Opinion
9:23-cv-00081 (DNH/TWD)
10-26-2023
JOSEPH GUARNERI, Plaintiff, v. M.D. HASSETT, Defendant.
JOSEPH GUARNERI Plaintiff, pro se (Last Known Address) BARCLAY DAMON LLP Attorneys for Defendant PAUL A. SANDERS, ESQ.
JOSEPH GUARNERI Plaintiff, pro se (Last Known Address)
BARCLAY DAMON LLP Attorneys for Defendant
PAUL A. SANDERS, ESQ.
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This matter has been referred for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Pending before the Court, in this civil rights action filed by pro se plaintiff Joseph Guarneri (“Plaintiff”) against defendant Stephen G. Hassett, M.D., named as M.D. Hassett, (“Defendant”), is Defendant's motion to dismiss for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure (“Rule 41(b)”). (Dkt. No. 23.) For the following reasons, the Court recommends dismissing the amended complaint without prejudice for failure to prosecute.
II. BACKGROUND
Plaintiff, previously confined at the Schoharie County Correctional Facility (“Schoharie County C.F.”) as a pretrial detainee, and whose address is not currently known to the Court, commenced this action on January 20, 2023, by filing a complaint accompanied by an application to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.) On January 23, 2023, the Court administratively closed the case for Plaintiff's failure to comply with the filing fee requirement. (Dkt. No. 3.) The Court ordered Plaintiff to either pay the filing fee or submit a completed and signed IFP application, and to submit a completed and signed inmate authorization form if he wished to proceed with the case. Id. On February 23, 2023, Plaintiff filed an amended complaint. (Dkt. No. 6.) On March 8, 2023, Plaintiff filed the required inmate authorization form, and the action was reopened and restored to the Court's active docket. (Dkt. Nos. 8, 9.)
On April 3, 2023, the Court granted Plaintiff permission to proceed IFP and reviewed the sufficiency of the amended complaint in accordance with 28 U.S.C. §§ 1915(e) and 1915A. (Dkt. No. 11.) On the basis of that review, only Plaintiff's Fourteenth Amendment deliberate medical difference claims against Defendant M.D. Hassett required a response. Id. The Order also included the following caution, “Plaintiff is also required to promptly notify the Clerk's Office and all parties or their counsel, in writing, of any change in his address; their failure to do so will result in the dismissal of his action[.]” Id. at 20 (emphasis in original).
Because Plaintiff filed the amended complaint before the Court conducted an initial review, the amended complaint was deemed the operative pleading, superseding the original complaint. (Dkt. No. 11 at 2 n.2.)
On May 25, 2023, Defendant filed an answer. (Dkt. No. 17.) The same day, the Court issued a mandatory pretrial scheduling order which, inter alia, cautioned Plaintiff that “failure . . . to attend, be sworn, and answer appropriate questions [at a properly noticed deposition] may result in sanctions, including dismissal of the action pursuant to Fed.R.Civ.P. 37.” (Dkt. No. 19 at 5.) By letter dated June 8, 2023, Defendant served Plaintiff with more than 500 pages of discovery. (Dkt. Nos. 20, 21.) Defendant also served Plaintiff with a Notice of Deposition Upon Oral Examination. (Dkt. No. 23-1 at ¶ 8.)
On June 9, 2023, the Clerk received as undeliverable the scheduling order, which was sent to Plaintiff at Schoharie County C.F., the address on file. (Dkt. No. 22.) The envelope was marked “return to sender” along with “undeliverable as addressed” and “unable to forward.” Id.
On June 23, 2023, Defendant sent Plaintiff an amended Notice of Deposition indicating Plaintiff's deposition would take place on July 10, 2023, at 10:00 a.m., at the offices of Barclay Damon, LLP, located at 80 State Street in Albany, New York. (Dkt. No. 22-1 at ¶ 11.)
On July 10, 2023, Defendant's counsel appeared for the deposition of Plaintiff. Id. at ¶ 14. Plaintiff did not appear nor advise he would be unable to attend. Id. Defendant was invoiced $578.00 for the deposition. Id. at ¶ 15.
As detailed in the Attorney Declaration submitted in support of Defendant's motion, all the mailings sent to Plaintiff at Schoharie County C.F. have been returned to Defendant as undeliverable. Id. at ¶¶ 10, 12, 13. On July 25, 2023, in an effort to locate Plaintiff's current address, Defendant performed a SmartLinx Person Report on Plaintiff (“SmartLinx Report”). Id. at ¶ 16. The SmartLinx Report did not result in a discovery of a current address for Plaintiff. Id.
Subsequently, on August 15, 2023, Defendant filed the instant motion to dismiss for failure to prosecute. (Dkt. No. 23.) Plaintiff's response to the motion was due September 5, 2023. (08/15/2023 Text Re-Notice.) On August 18, 2023, Defendant's motion papers, which were mailed to Plaintiff at Schoharie County C.F., were returned to Defendant as undeliverable. (Dkt. No. 29.)
