was
sought by the delay.... [T]he more the
delay was occasioned by the lawyer's
disregard of his obligation toward his
client, the more this factor argues in
favor of a less drastic sanction imposed
directly on the lawyer.
*15 Id. at 40. In this case, it appears that Mr. Mitchell,
and not his client, is the sole cause of the delay. The Second
Circuit, however, did not rule out dismissal even based upon
an attorney's actions where those actions cause a defendant
significant prejudice.
[A]t least absent prejudice, dismissal
for failure to prosecute is inappropriate
where the fault clearly lay in the
lawyer's failure to attend to his
client's business, and the court failed
to consider alternative sanctions....
[W]here opposing parties are found to
have been meaningfully prejudiced by
a plaintiff's delay, this factor speaks
strongly in favor of dismissal, and may
well override the hardship to plaintiff.
Id. at 40-41 (emphasis added).
Dismissal is warranted in this case because defendant has
suffered significant actual prejudice. See discussion supra
pp. 21-26. Cf. Tubner v. West, 1996 WL 1057149, at *7
(E.D.N.Y. Dec. 17, 1996) (finding that plaintiff's lawyer
disregarded her professional responsibilities and caused the
delay but denying dismissal because case was less than one
year old and defendants had not suffered prejudice). Any
other sanction will not adequately redress this prejudice.
As discussed above, there is “no merit to the contention
that dismissal of petitioner's claim because of his counsel's
unexcused conduct imposes an unjust penalty on the client.”
Link, 370 U.S. at 633, 82 S.Ct. at 1390. Nevertheless, Mr.
Mitchell is hereby ordered to serve a copy of this Report
and Recommendation on plaintiff and to provide proof of
service to the Court. In this way, plaintiff herself is put on
notice that her case is about to be dismissed and she will
have an opportunity to be heard, if she chooses, before Judge
Trager decides whether to adopt the recommendations in this
report. 11 See Dodson, 86 F.3d at 40, fn.4.
6. Record as a Whole
In sum, an analysis of the five factors identified in Peart
supports dismissal for failure to prosecute. The record as a
whole amply demonstrates Mr. Mitchell's repeated failures to
comply with court orders and the significant delays which
occurred as a result. See Lyell, 682 F.2d at 43 (affirming
dismissal in case that involved seven years of “commitments
not honored, delinquent inactivity, adjournments and delay,”
including two years of inactivity, and noting that “[w]e have
affirmed dismissals in cases far less egregious than this”);
Copeland I, 194 F.R.D. at 127 (finding that “dismissal [wa]s
warranted by counsel's chronic delays and her disregard for
the orders of the Court” over the course of four years);
Cognotec Servs. Ltd. v. Morgan Guar. Trust, Co., 1999 WL
627411, at *2 (S.D.N.Y. Aug. 18, 1999) (dismissing case
involving five and one-half years of failure to adequately
prosecute, including nineteen months of inactivity); Johnson
v. M. Melnick & Co., Inc., 1996 WL 239994, at *9 (S.D.N.Y.
May 8, 1996) (dismissing case after plaintiff engaged in
“a pattern of dilatory tactics” for four years, including the
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violation of multiple court orders, despite “ample opportunity
to remedy his conduct”). Here the record reflects six years
of dilatory conduct by plaintiff despite the repeated threat
of lesser sanctions and even the threat of dismissal. Mr.
Mitchell requested and was granted dozens of extensions
and adjournments to no avail in completing his discovery,
failed to produce witnesses for depositions, failed to appear
to take depositions, cancelled depositions at the last minute,
failed to communicate with defendant's counsel, and failed
to provide an adequate expert report in a timely fashion.
Mr. Mitchell's habitual defiance is astounding considering the
repeated extensions of time he was given to comply with this
Court's orders.
*16 Based on the record as a whole, which clearly
demonstrates a serious pattern of discovery violations by
plaintiff causing significant delay, I respectfully recommend
dismissal for failure to prosecute pursuant to Federal Rule
41(b).
Dismissal would also be an appropriate sanction under Rule
37(b)(2)(C). See Altschuler v. Samsonite Corp., 109 F.R.D.
353, 356 (E.D.N.Y.1986) (recommending a default judgment
pursuant to Rule 37 “because of [defendant's] consistent
failure to cooperate in this litigation in good faith and to obey
a discovery order of which it had proper notice”). Indeed,
courts consider the same factors applicable to Rule 41(b)
when considering dismissal pursuant to Rule 37. See Banjo
v. United States, 1996 WL 426364, at * 5 (S.D.N.Y. July 30,
1996).
B. Preclusion
If my recommendation that this case be dismissed is not
adopted, I respectfully recommend in the alternative that
plaintiff be precluded from calling Dr. Tinari as an expert
witness at trial, be precluded from offering expert testimony
from any medical doctor or other expert witness, and be
precluded from calling Correa, Watkins, or any other fact
witness she did not identify and produce for deposition prior
to the final discovery conference I held on December 20,
2002. 12
In addition, I respectfully recommend 1) that defendant
be allowed to re-open plaintiff's deposition for the limited
purpose of inquiring about plaintiff's Social Security file, 2)
that discovery be otherwise closed 3) that Mr. Mitchell be
directed to pay forthwith double the reimbursement amount
he untimely paid to defendant, and 4) that defendant be
awarded the attorney's fees and costs it incurred making this
motion.
CONCLUSION
For all these reasons, I respectfully recommend that
defendant's motion to dismiss be granted. In the alternative, I
recommend the lesser sanctions set forth in the two preceding
paragraphs.
Any objections to the recommendations made in this Report
must be filed with the Clerk of the Court and the Chambers of
the Honorable David G. Trager within ten days of receiving
this Report and Recommendation and, in any event, on or
before August 7, 2006. In order to give Ms. Barney an
opportunity to be heard before her case is dismissed, I direct
that Mr. Mitchell provide a copy of this Report to his client
and provide proof of service to this Court. Failure to file
timely objections may waive the right to appeal the District
Court's Order. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a),
6(e), 72; Small v. Secretary of Health & Human Servs., 892
F.2d 15, 16 (2d Cir.1989).
All Citations
Not Reported in F.Supp.2d, 2006 WL 4401019
Footnotes
1 Letters referenced by date without a Docket Entry number were submitted by counsel to chambers but never
filed with the Court. All are available in the Court's chambers file.
2 As discussed below, in April of 2004, plaintiff sent a letter to United States District Judge David G. Trager
seeking to offer Correa and Watkins “and other witnesses [who were deposed] in the Perez [v. Consolidated
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Barney v. Consolidated Edison Co. of New York, Not Reported in F.Supp.2d (2006)
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Edison Co. of New York] case” as witnesses at trial, stating that they were not able to be deposed during
the discovery period. Pl.'s Letter dated Apr. 2, 2004, Docket Entry 76. The Correa and Watkins depositions
were court-ordered at the June 21, 2002 conference on pain of preclusion. Mr. Mitchell cancelled both of
these depositions at the last minute. Moreover, Mr. Mitchell was on notice of Correa as a potential witness
even before he began representing Ms. Barney. Indeed, Mr. Mitchell represented Correa in her own litigation
against Con Ed. Correa v. Consolidated Edison Co. of New York, 98-CV-4450 (JG) (E.D.N.Y.). If Judge
Trager does not adopt my recommendation to dismiss this case, I respectfully recommend that plaintiff be
precluded from calling Correa, Watkins, or any other Perez witnesses at trial.
3 By letter dated January 19, 2005, plaintiff provided defendant with tax “transcripts” and indicated that she
would forward copies of the actual submissions once she received them. According to the submissions
attached to the January 19th letter, Mr. Mitchell requested the transcripts December 28, 2004. I note that
Mr. Mitchell apparently did not make the request to the Internal Revenue Service until almost six years
into discovery, even though plaintiff's claim included economic damages and his economic damages expert
apparently reviewed plaintiff's tax returns. As of March of 2006, plaintiff still had not provided any additional
tax documents to defendant. Docket Entry 88. Although plaintiff did produce some additional tax documents
on March 29, 2006, defendant continues to assert that these documents are insufficient because they are
not copies of official IRS tax returns and many were not signed by Ms. Barney. Docket Entries 90, 91.
