Opinion
9:18-cv-01472
04-21-2022
TIMOTHY E. LANDO, JR., Plaintiff, v. STEVEN A. CLAUDIO, et al., Defendants.
TIMOTHY E. LANDO, JR. HON. LETITIA JAMES JONATHAN REINER, ESQ.
TIMOTHY E. LANDO, JR.
HON. LETITIA JAMES
JONATHAN REINER, ESQ.
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
This matter has been referred for a Report-Recommendation by the Hon. Thomas J. McAvoy, Senior U.S. District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Presently before the Court is Defendants' unopposed letter motion to dismiss this action for Plaintiff's (1) failure to prosecute, (2) failure to follow Court Orders and directives, and (3) failure to update his address. (Dkt. No. 114.) For the reasons set forth below, the Court recommends granting Defendants' motion.
I. PROCEEDINGS TO DATE
Plaintiff, a former inmate in the custody of the New York State Department of Corrections and Supervision (“DOCCS”), proceeding in forma pauperis, commenced this pro se prisoner civil rights action based upon 42 U.S.C. § 1983 by filing a complaint on December 20, 2018. (Dkt. Nos. 1, 7.) Thereafter, Plaintiff filed an amended complaint (Dkt. No. 55), and on March 31, 2021, the undersigned issued a Mandatory Pretrial Discovery and Scheduling Order, which set discovery and motion deadlines, and granted Defendants leave to conduct a deposition of Plaintiff. (Dkt. No. 78.) The second amended complaint, which was accepted for filing on October 22, 2021, is the operative pleading. (Dkt. No. 99.) Defendants answered on November 21, 2021. (Dkt. No. 104.) On November 2, 2021, Defendants served Plaintiff with a Notice of Deposition. (See Dkt. No. 105 at 3-7.)
On November 23, 2021, Defendants submitted a letter request for a court conference. Id. at 1-2. Counsel advised that Plaintiff failed to attend his deposition on November 23, 2021, and Plaintiff could not be reached by telephone. Id.
On December 1, 2021, the undersigned set a telephone status conference for December 17, 2021, and held the discovery deadlines in abeyance. (Dkt. No. 106.) The Court sent notice of the telephone status conference by regular mail to Plaintiff's address of record, id., but the notice was returned. (Dkt. No. 107.) The envelope was marked with a forwarding address of 23 Volney St, Apt 1, Phoenix NY 13135. See id. The notice of the telephone conference was remailed to Plaintiff at the forwarding address, together with a notice of a change of address form. Id. That notice was also returned with the envelope marked, “return to sender- not deliverable as addressed- unable to forward”. (Dkt. No. 108.)
The telephone conference was rescheduled to January 21, 2022. (Dkt. No. 109.) That notice was mailed to Plaintiff's address of record and to the forwarding address and Plaintiff was directed to advise the Court in writing of any change of address. Id. On December 20, 2021, the notice mailed to Plaintiff's address on file was returned as undeliverable with the envelope marked, “forward time exp - rtrn to sender- 23 Volney St, Apt 1, Phoenix NY”. (Dkt. No. 110.) Upon review of the docket, the notice mailed to the forwarding address was not returned.
Plaintiff failed to appear for the January 21, 2022, telephone conference and did not otherwise contact the Court. (See Text Minute Entry dated January 21, 2022.) On January 21, 2022, this Court issued the following Text Order to Show Cause:
Court held telephone conference on 1/21/2022, however, plaintiff did not appear despite notice of the conference being sent to him at two different addresses. (See Dkt. No. 109.) Plaintiff's last communication with the Court, which notified the Court of his new address among other things, was received on 10/15/2021 (Dkt. No. 95), however the Court has not had any further communication from Plaintiff since then. Mail sent to the address on the docket for plaintiff and as set forth in Dkt. No. 95 has been returned as undeliverable. (See Dkt. Nos. 95, 107, 110.) Plaintiff also failed to appear for his duly noticed deposition. (Dkt. No. 105.) Therefore, the Court hereby Orders plaintiff to show cause, by 2/22/2022, why this action should not be dismissed for failure to prosecute, failure to follow Court Orders and directives, and failure to file a notice of change of address as required by Local Rules. Plaintiff's failure to show cause may result in sanctions including, but not limited to, dismissal of the action for failure to prosecute, failure to follow Court Orders and directives, and failure to file a notice of change of address. The deadlines of all discovery and filing of dispositive motions continue to be held in abeyance. The Clerk is directed to send a copy of this Text Order to the address on the docket for Plaintiff as well as the address indicated by the Post Office on a return envelope.
(Dkt. No. 111.) As directed, a copy of the Order to Show Cause was mailed to Plaintiff's address on file and to the forwarding address. Id. Both mailings were returned to the Court as undeliverable. (Dkt. No. 112, 113.)
On February 23, 2022, Defendants filed the pending motion to dismiss. (Dkt. No. 114.) Plaintiff was afforded until March 19, 2022, to file a response to the motion to dismiss. (Text Notice dated February 23, 2022.) The notice was mailed to Plaintiff's address on file and the forwarding address, id., both of which were returned as undeliverable on March 7, 2022. (Dkt. Nos. 115, 116.) To date, Plaintiff has not responded to Defendants' motion to dismiss, nor has he engaged in any activity or communication with the Court since filing a change of address on October 15, 2021. (Dkt. No. 95.)
Plaintiff's letter indicated the address on file would be effective October 18, 2021. (Dkt. No. 95.) On October 18, 2021, Plaintiff was discharged from custody, following the maximum expiration of his sentence. See http://nysdoccslookup.doccs.ny.gov (DIN 06-A-5781) (last visited Apr. 19, 2022). According to Defendants, the New York State Sex Offender Registry reflects that Plaintiff resided at the address on file with the Court. (See Dkt. No. 114 at 2.) However, Plaintiff is not at the address of which he last apprised the Court-where he has a legal obligation to reside. Id. (citing N.Y. Corr. L. Art. 168.)