By Text Order issued September 11, 2023, the Court sua sponte granted Plaintiff a 30-day extension of time to respond to Defendant's motion. (Dkt. No. 27.) The Text Order was sent to Plaintiff at his address on file, Schoharie County C.F., but it was also returned as undeliverable and marked “return to sender” and “no longer here.” (Dkt. No. 28.)
The Court's extended deadline to respond to the motion to dismiss has passed without any filing from Plaintiff. See Docket Report. Plaintiff has not contacted the Court with a current address, nor has he otherwise communicated with the Clerk regarding this action. Id. On October 17, 2023, Defendant filed a letter motion in further support of the Rule 41(b) motion to dismiss this action with prejudice for failure to prosecute. (Dkt. No. 29.)
III. DISCUSSION
Rule 41(b) provides a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute the case, or to comply with the procedural rules or orders of the court. Fed.R.Civ.P. 41(b); see Link v. Wabash R.R. Co., 370 U.S. 626 (1962); see also Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (per curiam). This power to dismiss may be exercised when necessary to achieve orderly and expeditious disposition of cases. See Freeman v. Lundrigan, No. 95-CV-1190, 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996).
Determining whether an action should be dismissed under Rule 41(b) involves the analysis of five factors:
(1) the duration of the plaintiff's failure to comply with the court order, (2) whether [the] 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.Lucas, 84 F.3d at 535 (citations omitted). “No one factor is dispositive[.]” U.S. ex. rel Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). “When imposed, the sanction of dismissal ‘operates as an adjudication upon the merits,' but may be without prejudice if so specified by the court imposing it.” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982) (quoting Fed.R.Civ.P. 41(b)).
Here, in recommending the dismissal of Plaintiff's amended complaint, the undersigned is cognizant that dismissal under Rule 41(b) is considered a harsh remedy, especially in an action brough by a pro se plaintiff. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001). However, Plaintiff has not taken any meaningful action to advance his case and has failed to timely communicate with the Court and Defendant. As such, the Court finds all five factors considered in deciding a Rule 41(b) motion favor dismissal.
In examining the first factor, duration, the Court considers two inquiries: (1) whether the delays associated with the failures to prosecute were those of the plaintiff, and (2) whether the duration of these delays existed for a significant period. Lynch v. Hanley, No. 1:21-CV-00025 (AMN/ML), 2023 WL 4763941, at *4 (N.D.N.Y. July 26, 2023). Plaintiff's last communication with the Court pertaining to this action was his filing of his inmate authorization form over eight months ago, on March 8, 2023. (Dkt. No. 8.) “Although there is no ‘magic number' to determine whether Plaintiff's delay endured for a significant period ....the Court notes that Northern District New York Local Rule 41.2(a) provides that ‘plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution.'” Id. (quoting L.R. 41.2). Indeed, courts have repeatedly dismissed cases because the plaintiff failed to prosecute for four months. See Phillips v. Proud, No. 5:16-CV-1140 (LEK/ATB), 2018 WL 5620416, at *2 (N.D.N.Y. Oct. 30, 2018) (collecting cases). As such, the delays in this case were caused by Plaintiff, and this factors weighs in favor of dismissal.
Regarding the second factor, notice, the Court warned Plaintiff the failure to notify the Court and Defendant of any change in his address would result in dismissal of his case. (Dkt. No. 20 at 11.) Plaintiff was also warned that “failure . . . to attend, be sworn, and answer appropriate questions [at a properly noticed deposition] may result in sanctions, including dismissal of the action pursuant to Fed.R.Civ.P. 37.” (Dkt. No. 19 at 5.) Thus, the second factor weighs in favor of dismissal.
As to the third factor, Defendant has been prejudiced as a result of Plaintiff's failure to adhere to Court Orders. See Lyell, 682 F.2d at 43 (“[P]rejudice to defendants resulting from unreasonable delay may be presumed”). “Where a plaintiff has become inaccessible for months at a time, courts presume prejudice.” Caussade v. United States, 293 F.R.D. 625, 630 (S.D.N.Y. 2013) (collecting cases) (citations omitted); Mayer v. Clinton Cty., No. 9:17-CV-905 (GLS/CFH), 2020 WL 5536800, at *5 (N.D.N.Y. Aug. 7, 2020); see, e.g., Hutcheon v. Farnum, No. 9:18-CV-00203 (MAD/CFH), 2019 WL 7971873, at *3 (N.D.N.Y. Nov. 4, 2019) (“[The] defendant has been prejudiced by [the] plaintiff's complete failure to participate in discovery.”), report and recommendation adopted, 2020 WL 90786 (N.D.N.Y. Jan. 8, 2020). Plaintiff is not only delaying the case itself, but also is hindering the ability of Defendant to proceed. See Shannon v. Gen. Elec. Co., 186 F.3d 186, 195 (2d Cir. 1999) (“[D]elay by one party increases the likelihood that evidence in support of the other party's position will be lost and that discovery and trial will be made more difficult.”). This factor therefore weighs in favor of dismissal.