4 Moreover, a court may consider the merits of the action when determining whether dismissal is appropriate.
See Dosunmu v. U.S., 361 F.Supp.2d 93, 99-100 (E.D.N.Y.2005). Although I do not give it much weight, I
briefly note that defendant has raised a serious question as to whether plaintiff's claim for damages has merit.
Def.'s Mem. p. 5. Plaintiff was discharged from Con Ed on September 10, 1998. Defendant has apparently
developed evidence that Ms. Barney began receiving Social Security disability benefits based on a claim that
she was unable to work because of a disabling condition beginning September 10, 1998. See Tr. of Mar. 14,
2003, at 7-11. It seems unlikely that plaintiff could receive damages for lost pay and pension benefits in this
case, arguing that she could have continued working at Con Ed, and could at the same time receive Social
Security benefits by claiming that she could no longer work due to a disability during the same time period.
5 Absent a court order or stipulation to the contrary, interrogatory answers are due thirty days after the service
of the interrogatories. FED.R.CIV.P. 33(b)(3).
6 Mr. Mitchell is only too familiar with the sanctions of preclusion and dismissal under Federal Rules 37 and
41. See, e.g., Smalls v. Port Auth. of New York and New Jersey, 120 Fed. Appx. 396 (2d Cir.2005) (involving
same plaintiff's counsel and affirming dismissal for failure to prosecute); Waters v. New York Univ. Med. Ctr.,
04-CV-3174 (ERK) (E.D.N.Y. June 30, 2006) (dismissing action for failure to prosecute and to comply with
court orders after warning Mr. Mitchell twice that he risked dismissal); Moore v. Consolidated Edison Co. of
New York, CV-00-7384 (PAC) (March 8, 2006) (granting same plaintiff's counsel additional time to complete
interrogatory responses after outlining plaintiff's extensive delays and extension requests, sanctioning Mr.
Mitchell in the amount of $500 for the most recent delay, and warning plaintiff's counsel that future untimely
submissions may lead to dismissal); Butler v. Acosta, CV-01-4347 (CBA) (E.D.N.Y. July 16, 2003) (dismissing
case for failure to prosecute with same plaintiff's attorney); Carr v. Queens-Long Island Med. Group, P.C.,
2003 WL 169793 (S.D.N.Y. Jan. 24, 2003) (finding a “pattern of disregard for discovery obligations” and
sanctioning Mr. Mitchell the expenses incurred by defendants in their contempt motion); Evans v. Port Auth. of
New York and New Jersey, 201 F.R .D. 96 (S.D.N.Y.2001) (precluding same plaintiff's counsel from offering
any evidence from 75 persons belatedly identified).
7 Docket Entries 37, 42, 54, 60, 70-71, 75, and 77 and letters not docketed dated February 6, 2001, February
12, 2001, April 27, 2001, May 29, 2002, July 8, 2002, September 20, 2002, December 2, 2002, December
4, 2002, February 24, 2003, and March 10, 2003.
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Barney v. Consolidated Edison Co. of New York, Not Reported in F.Supp.2d (2006)
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8 Fourteen of the seventeen conferences were held before me (Docket Entries 18, 20, 27, 28, 29, 30, 33, 35,
36, 38, 41, 43, 45, and 48), and three were held before Judge Trager (Docket Entries 51, 66 and 73).
9 There is a factual dispute as to whether plaintiff provided the signed tax authorizations to defendant back in
July of 2003. It is clear, however, that defendant advised plaintiff in early 2004 that it had not received the
authorizations and that plaintiff did nothing to rectify it. Docket Entry 75.
10 Indeed, a review of cases in this district indicates that Mr. Mitchell's conduct in this case is no aberration.
See, e.g., Reed v. Prospect Gardens, 97-CV-2889 (DGT) (Docket Entry 6) (warning of preclusion if plaintiff's
counsel failed to submit timely expert report); Thelusma v. New York City Bd. of Educ., 02-CV-4446 (FB)
(Docket Entry 8) (noting a failure to appear at a prior conference, granting discovery extensions and noting
that “plaintiff has not proceeded diligently in this case, the fault appears to lie with counsel,” sanctioning Mr.
Mitchell for failing to appear at his client's deposition, and noting that “plaintiff's counsel has not heeded prior
deadlines”); Douglas v. Bovis Lend Lease LMB, Inc., 02-CV-5304 (ARR) (Docket Entry 14) (ordering plaintiff
to provide discovery on pain of sanctions); Lloyd v. Interfaith Nutrition Network, 03-CV-178 (ADS) (Docket
Entry 18) (ordering plaintiff to produce requested discovery, which was due more than 90 days prior, and
warning plaintiff that failure to comply could result in sanctions); Armstrong v. Brookdale Univ. Hosp. and
Med. Ctr., 02-CV-5017 (CPS) (Docket Entries 12, 28) (ordering Mr. Mitchell on two separate occasions to
show cause why the case should not be dismissed for failure to prosecute); Armstrong (Docket Entry 26)
(ordering Mr. Mitchell to show cause why he should not be sanctioned for his failure to comply with a court
order to provide releases and his failure to appear at a conference).
11 By letter dated May 8, 2006, Ms. Barney wrote to the Court inquiring of the status of the motion and stating
that “Mr. Mitchell and I have fulfilled all [discovery] requests including sending Con Edison copies of all my
tax returns.” Although it is clear that she is aware of the pending motion to dismiss, it does not appear that
she is fully aware of the court's past efforts to move this case forward or of the degree to which her own
attorney's actions are responsible for the substantial delays.
12 Federal Rule of Civil Procedure 37(b) provides that
if a party ... fails to obey an order to provide or permit discovery, the court ... may make such orders
in regard to the failure as are just, [including] ... (B) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or prohibiting that party from introducing designated
matters in evidence.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Dansby v. Albany County Correctional Facility Staff, Not Reported in F.Supp. (1996)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1996 WL 172699
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kevin DANSBY, Plaintiff,
v.
ALBANY COUNTY CORRECTIONAL
FACILITY STAFF, Defendant.
No. 95-CV-1525 (RSP/RWS).
|
April 10, 1996.
Attorneys and Law Firms
Kevin Dansby pro se.
ORDER
POOLER, District Judge.
*1 In an order and report-recommendation dated December
8, 1995, Magistrate Judge Smith noted that Dansby had
not signed the complaint he filed to commence this action.
Magistrate Judge Smith directed Dansby to submit an
affidavit which contained all of the representations delineated
in Fed.R.Civ.P. 11(b) with respect to his complaint. The
magistrate judge recommended dismissal of Dansby's action
if Dansby failed to comply with the terms of the report-
recommendation within forty-five (45) days from the date of
the service.
On December 12, 1995, a copy of the report-recommendation
was served on Dansby by regular mail to his last known
address, the Albany County Jail. On December 22, 1995, the
jail returned the report-recommendation marked “Return to
Sender -- No Forwarding Order on File.”
Rule 41(b) of the Federal Rules of Civil Procedure provides
that a court may, in its discretion, dismiss an action based upon
the failure of a plaintiff to prosecute an action or comply with
any order of the court. Link v. Wabash R.R. Co., 370 U.S. 626,
629 (1962). The district court may exercise its discretion to
dismiss when necessary to achieve orderly and expeditious
disposition of cases. See Rodriguez v. Walsh, 1994 W.L. 9688,
at *1 (S.D.N.Y. 1994).
Moreover, a plaintiff has the duty to inform the Court of any
address changes. As the Fifth Circuit has stated:
It is neither feasible nor legally
required that the clerks of the district
courts undertake independently to
maintain current addresses on all
parties to pending actions. It is
incumbent upon litigants to inform
the clerk of address changes, for
it is manifest that communications
between the clerk and the parties
or their counsel will be conducted
principally by mail. In addition to
keeping the clerk informed of any
change of address, parties are obliged
to make timely status inquiries.
Address changes normally would be
reflected by those inquiries if made in
writing.
Perkins v. King, No. 84-3310, slip op. at 4 (5th Cir. May 19,
1985) (citing Williams v. New Orleans Public Service, Inc.,
728 F.2d 730 (5th Cir. 1984); Wilson v. Atwood Group, 725
F.2d 255 (5th Cir. 1984) (en banc)); see Wehlen v. Foti et al.,
1987 W.L. 8039, at *1-2 (E.D.La. 1987); see generally Rule
41.2(b) of the Local Rules of Practice for the Northern District
of New York.
This matter cannot proceed without Dansby filing the
affidavit described above or notifying the court of his current
address. Therefore, it is hereby
ORDERED, that this action is dismissed. See Rules 5.4(b)(4)
and 41.2(b) of the Local Rules of Practice for the Northern
District of New York, and it is further
ORDERED, that the Clerk serve a copy of this Order on the
plaintiff by regular mail at his last known address.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp., 1996 WL 172699
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Dansby v. Albany County Correctional Facility Staff, Not Reported in F.Supp. (1996)
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End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-00969-FJS-ML Document 36 Filed 04/27/26 Page 26 of 40

Lebarron v. Warren County Sheriff's Office, Not Reported in Fed. Supp. (2016)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 2621796
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michelle A. LEBARRON, Plaintiff,
v.
WARREN COUNTY SHERIFF'S OFFICE, Nathan
H. York, James A. Lafarr, Marlo Barboza, Defendants.
No. 1:13–CV–1572 (GTS/CFH)
|
Signed 04/06/2016
Attorneys and Law Firms
Michelle A. LeBarron, P.O. Box 1486, 5 Mast Court, Berlin,
Maryland 21811, Plaintiff pro se.
Lemire, Johnson Law Firm, P.O. Box 2485, 2534 Route 9,
OF COUNSEL: GREGG T. JOHNSON, ESQ., BRADLEY
J. STEVENS, ESQ., Malta, New York 12020, Attorneys for
Defendants.
REPORT–RECOMMENDATION AND ORDER 1
CHRISTIAN F. HUMMEL, U.S. MAGISTRATE JUDGE
*1 In this action plaintiff pro se Michelle A. LeBarron
(“plaintiff”) alleges that, between March 3, 2005, the date
on which she filed a gender discrimination complaint with
the Equal Employment Opportunity Commission (“EEOC”)
against the Warren County Sheriff's Office, and July 22,
2011, the date on which she was terminated from her job
as a corrections officer, defendants discriminated against her
based on her gender. Plaintiff further alleges that defendants
retaliated against her based on her filing of the EEOC
complaint and the fact that the complaint was resolved
in her favor in 2009. Dkt. No. 1 (“Compl.”). Since the
commencement of this action, there has been extensive
motion practice, which resulted in the dismissal of many of
the claims in the complaint. See Dkt. No. 33. This action is
presently proceeding only on plaintiff's claims that defendant
County Sheriff's Office discriminated against her based on her
gender in violation of Title VII, to the extent the claim is based
on events occurring after April 16, 2011, and that defendants
York, LaFarr, and Marlo Barboza discriminated against her
based on her gender in violation of 42 U.S.C. § 1983 and the
Fourteenth Amendment.
Presently pending is defendants' motion to dismiss for failure
to prosecute pursuant to Federal Rules of Civil Procedure
(“Fed. R. Civ.P.”) 41 and 37. Dkt. No. 50. Plaintiff has not
responded to the pending motion. For the reasons set forth
below, is recommended that defendants' motion to dismiss for
failure to prosecute be granted.
I. Background
Plaintiff commenced this action on December 20, 2013 by the
filing of a complaint and motion to proceed in forma pauperis.
See Compl., Dkt. No. 2. On March 5, 2014, defendant Ernest
Barboza filed a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6). Dkt. No. 13. On April 24, 2014, defendants
Warren County Sheriff's Office, Nathan York, James LaFarr,
Marlo Barboza, Michael Gates, Albert Mayday, Wayne
Farmer, Daniel Clifford, Michael Feldeison, Steven Farmer,
Christopher Perilli, Michael Gordon, and Daniel Kelly filed
a motion to dismiss pursuant to Fed.R.Civ.P. 12(b) and (c).
Dkt. No. 22. Plaintiff filed opposition to the motion to dismiss.
Dkt. No. 29.
By Decision and Order dated May 13, 2015, the Court
dismissed with prejudice and without leave to amend the
following claims: (1) the individual County defendants
discriminated against her based on her gender in violation
of Title VII; (2) the individual County defendants retaliated
against her based on her filing of an EEOC complaint in
violation of Title VII; (3) defendant Warren County Sheriff's
Office retaliated against her based on her filing of an EEOC
complaint; (4) County defendants deprived her of substantive
due process in violation of 42 U.S.C. § 1983 and the
Fourteenth Amendment to the Constitution of the United
States; (5) defendant York wrongfully released her closed
disciplinary hearing charges and results to the media in
violation of Section 50–a of the New York State Civil Rights
Act; and (6) plaintiff's demand for punitive damages against
defendant Warren County Sheriff's Office. Dkt. No. 33. The
Court conditionally dismissed without further order of the
court, unless, within thirty days of the Decision and Order,
plaintiff filed an amended complaint to correct the defects
in the following claims: (1) defendant Trooper Barboza
retaliated against plaintiff based on her EEOC complaint (and
internal complaints) in violation of 42 U.S.C. § 1983 and
the First Amendment; (2) defendants County Sheriff's Office,
Gates, Maday, Farmer, Clifford, Feldeison, Farmer, Perilli,
Gordon, and Kelly discriminated against her based on her
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gender in violation of 42U.S.C. § 1983 and the Fourteenth
Amendment; (3) defendant Warren County Sheriff's Office
discriminated against her based on her gender in violation of
Title VII, to the extent the claim is based on events occurring
before April 16, 2011; (4) defendant Warren County Sheriff's
office retaliated against her based on her filing of an EEOC
complaint in violation of Title VII; and (5) the individual
County defendants retaliated against her based on her filing
of an EEOC complaint in violation of 42 U.S.C. § 1983 and
the First Amendment. Id. at 28. Finally, the Court denied
defendants' motion to dismiss plaintiff's claim that the Warren
County Sheriff's Office discriminated against her based on
her gender in violation of Title VII, to the extent that such
claim is based upon events occurring after April 16, 2011, and
her claim that defendants York, LaFar, and Marlo Barboza
discriminated against her based on her gender in violation of
42 U.S.C. § 1983 and the Fourteenth Amendment. Id. at 29.
*2 On May 19, 2015, the undersigned issued a text order
scheduling the Rule 16 conference for June 11, 2015. Dkt.
No. 34. On June 11, 2015, the Court issued a Uniform Pretrial
Scheduling Order which, among other things, directed that
discovery be completed by October 30, 2015, and directed
each party to file a report regarding the status of discovery by
September 8, 2015. Dkt. No. 39.
On September 18, 2015, the Court issued a notice directing
each of the parties to file a status report by October 2, 2015.
Dkt. No. 41. Defendants filed a status report on September
28, 2015. Dkt. No. 42. Plaintiff failed to file a status report.
By letter motion dated December 4, 2015, defendants
requested a brief extension of the discovery deadline. Dkt.
No. 43. On December 8, 2015, the Court granted the
extension request and issued a notice scheduling a discovery
conference for December 21, 2015. Dkt. Nos. 44, 45. The
notice provided: “please be advised that Plaintiff's failure
to attend conferences and participate in discovery may
result in dismissal of the claim.” Dkt. No. 45. The notice
further provided that plaintiff could appear in person or
telephonically. Id. A copy of that notice was served on
plaintiff by regular mail. See id. Plaintiff failed to appear for
that conference. See Dkt. entry dated 12/21/15.