As to the fourth factor, the Court finds that the Court's interest in managing the docket outweighs Plaintiff's interest in receiving further opportunity to be heard. See Lucas, 84 F.3d. at 535; see Perez v. Wallace, No. 1:15-CV-240 (GTS/CFH), 2016 WL 2865737, at *3 (N.D.N.Y. Apr. 11, 2016); see also Pena v. Zazzle Inc., 587 F.Supp.3d 109, 114 (S.D.N.Y. 2022) (citation omitted) (“Although [the plaintiff's] failure to prosecute is a ‘silent' failure,” as opposed to one that is “vexatious and burdensome[,]” “the Court has a strong interest in managing its docket and cannot indefinitely wait for [the plaintiff] to turn his attention to this case. Furthermore, his ‘failure to comply with the court's order or make an attempt to prosecute this case dismisses his right to have the court hear his claim.”). Thus, this factor also weighs in favor of dismissal.
As to the final factor, the Court finds the imposition of a lesser sanction would have no effect on Plaintiff, or this litigation, given Plaintiff's refusals to comply with Court Orders or the discovery process. See, e.g., Flynn v. Ward, No. 9:15-CV-1028 (BKS/CFH), 2019 WL 2085986, at *2 (N.D.N.Y. May 13, 2019) (noting lesser sanctions than dismissal were unlikely to be successful where the plaintiff did not update the Court with an address and the Court “currently has no way of contacting [him]”); see also Anthony v. Lyons, No. 9:18-CV-0849, 2021 WL 1701754 (GLS/CFH), at *5 (N.D.N.Y. Apr. 12, 2021) (“Dismissal has been found to be an ‘adequate remedy for failure to prosecute where a plaintiff cannot be contacted, because the plaintiff would be unaware of any lesser sanction that could be imposed.'”); McKnight v. J. Ferrick, No. 9:16-CV-0957 (TJM/DEP), 2017 WL 3172794, at *3 (N.D.N.Y. June 30, 2017) (“plaintiff's failure to communicate, which by now is nearly six months, weighs in favor of dismissal .... [a]lthough the length of plaintiff's delay to date is not exceedingly long, there is no indication of an end to his inactivity.”). As such, the fifth factor also weighs in favor of dismissal.
In sum, after careful consideration of the relevant factors, the Court concludes dismissal of Plaintiff's amended complaint is warranted under Rule 41(b). Nevertheless, considering Plaintiff's pro se status, the Court recommends dismissal of the amended complaint without prejudice. See Nelson v. VanHoesen, No. 9:20-CV-258 (GLS/CFH), 2022 WL 605741, at *4 (N.D.N.Y. Feb. 1, 2022) (recommending dismissal of the pro se plaintiff's complaint without prejudice for failure to prosecute where the plaintiff could not be reached at the address provided), report and recommendation adopted, 2022 WL 602651 (N.D.N.Y. Mar. 1, 2022); Jones v. Hawthorne, No. 9:12-CV-1745 (GTS/RFT), 2014 WL 2533166, at *2 (N.D.N.Y. June 5, 2014) (dismissing the pro se plaintiff's complaint without prejudice where the plaintiff had been released from DOCCS custody and failed to provide the Court with an updated address or communicate with the Court for ten months); Lynch v. Hanley, No. 1:21-CV-00025 (AMN/ML), 2023 WL 4763941, at *6 (N.D.N.Y. July 26, 2023) (dismissing complaint without prejudice so the plaintiff could bring the lawsuit “at another if and when he is prepared to diligently litigate it”).
Moreover, “[c]ourts have repeatedly recognized that dismissal for failure to prosecute is appropriate where a plaintiff effectively disappears by failing to provide a means by which he or she can be reached.” Christman v. Kalimulina, No. 21 CIV 7318, 2022 WL 17826119, at *2 (S.D.N.Y. Dec. 21, 2022) (collecting cases), report and recommendation adopted, 2023 WL 4841900 (S.D.N.Y. July 27, 2023). Dismissal is also warranted under the Local Rules. See L.R. 41(2)(a) (“Whenever it appears that the plaintiff has failed to prosecute an action or proceeding diligently, the assigned judge may order it dismissed.”); see also L.R. 41(2)(b) (“Failure to notify the Court of a change of address by counsel or pro se litigant within 14 days of a change in accordance with L.R. 10.1(c)(2) may result in the dismissal of any pending action.”).
WHEREFORE, for the reasons set forth herein, it is hereby
RECOMMENDED that Defendant's motion to dismiss for failure to prosecute (Dkt. Nos. 23, 29) be GRANTED and Plaintiff's amended complaint (Dkt. No. 6) be DISMISSED WITHOUT PREJUDICE; and it is further
ORDERED that the Clerk serve a copy of this Report-Recommendation and Order on Plaintiff at the address the Court has on file, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
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 (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (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.
If you are proceeding pro se and are 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 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).
IT IS SO ORDERED.
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