On December 21, 2015, the Court issued a text notice setting
a briefing schedule for the defendants to file a motion to
dismiss, which directed that any such motions be filed by
January 19, 2016. See text not. dated 12/21/15. Plaintiff was
directed to file any response to that motion by February 5,
2016. Id. Defendants' reply was due by February 12, 2016. Id.
A copy of that text notice was served on plaintiff by regular
mail. Id. The text notice, sent to the plaintiff at the address
appearing on the Court docket, was returned to the Court as
undeliverable. Dkt No. 49.
On December 23, 2015, the attorney for defendant Ernest
Barboza filed a letter motion requesting, based upon plaintiff's
failure to file an amended complaint by June 13, 2015
as directed by this Court's Decision and Order dated May
13, 2015, that the Court issue judgment in favor of Ernest
Barboza. Dkt. No. 47. On December 23, 2015, the Court
issued a text order granting in part and denying in part
defendant Barboza's letter request. Dkt No. 48. The order
directed the Clerk of the Court to terminate Ernest Barboza
from this action and further provided that judgment will be
entered at the conclusion of this matter. Dkt. No. 48. A copy of
that text order was served upon plaintiff by e-mail, as plaintiff
has ECF filing status.
On January 15, 2016, defendants Marlo Barboza, LaFarr,
Warren County Sheriff's Office, and York filed a motion
for an Order dismissing plaintiff's complaint in its entirety
pursuant to Fed.R.Civ.P. 41 and 37, with prejudice. Dkt. No.
50. Plaintiff's response to that motion was due by February
5, 2016, with any reply to be filed by February 8, 2016. Dkt.
No.51. Plaintiff has not filed a response to the pending motion
to dismiss.
On January 22, 2016, defendants Clifford, Steven Farmer,
Wayne Farmer, Feldeison, Gates, Gordon, Kelly, Maday,
and Perilli filed a letter motion asking to be terminated as
defendants in this action. Dkt. No. 54. On January 22, 2016,
the Court issued a text order granting that letter motion and
directing that those defendants be terminated from this action.
Dkt. No. 54.
II. Discussion 2
*3 Fed.R.Civ.P. 41(b) provides that a court may dismiss an
action “[i]f the plaintiff fails to prosecute or comply with
[the Federal Rules of Civil Procedure] or a court order ...”
See Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962);
Baptiste v. Sommers, 768 F.3d. 212, 216 ( 2d Cir. 2014);
see also N.D.N.Y. L.R. 41.2(b). Since a Rule 41(b) dismissal
“is a harsh remedy ... [it] is appropriate only in extreme
situations.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1966)
(citations omitted). Furthermore, where the plaintiff is pro se,
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“courts should be especially hesitant to dismiss for procedural
deficiencies ...” Spencer v. Doe, 139 F.3d 107, 112 ( 2d Cir.
1998) (quoting Lucas, 84 F.3d at 535); see also Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d. Cir. 2006). A
determination whether to dismiss an action pursuant to Rule
41(b) involves consideration of:
(1) the duration of the plaintiff's
failure to comply with the court
order, (2) whether plaintiff was
on notice that failure to comply
will result in dismissal, (3) whether
the defendants are likely to be
prejudiced by for the delay in the
proceedings, (4) a balancing of
the court's interest in managing its
docket with the plaintiff's interest
in receiving a fair chance to be
heard, and (5) whether the judge has
adequately considered a sanction
less drastic than dismissal.
Lucas, 84 F.3d at 535 (citing Jackson v. City of New York, 22
F.3d 71, 74 (2d Cir. 1994)) (additional citations omitted).
A review of this case's procedural history shows that the
complaint was filed on December 20, 2013. Dkt. No. 1.
As such, over two years have elapsed since the filing of
this action, yet virtually no discovery has been conducted
as a result of plaintiff's failure to comply with this Court's
scheduling order.
On March 20, 2014, the undersigned issued a text order
which directed that the parties file a civil case management
plan and exchange mandatory disclosures by April 28,
2014. Dkt. No. 19. Although the moving defendants sent
plaintiff their initial disclosure on June 1, 2015, plaintiff has
never served any initial disclosure in this matter. Dkt. No.
50–1 at 6. On September 25, 2015, defendants submitted
a demand for production of documents and a notice for
examination before trial to plaintiff by way of a letter dated
September 25, 2015. Dkt. No. 43. Plaintiff's deposition
was scheduled for October 26, 2015. As the deposition
approached, defendants made numerous efforts to contact
plaintiff to confirm her attendance. Dkt. No. 50–1 at 6. On
October 22, 2015 defendants received an e-mail from plaintiff
which acknowledged her failure to respond to document
demands, advised that she would not appear for a deposition,
and noted that she would be responding directly to the
Court. Dkt. No. 43, Exh B. Plaintiff has never contacted
the Court to address her deposition or failure to respond to
defendants' document requests. Defendants have not received
any communication from plaintiff since her October 22, 2015
e-mail. Dkt. No. 50–1 at 7.
On December 8, 2015, this Court issued a notice, served on
plaintiff by regular mail, scheduling a discovery conference
for December 21, 2015. Dkt. No. 45. The notice specifically
advised plaintiff that her failure to attend conferences
and participate in discovery may result in the dismissal
of her claim. Id. Even after having been advised of the
consequences of her failure to participate in discovery and
attend conferences, and permitting plaintiff the opportunity
to appear by telephone, plaintiff failed to appear for the
conference.
*4 As a result of plaintiff's failure to serve mandatory
disclosure as directed by this Court's May 20, 2014 Order,
failure to respond to defendants' discovery requests and her
failure to appear for a deposition, defendants have been
denied access to information they need in order to prepare
a proper defense in this matter. Shannon v. Gen. Elec. Co.,
186 F.3d 186,195 (2d. Cir. 1999). Plaintiff's failure to provide
document discovery and failure to appear for deposition have
significantly delayed the resolution of this matter, thereby
contributing to the Court's congestion.
The final consideration in determining whether to grant the
motion to dismiss for failure to prosecute is an assessment
of whether there is a sanction less drastic than dismissal. 3
Mindful of the principles of law pronounced above, the
undersigned determines that the dismissal of plaintiff's
complaint is the appropriate result in this matter. Here,
plaintiff has completely and intentionally disregarded the
Uniform Pretrial Scheduling Order which issued on June 11,
2015. Dkt. No. 39. That order directed, among other things,
that all discovery be completed by October 30, 2015. As
noted, plaintiff has failed to provide defendants with any
discovery and has refused to appear for deposition. Even
after the Court advised plaintiff that her failure to attend
conferences and participate in discovery may result in the
dismissal of this action, plaintiff failed to attend the Court
conference. See Dkt. entry dated Dec. 21, 2015. Plaintiff has
also failed to submit any opposition to this motion to dismiss
for lack of prosecution. In addition, it appears that the address
which plaintiff provided to the Court is no longer valid as a
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Text Order mail to plaintiff at that address was returned as
undeliverable. Dkt. No. 49. Plaintiff has failed to comply with
her duty to update the Court as to any changes of address.
In recommending the dismissal of this action, the undersigned
is aware that dismissal is particularly harsh remedy, especially
when invoked against a pro se plaintiff. Salahuddin v. Harris,
782 F.2d 1127,1132 (2d. Cir. 1986); Sec. and Exch. Comm'n
v. Research Automation Corp., 521 F.2d 585, 588–89 (2d. Cir.
1975). Given plaintiff's apparent abandonment of this action
and complete refusal to comply with this Court's orders, the
Court finds that the imposition of a lesser sanction would have
no effect on Plaintiff or this litigation which has been pending
since December 20, 2013. See Dkt. No. 1.
III. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby
RECOMMENDED that defendants' motion to dismiss for
failure to prosecute (Dkt. No. 50) be GRANTED; and that the
complaint (Dkt. No. 1) be dismissed in its entirety; and it is
ORDERED, that copies of this Report–Recommendation and
Order be served on the parties in accordance with Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(e), 72.
*5 IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 2621796
Footnotes
1 This matter was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636 (b)
and N. D.N.Y.L.R. 72.3 (c).
2 All unpublished opinions cited to by the Court in this Report–Recommendation and Order are, unless
otherwise noted, attached to this Report–Recommendation and Order.
3 Defendants request, in the alternative, (Dkt No. 50), that dismissal be considered under Rule 37 for plaintiff's
failure to attend the deposition. See FED. R. CIV. P. 37. Since “courts consider the same factors applicable
to Rule 41(b) when considering dismissal pursuant to Rule 37[']” no additional analysis is needed. Barney
v. Consol. Edison Co. of New York, No. 99–CV–823 (DGT), 2006 WL 4401019, at *16 (E.D.N.Y. July 19,
2006 (citations omitted).
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LeBarron v. Warren County Sheriff's Office, Not Reported in Fed. Supp. (2016)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 2636293
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michelle a LEBARRON, Plaintiff,
v.
WARREN COUNTY SHERIFF'S OFFICE; Nathan H.
York; James A. Lafarr; and Marlo Barboza, Defendants.
1:13-CV-1572 (GTS/CFH)
|
Signed 05/06/2016
Attorneys and Law Firms
MICHELLE A. LeBARRON, P.O. Box 1486, 5 Mast Court,
Berlin, Maryland 21811, Plaintiff, Pro Se.
LEMIRE, JOHNSON & HIGGINS, LLC, P.O. Box 2485,
2534 Route 9, OF COUNSEL: GREGG T. JOHNSON, ESQ.,
BRADLEY J. STEVENS, ESQ., Malta, New York 12020,
Counsel for Defendants.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this pro se employment
discrimination action filed by Michele LeBarron (“Plaintiff”)
against the Warren County Sheriff's Office and three of its
employees (“Defendants”) arising from Plaintiff's termination
as a corrections officer in July 2011, are the following:
(1) Defendants' motion to dismiss Plaintiff's Complaint for
failure to prosecute and/or comply with a Court Order
pursuant to Fed. R. Civ. P. 41(b) and/or as a sanction for
failure to appear at her deposition and failure to comply with a
Court Order pursuant Fed. R. Civ. P. 37(b),(d); and (2) United
States Magistrate Judge Christian F. Hummel's Report-
Recommendation recommending that Defendants' motion be
granted. (Dkt. Nos. 46, 53.) None of the parties have filed
objections to the Report-Recommendation, and the deadline
by which to do so has expired. (See generally Docket
Sheet.) After carefully reviewing the relevant papers herein,
including Magistrate Judge Hummel's thorough Report-
Recommendation, the Court can find no clear-error in
the Report-Recommendation. 1 Magistrate Judge Hummel
employed the proper standards, accurately recited the facts,
and reasonably applied the law to those facts. As a result,
the Report-Recommendation is accepted and adopted in its
entirety for the reasons set forth therein, Defendants' motion is
granted, and Plaintiff's Complaint is dismissed in its entirety.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel's Report-
Recommendation (Dkt. No. 57) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Defendants' motion to dismiss (Dkt. No. 50)
is GRANTED; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED in its entirety; and it is further
ORDERED that the Clerk of the Court shall enter Judgment
for Defendants and close this action.
All Citations
Not Reported in Fed. Supp., 2016 WL 2636293
Footnotes
1 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to
only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing
such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record
in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at
*1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal
quotation marks omitted).
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Rodriguez v. Goord, Not Reported in F.Supp.2d (2007)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2007 WL 4246443
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Jose RODRIGUEZ, Plaintiff,
v.
Glen S. GOORD, et al, Defendants.
No. 9:04-CV-0358 (FJS/GHL).
|
Nov. 27, 2007.
Attorneys and Law Firms
Jose Rodriguez, Willard, NY, pro se.
Andrew M. Cuomo, Attorney General of the State of New
York, David L. Cochran, Esq., Assistant Attorney General, of
Counsel, Albany, NY, for Defendants.
DECISION AND ORDER
FREDERICK J. SCULLIN, Senior District Judge.
*1 The above-captioned matter having been presented to
me by the Report-Recommendation of Magistrate Judge
George H. Lowe filed November 6, 2007, and the Court
having reviewed the Report-Recommendation and the entire
file in this matter, and no objections to said Report-
Recommendation having been filed, the Court hereby
ORDERS, that Magistrate Judge Lowe's November 6, 2007
Report-Recommendation is ACCEPTED in its entirety for
the reasons stated therein; and the Court further
ORDERS, that Defendants' motion, pursuant to Local Rule
41.2(b), to dismiss for Plaintiff's failure to provide notice to
the Court of a change of address, is GRANTED; and the
Court further
ORDERS, that the Clerk of the Court enter judgment in favor
of the Defendants and close this case.
IT IS SO ORDERED.
REPORT-RECOMMENDATION
GEORGE H. LOWE, United States Magistrate Judge.
This pro se prisoner civil rights action, filed pursuant to
42 U.S.C. § 1983, has been referred to me for Report and
Recommendation by the Honorable Frederick J. Scullin, Jr.,
Senior United States District Judge, pursuant to 28 U.S.C. §
636(b) and Local Rule 72.3(c) of the Local Rules of Practice
for this Court. Generally, Jose Rodriguez (“Plaintiff”) alleges
that, while he was an inmate at Oneida Correctional Facility
in 2003 and 2004, ten employees of the New York State
Department of Correctional Services (“Defendants”) were
deliberately indifferent to his serious medical needs, and
subjected him to cruel and unusual prison conditions, in
violation of the Eighth Amendment. (Dkt. No. 27 [Plf .'s
Am. Compl.].) Currently pending is Defendants' motion to
dismiss for failure to provide notice to the Court of a change
of address, pursuant to Local Rule 41.2(b) of the Local
Rules of Practice for this Court. (Dkt. No. 86.) Plaintiff has
not opposed the motion, despite having been given more
than six weeks in which to do so. Under the circumstances,
I recommend that (1) Defendants' motion to dismiss be
granted, and (2) in the alternative, the Court exercise its
inherent authority to sua sponte dismiss Plaintiff's Amended
Complaint for failure to prosecute and/or failure to comply
with an Order of the Court.
I. DEFENDANTS' MOTION TO DISMISS
Under the Local Rules of Practice for this Court, Plaintiff has
effectively “consented” to the granting of Defendants' motion
to dismiss, since (1) he failed to oppose the motion, (2) the
motion was properly filed, and (3) Defendants have, through
the motion, met their burden of demonstrating entitlement to
the relief requested in the motion. L.R. 7.1(b)(3).
In particular, with regard to this last factor (i.e., that
Defendants have met their burden of demonstrating
entitlement to the relief requested), Defendants argue that
their motion to dismiss should be granted because (1) Local
Rule 41.2(b) provides that “[f]ailure to notify the Court of a
change of address in accordance with [Local Rule] 10.1(b)
may result in the dismissal of any pending action,” (2) on
April 15, 2004, Plaintiff was specifically advised of this rule
when (through Dkt. No. 5, at 4) the Court advised Plaintiff
that “his failure to [promptly notify the Clerk's Office and
all parties or their counsel of any change in his address]
will result in the dismissal of his action,” (3) on May 22,
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2007, Plaintiff was released from the Willard Drug Treatment
Center, (4) since that time, Plaintiff has failed to provide
notice to the Court (or Defendants) of his new address, as
required by Local Rule 10.1(b)(2), and (5) as a result of
this failure, Defendants have been prejudiced in that they
have been unable to contact Plaintiff in connection with this
litigation (e.g., in order to depose him, as authorized by the
Court on May 4, 2007). (Dkt. No. 86, Part 4, at 1-2 [Defs.'
Mem. of Law].)
*2 Authority exists suggesting that an inquiry into the
third factor (i.e., whether a movant has met its “burden
to demonstrate entitlement” to dismissal under Local Rule
7.1[b][3] ) is a more limited endeavor than a review of
a contested motion to dismiss. 1 Specifically, under such
an analysis, the movant's burden of persuasion is lightened
such that, in order to succeed, his motion need only be
“facially meritorious.” 2 Given that Defendants accurately
cite the law and facts in their memorandum of law, I find
that they have met their lightened burden on their unopposed
motion. Moreover, I am confident that I would reach the same
conclusion even if their motion were contested.
For these reasons, I recommend that the Court grant
Defendants' motion to dismiss.
II. SUA SPONTE DISMISSAL
Even if Defendants have not met their burden on their motion
to dismiss, the Court possesses the inherent authority to
dismiss Plaintiff's Amended Complaint sua sponte under
the circumstances. Rule 41 of the Federal Rules of Civil
Procedure permits a defendant to move to dismiss a
proceeding for (1) failure to prosecute the action and/or (2)
failure to comply with the Federal Rules of Civil Procedure
or an Order of the Court. Fed.R.Civ.P. 41(b). 3 However,
it has long been recognized that, despite Rule 41 (which
speaks only of a motion to dismiss on the referenced grounds,
and not a sua sponte order of dismissal on those grounds),
courts retain the “inherent power” to sua sponte “clear their
calendars of cases that have remained dormant because of
the inaction or dilatoriness of the parties seeking relief.” Link
v. Wabash R.R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 8
L.Ed.2d 734 (1962); see also Saylor v. Bastedo, 623 F.2d
230, 238 (2d Cir.1980); Theilmann v. Rutland Hospital, Inc.,
455 F.2d 853, 855 (2d Cir.1972). Indeed, Local Rule 41.2(a)
not only recognizes this authority but requires that it be
exercised in appropriate circumstances. See N.D.N.Y. L.R.
41.2(a) (“Whenever it appears that the plaintiff has failed
to prosecute an action or proceeding diligently, the assigned
judge shall order it dismissed.”) [emphasis added].
A. Failure to Prosecute
With regard to the first ground for dismissal (a failure to
prosecute the action), it is within the trial judge's sound
discretion to dismiss for want of prosecution. 4 The Second
Circuit has identified five factors that it considers when
reviewing a district court's order to dismiss an action for
failure to prosecute:
[1] the duration of the plaintiff's failures, [2] whether
plaintiff had received notice that further delays would result
in dismissal, [3] whether the defendant is likely to be
prejudiced by further delay, [4] whether the district judge
has taken care to strike the balance between alleviating
court calendar congestion and protecting a party's right to
due process and a fair chance to be heard and [5] whether
the judge has adequately assessed the efficacy of lesser
sanctions. 5
*3 As a general rule, no single one of these five factors is
dispositive. 6 However, I note that, with regard to the first
factor, Rule 41.2 of the Local Rules of Practice for this Court
provides that a “plaintiff's failure to take action for four (4)
months shall be presumptive evidence of lack of prosecution.”
N.D.N.Y. L.R. 41.2(a). In addition, I note that a party's failure
to keep the Clerk's Office apprised of his or her current
address may also constitute grounds for dismissal under Rule
41(b) of the Federal Rules of Civil Procedure. 7
Here, I find that, under the circumstances, the above-
described factors weigh in favor of dismissal. The duration
of Plaintiff's failure is some six-and-a-half months, i.e.,
since April 22, 2007, the date of the last document that
Plaintiff attempted to file with the Court (Dkt. No. 85).
Plaintiff received adequate notice (e.g., through the Court's
above-referenced Order of April 15, 2004, and Defendants'
motion to dismiss) that his failure to litigate this action
(e.g., through providing a current address) would result in
dismissal. Defendants are likely to be prejudiced by further
delays in this proceeding, since they have been waiting to
take Plaintiff's deposition since May 4, 2007. (Dkt. No. 84.)
I find that the need to alleviate congestion on the Court's
docket outweighs Plaintiff's right to receive a further chance
to be heard in this action. 8 Finally, I have considered all
less-drastic sanctions and rejected them, largely because they
would be futile under the circumstances (e.g., an Order
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warning or chastising Plaintiff may very well not reach him,
due to his failure to provide a current address).
B. Failure to Comply with Order of Court
With regard to the second ground for dismissal (a failure
to comply with an Order of the Court), the legal standard
governing such a dismissal is very similar to the legal standard
governing a dismissal for failure to prosecute. “Dismissal ...
for failure to comply with an order of the court is a matter
committed to the discretion of the district court.” 9 The
correctness of a dismissal for failure to comply with an order
of the court is determined in light of five factors:
(1) the duration of the plaintiff's failure to comply with
the court order, (2) whether plaintiff was on notice that
failure to comply would result in dismissal, (3) whether the
defendants are likely to be prejudiced by further delay in
the proceedings, (4) a balancing of the court's interest in
managing its docket with the plaintiff's interest in receiving
a fair chance to be heard, and (5) whether the judge
has adequately considered a sanction less drastic than
dismissal. 10
Here, I find that, under the circumstances, the above-
described factors weigh in favor of dismissal for the same
reasons as described above in Part II.A. of this Report-
Recommendation. I note that the Order that Plaintiff has
violated is the Court's Order of April 15, 2004, wherein the
Court ordered Plaintiff, inter alia, to keep the Clerk's Office
apprised of his current address. (Dkt. No. 5, at 4.) Specifically,
the Court advised plaintiff that “[p]laintiff is also required
to promptly notify the Clerk's Office and all parties or their
counsel of any change in plaintiff's address; his failure to
do same will result in the dismissal of this action.” (Id.) I
note also that, on numerous previous occasions in this action,
Plaintiff violated this Order, resulting in delays in the action.
(See Dkt. Nos. 47, 48, 49, 50, 54, 59, 72, 78, 79 & Dkt. Entry
for 12/15/06 [indicating that mail from the Court to Plaintiff
was returned as undeliverable].)
*4 As a result, I recommend that, should the Court decide
to deny Defendants' motion to dismiss, the Court exercise
its authority to dismiss Plaintiff's Amended Complaint sua
sponte for failure to prosecute and/or failure to comply with
an Order of the Court.
ACCORDINGLY, for the reasons stated above, it is
RECOMMENDED that Defendants' motion to dismiss (Dkt.
No. 86) be GRANTED%; and it is further
RECOMMENDED that, in the alternative, the Court
exercise its inherent authority to SUA SPONTE DISMISS
Plaintiff's Amended Complaint for failure to prosecute and/or
failure to comply with an Order of the Court.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten
(10) days within which to file written objections to the
foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS
REPORT WITHIN TEN (10) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85,
89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human
Servs., 892 F.2d 15 [2d Cir.1989] ); 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72, 6(a), 6(e)..
All Citations
Not Reported in F.Supp.2d, 2007 WL 4246443
Footnotes
1 See, e.g., Hernandez v. Nash, 00-CV-1564, 2003 U.S. Dist. LEXIS 16258, at *7-8, 2003 WL 22143709
(N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) (before an unopposed motion to dismiss may be granted under
Local Rule 7.1[b][3], “the court must review the motion to determine whether it is facially meritorious ”)
[emphasis added; citations omitted]; Race Safe Sys. v. Indy Racing League, 251 F.Supp.2d 1106, 1109-10
(N.D.N.Y.2003) (Munson, J.) (reviewing whether record contradicted defendant's arguments, and whether
record supported plaintiff's claims, in deciding unopposed motion to dismiss, under Local Rule 7.1[b][3] );
see also Wilmer v. Torian, 96-CV-1269, 1997 U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997) (Hurd,
M .J.) (applying prior version of Rule 7.1 [b][3], but recommending dismissal because of plaintiff's failure to
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respond to motion to dismiss and the reasons set forth in defendants' motion papers), adopted by 1997 U.S.
Dist. LEXIS 16340, at *2 (N.D.N.Y. Oct. 14, 1997) (Pooler, J.); accord, Carter v. Superintendent Montello, 95-
CV-0989, 1996 U.S. Dist. LEXIS 15072, at *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F.Supp.
595 (N.D.N.Y.1996) (Pooler, J.).
2 See, e.g., Hernandez, 2003 U.S. Dist. LEXIS 1625 at *8.
3 Fed.R.Civ.P. 41(b) (providing, in pertinent part, that “[f]or 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”).
4 See Merker v. Rice, 649 F.2d 171, 173 (2d Cir.1981).
5 See Shannon v. GE Co., 186 F.3d 186, 193 (2d Cir.1999) (affirming Rule 41[b] dismissal of plaintiff's claims
by U.S. District Court for Northern District of New York based on plaintiff's failure to prosecute the action)
[citation and internal quotation marks omitted].
6 See Nita v. Conn. Dep't of Env. Protection, 16 F.3d 482 (2d Cir.1994).
7 See, e.g., Robinson v. Middaugh, 95-CV-0836, 1997 U.S. Dist. LEXIS 13929, at *2-3, 1997 WL 567961
(N.D.N.Y. Sept. 11, 1997) (Pooler, J.) (dismissing action under Fed.R.Civ.P. 41[b] where plaintiff failed to
inform the Clerk of his change of address despite having been previously ordered by Court to keep the Clerk
advised of such a change); see also N.D.N.Y. L.R. 41.2(b) (“Failure to notify the Court of a change of address
in accordance with [Local Rule] 10.1(b) may result in the dismissal of any pending action.”).
8 It is cases like this one that delay the resolution of other cases, and that contribute to the Second Circuit's
dubious distinction as having (among the twelve circuits, including the D.C. Circuit) the longest median time
to disposition for prisoner civil rights cases, between 2000 and 2005 (9.8 months, as compared to a national
average of 5.7 months). Simply stated, I am unable to afford Plaintiff with further special solicitude without
impermissibly burdening the Court and unfairly tipping the scales of justice against Defendant.
9 Alvarez v. Simmons Market Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir.1988) [citations omitted].
10 Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.1996) [citations omitted].
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2007 WL 4246443
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Jose RODRIGUEZ, Plaintiff,
v.
Glen S. GOORD, et al, Defendants.
No. 9:04-CV-0358 (FJS/GHL).
|
Nov. 27, 2007.
Attorneys and Law Firms
Jose Rodriguez, Willard, NY, pro se.
Andrew M. Cuomo, Attorney General of the State of New
York, David L. Cochran, Esq., Assistant Attorney General, of
Counsel, Albany, NY, for Defendants.
DECISION AND ORDER
FREDERICK J. SCULLIN, Senior District Judge.
*1 The above-captioned matter having been presented to
me by the Report-Recommendation of Magistrate Judge
George H. Lowe filed November 6, 2007, and the Court
having reviewed the Report-Recommendation and the entire
file in this matter, and no objections to said Report-
Recommendation having been filed, the Court hereby
ORDERS, that Magistrate Judge Lowe's November 6, 2007
Report-Recommendation is ACCEPTED in its entirety for
the reasons stated therein; and the Court further
ORDERS, that Defendants' motion, pursuant to Local Rule
41.2(b), to dismiss for Plaintiff's failure to provide notice to
the Court of a change of address, is GRANTED; and the
Court further
ORDERS, that the Clerk of the Court enter judgment in favor
of the Defendants and close this case.
IT IS SO ORDERED.
REPORT-RECOMMENDATION
GEORGE H. LOWE, United States Magistrate Judge.
This pro se prisoner civil rights action, filed pursuant to
42 U.S.C. § 1983, has been referred to me for Report and
Recommendation by the Honorable Frederick J. Scullin, Jr.,
Senior United States District Judge, pursuant to 28 U.S.C. §
636(b) and Local Rule 72.3(c) of the Local Rules of Practice
for this Court. Generally, Jose Rodriguez (“Plaintiff”) alleges
that, while he was an inmate at Oneida Correctional Facility
in 2003 and 2004, ten employees of the New York State
Department of Correctional Services (“Defendants”) were
deliberately indifferent to his serious medical needs, and
subjected him to cruel and unusual prison conditions, in
violation of the Eighth Amendment. (Dkt. No. 27 [Plf .'s
Am. Compl.].) Currently pending is Defendants' motion to
dismiss for failure to provide notice to the Court of a change
of address, pursuant to Local Rule 41.2(b) of the Local
Rules of Practice for this Court. (Dkt. No. 86.) Plaintiff has
not opposed the motion, despite having been given more
than six weeks in which to do so. Under the circumstances,
I recommend that (1) Defendants' motion to dismiss be
granted, and (2) in the alternative, the Court exercise its
inherent authority to sua sponte dismiss Plaintiff's Amended
Complaint for failure to prosecute and/or failure to comply
with an Order of the Court.
I. DEFENDANTS' MOTION TO DISMISS
Under the Local Rules of Practice for this Court, Plaintiff has
effectively “consented” to the granting of Defendants' motion
to dismiss, since (1) he failed to oppose the motion, (2) the
motion was properly filed, and (3) Defendants have, through
the motion, met their burden of demonstrating entitlement to
the relief requested in the motion. L.R. 7.1(b)(3).
In particular, with regard to this last factor (i.e., that
Defendants have met their burden of demonstrating
entitlement to the relief requested), Defendants argue that
their motion to dismiss should be granted because (1) Local
Rule 41.2(b) provides that “[f]ailure to notify the Court of a
change of address in accordance with [Local Rule] 10.1(b)
may result in the dismissal of any pending action,” (2) on
April 15, 2004, Plaintiff was specifically advised of this rule
when (through Dkt. No. 5, at 4) the Court advised Plaintiff
that “his failure to [promptly notify the Clerk's Office and
all parties or their counsel of any change in his address]
will result in the dismissal of his action,” (3) on May 22,
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2007, Plaintiff was released from the Willard Drug Treatment
Center, (4) since that time, Plaintiff has failed to provide
notice to the Court (or Defendants) of his new address, as
required by Local Rule 10.1(b)(2), and (5) as a result of
this failure, Defendants have been prejudiced in that they
have been unable to contact Plaintiff in connection with this
litigation (e.g., in order to depose him, as authorized by the
Court on May 4, 2007). (Dkt. No. 86, Part 4, at 1-2 [Defs.'
Mem. of Law].)
*2 Authority exists suggesting that an inquiry into the
third factor (i.e., whether a movant has met its “burden
to demonstrate entitlement” to dismissal under Local Rule
7.1[b][3] ) is a more limited endeavor than a review of
a contested motion to dismiss. 1 Specifically, under such
an analysis, the movant's burden of persuasion is lightened
such that, in order to succeed, his motion need only be
“facially meritorious.” 2 Given that Defendants accurately
cite the law and facts in their memorandum of law, I find
that they have met their lightened burden on their unopposed
motion. Moreover, I am confident that I would reach the same
conclusion even if their motion were contested.
For these reasons, I recommend that the Court grant
Defendants' motion to dismiss.
II. SUA SPONTE DISMISSAL
Even if Defendants have not met their burden on their motion
to dismiss, the Court possesses the inherent authority to
dismiss Plaintiff's Amended Complaint sua sponte under
the circumstances. Rule 41 of the Federal Rules of Civil
Procedure permits a defendant to move to dismiss a
proceeding for (1) failure to prosecute the action and/or (2)
failure to comply with the Federal Rules of Civil Procedure
or an Order of the Court. Fed.R.Civ.P. 41(b). 3 However,
it has long been recognized that, despite Rule 41 (which
speaks only of a motion to dismiss on the referenced grounds,
and not a sua sponte order of dismissal on those grounds),
courts retain the “inherent power” to sua sponte “clear their
calendars of cases that have remained dormant because of
the inaction or dilatoriness of the parties seeking relief.” Link
v. Wabash R.R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 8
L.Ed.2d 734 (1962); see also Saylor v. Bastedo, 623 F.2d
230, 238 (2d Cir.1980); Theilmann v. Rutland Hospital, Inc.,
455 F.2d 853, 855 (2d Cir.1972). Indeed, Local Rule 41.2(a)
not only recognizes this authority but requires that it be
exercised in appropriate circumstances. See N.D.N.Y. L.R.
41.2(a) (“Whenever it appears that the plaintiff has failed
to prosecute an action or proceeding diligently, the assigned
judge shall order it dismissed.”) [emphasis added].
A. Failure to Prosecute
With regard to the first ground for dismissal (a failure to
prosecute the action), it is within the trial judge's sound
discretion to dismiss for want of prosecution. 4 The Second
Circuit has identified five factors that it considers when
reviewing a district court's order to dismiss an action for
failure to prosecute:
[1] the duration of the plaintiff's failures, [2] whether
plaintiff had received notice that further delays would result
in dismissal, [3] whether the defendant is likely to be
prejudiced by further delay, [4] whether the district judge
has taken care to strike the balance between alleviating
court calendar congestion and protecting a party's right to
due process and a fair chance to be heard and [5] whether
the judge has adequately assessed the efficacy of lesser
sanctions. 5
*3 As a general rule, no single one of these five factors is
dispositive. 6 However, I note that, with regard to the first
factor, Rule 41.2 of the Local Rules of Practice for this Court
provides that a “plaintiff's failure to take action for four (4)
months shall be presumptive evidence of lack of prosecution.”
N.D.N.Y. L.R. 41.2(a). In addition, I note that a party's failure
to keep the Clerk's Office apprised of his or her current
address may also constitute grounds for dismissal under Rule
41(b) of the Federal Rules of Civil Procedure. 7
Here, I find that, under the circumstances, the above-
described factors weigh in favor of dismissal. The duration
of Plaintiff's failure is some six-and-a-half months, i.e.,
since April 22, 2007, the date of the last document that
Plaintiff attempted to file with the Court (Dkt. No. 85).
Plaintiff received adequate notice (e.g., through the Court's
above-referenced Order of April 15, 2004, and Defendants'
motion to dismiss) that his failure to litigate this action
(e.g., through providing a current address) would result in
dismissal. Defendants are likely to be prejudiced by further
delays in this proceeding, since they have been waiting to
take Plaintiff's deposition since May 4, 2007. (Dkt. No. 84.)
I find that the need to alleviate congestion on the Court's
docket outweighs Plaintiff's right to receive a further chance
to be heard in this action. 8 Finally, I have considered all
less-drastic sanctions and rejected them, largely because they
would be futile under the circumstances (e.g., an Order
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warning or chastising Plaintiff may very well not reach him,
due to his failure to provide a current address).
B. Failure to Comply with Order of Court
With regard to the second ground for dismissal (a failure
to comply with an Order of the Court), the legal standard
governing such a dismissal is very similar to the legal standard
governing a dismissal for failure to prosecute. “Dismissal ...
for failure to comply with an order of the court is a matter
committed to the discretion of the district court.” 9 The
correctness of a dismissal for failure to comply with an order
of the court is determined in light of five factors:
(1) the duration of the plaintiff's failure to comply with
the court order, (2) whether plaintiff was on notice that
failure to comply would result in dismissal, (3) whether the
defendants are likely to be prejudiced by further delay in
the proceedings, (4) a balancing of the court's interest in
managing its docket with the plaintiff's interest in receiving
a fair chance to be heard, and (5) whether the judge
has adequately considered a sanction less drastic than
dismissal. 10
Here, I find that, under the circumstances, the above-
described factors weigh in favor of dismissal for the same
reasons as described above in Part II.A. of this Report-
Recommendation. I note that the Order that Plaintiff has
violated is the Court's Order of April 15, 2004, wherein the
Court ordered Plaintiff, inter alia, to keep the Clerk's Office
apprised of his current address. (Dkt. No. 5, at 4.) Specifically,
the Court advised plaintiff that “[p]laintiff is also required
to promptly notify the Clerk's Office and all parties or their
counsel of any change in plaintiff's address; his failure to
do same will result in the dismissal of this action.” (Id.) I
note also that, on numerous previous occasions in this action,
Plaintiff violated this Order, resulting in delays in the action.
(See Dkt. Nos. 47, 48, 49, 50, 54, 59, 72, 78, 79 & Dkt. Entry
for 12/15/06 [indicating that mail from the Court to Plaintiff
was returned as undeliverable].)
*4 As a result, I recommend that, should the Court decide
to deny Defendants' motion to dismiss, the Court exercise
its authority to dismiss Plaintiff's Amended Complaint sua
sponte for failure to prosecute and/or failure to comply with
an Order of the Court.
ACCORDINGLY, for the reasons stated above, it is
RECOMMENDED that Defendants' motion to dismiss (Dkt.
No. 86) be GRANTED%; and it is further
RECOMMENDED that, in the alternative, the Court
exercise its inherent authority to SUA SPONTE DISMISS
Plaintiff's Amended Complaint for failure to prosecute and/or
failure to comply with an Order of the Court.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten
(10) days within which to file written objections to the
foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS
REPORT WITHIN TEN (10) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85,
89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human
Servs., 892 F.2d 15 [2d Cir.1989] ); 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72, 6(a), 6(e)..
All Citations
Not Reported in F.Supp.2d, 2007 WL 4246443
Footnotes
1 See, e.g., Hernandez v. Nash, 00-CV-1564, 2003 U.S. Dist. LEXIS 16258, at *7-8, 2003 WL 22143709
(N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) (before an unopposed motion to dismiss may be granted under
Local Rule 7.1[b][3], “the court must review the motion to determine whether it is facially meritorious ”)
[emphasis added; citations omitted]; Race Safe Sys. v. Indy Racing League, 251 F.Supp.2d 1106, 1109-10
(N.D.N.Y.2003) (Munson, J.) (reviewing whether record contradicted defendant's arguments, and whether
record supported plaintiff's claims, in deciding unopposed motion to dismiss, under Local Rule 7.1[b][3] );
see also Wilmer v. Torian, 96-CV-1269, 1997 U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997) (Hurd,
M .J.) (applying prior version of Rule 7.1 [b][3], but recommending dismissal because of plaintiff's failure to
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respond to motion to dismiss and the reasons set forth in defendants' motion papers), adopted by 1997 U.S.
Dist. LEXIS 16340, at *2 (N.D.N.Y. Oct. 14, 1997) (Pooler, J.); accord, Carter v. Superintendent Montello, 95-
CV-0989, 1996 U.S. Dist. LEXIS 15072, at *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F.Supp.
595 (N.D.N.Y.1996) (Pooler, J.).
2 See, e.g., Hernandez, 2003 U.S. Dist. LEXIS 1625 at *8.
3 Fed.R.Civ.P. 41(b) (providing, in pertinent part, that “[f]or 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”).
4 See Merker v. Rice, 649 F.2d 171, 173 (2d Cir.1981).
5 See Shannon v. GE Co., 186 F.3d 186, 193 (2d Cir.1999) (affirming Rule 41[b] dismissal of plaintiff's claims
by U.S. District Court for Northern District of New York based on plaintiff's failure to prosecute the action)
[citation and internal quotation marks omitted].
6 See Nita v. Conn. Dep't of Env. Protection, 16 F.3d 482 (2d Cir.1994).
7 See, e.g., Robinson v. Middaugh, 95-CV-0836, 1997 U.S. Dist. LEXIS 13929, at *2-3, 1997 WL 567961
(N.D.N.Y. Sept. 11, 1997) (Pooler, J.) (dismissing action under Fed.R.Civ.P. 41[b] where plaintiff failed to
inform the Clerk of his change of address despite having been previously ordered by Court to keep the Clerk
advised of such a change); see also N.D.N.Y. L.R. 41.2(b) (“Failure to notify the Court of a change of address
in accordance with [Local Rule] 10.1(b) may result in the dismissal of any pending action.”).
8 It is cases like this one that delay the resolution of other cases, and that contribute to the Second Circuit's
dubious distinction as having (among the twelve circuits, including the D.C. Circuit) the longest median time
to disposition for prisoner civil rights cases, between 2000 and 2005 (9.8 months, as compared to a national
average of 5.7 months). Simply stated, I am unable to afford Plaintiff with further special solicitude without
impermissibly burdening the Court and unfairly tipping the scales of justice against Defendant.
9 Alvarez v. Simmons Market Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir.1988) [citations omitted].
10 Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.1996) [citations omitted].
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