II. MOTION TO DISMISS FOR FAILURE TO PROSECUTE
Rule 41 of the Federal Rules of Civil Procedure states that, “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claims against it.” Fed.R.Civ.P. 41(b). The term “these rules” refers not only to the Federal Rules of Civil Procedure but also to the local rules of practice for a district court. See Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006). “A dismissal under this subdivision . . . operates as an adjudication on the merits.” Id. The Second Circuit has emphasized that “dismissal for failure to prosecute is a ‘harsh remedy to be utilized only in extreme situations.'” U.S. ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 254 (2d Cir. 2004) (quoting Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)). A court analyzing a motion to dismiss for failure to prosecute must weigh the following five factors:
Local Rule 10.1(c)(2) states that “all attorneys of record and pro se litigants must immediately notify the court of any change of address,” and requires parties to file the notice of change with the Clerk and serve all other parties to the action. L.R. 10.1(c)(2). In turn, Local Rule 41.2(b) provides that “failure to notify the Court of a change of address in accordance with Rule 10.1(c)(2) may result in the dismissal of any pending action.” L.R. 41.2(b).
(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.Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citations omitted). No singular factor is dispositive. Nita v. Connecticut Dep't of Environmental Protection, 16 F.3d 482, 485 (2d Cir. 1994). The Court addresses these factors in turn.
As to the duration of Plaintiff's failure to comply, Plaintiff's last communication with the Court was with the filing of a notice of change of address on October 15, 2021, more than six months ago. (Dkt. No. 95.) The Court notes that Local Rule 41.2(a) states that “the plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution.” L.R. 41.2(a); see also Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 666 (2d Cir. 1980) (affirming dismissal where plaintiffs took no steps to move case toward trial during a six-month period). Thus, the first factor weighs in favor of dismissal.
Second, as to whether Plaintiff was on notice, this factor also weighs in favor of dismissal. Plaintiff was placed on notice by the Court that his failure to provide an adequate address “will result in the dismissal of his action[.]” (Dkt. No. 7 at 14-15.) Plaintiff demonstrated that he understood this requirement and its importance when he updated his address with the Court on six occasions. (See Dkt. Nos. 6, 65, 67, 70, 74, 95.) As detailed above, since December of 2021, all mailings to his address on file have been returned to the Court as undeliverable. (See Dkt. No. 107, 110, 113, 116.)
Additionally, Plaintiff was advised that failure to attend his deposition could result in dismissal of the action. (See Dkt. No. 78 at 5.) Plaintiff has also failed to communicate requested information to the Court regarding this action when explicitly directed to do so and was warned that his failure to show cause may result in sanctions including dismissal of the action for failure to prosecute, failure to follow Court Orders and directives, and failure to file a notice of change of address. (See Dkt. No. 111.) See also Nolan v. Primagency, Inc., No. 07 Civ. 134, 2008 U.S. Dist. LEXIS 31268, at *10, 2008 WL 1758644, at *3 (S.D.N.Y. Apr. 16, 2008) (“The Second Circuit has held that where a court puts a plaintiff on notice that the court is considering dismissal, and a plaintiff fails to file a document explaining the failures and outlining why the action should not be dismissed, this element has been met.”) (citing Shannon v. General Elec. Co., 186 F.3d 186, 194-95 (2d Cir. 1999)). Thus, Plaintiff was on notice that failure to follow Court orders or otherwise participate in this action could result in dismissal.
With respect to prejudice, this action has been pending for more than three years and very little progress, if any, has been made due to Plaintiff's lack of communication and failure to appear for his deposition. Thus, this factor weighs in favor of dismissal. See Antonios A. Alevizopoulos & Assocs., Inc. v. Comcast Int'l Holdings, Inc., No. 99-CV-9311, 2000 WL 1677984, at *3 (S.D.N.Y. Nov. 8, 2000) (finding that the inability to depose the plaintiff “makes it difficult, if not impossible [for the defendants] to defend the lawsuit” and weighs in favor of Rule 41(b) dismissal); see also Georgiadis v. The First Boston Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) (“The passage of time always threatens difficulty as memories fade.”); Caussade v. U.S., 293 F.R.D. 625, 630 (S.D.N.Y. 2013) (“Where a Plaintiff has become inaccessible for months at a time, courts presume prejudice.”) (citations omitted).
The fourth factor addresses the balance between the Court's interest in functioning efficiently, and Plaintiff's interest in having an opportunity to be heard. See Lucas, 84 F.3d at 535 (internal citations omitted). Given the age of this case, the undersigned concludes that “[p]laintiff's continu[ed] failure to comply with court orders [or] participate in discovery has significantly delayed the resolution of this matter, thereby contributing to the Court's congestion.” Perez v. Wallace, No. 1:15-CV-240 (GTS/CFH), 2016 WL 2865737, at *3 (N.D.N.Y. Apr. 11, 2016). Thus, this factor also weighs in favor of dismissal.
Finally, the Court must consider whether a lesser sanction than dismissal would be appropriate. See Lucas, 84 F.3d at 535 (internal citations omitted). The undersigned is cognizant of Plaintiff's pro se status; however, sanctions less extreme than dismissal will not be effective in this case. See, e.g., Flynn v. Ward, 9:15-CV-1028 (BKS/CFH), 2019 WL 2085986, at *2 (N.D.N.Y. May 13, 2019) (noting that lesser sanctions 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 [the] [p]laintiff.”).
Mindful of the principles of law set forth herein, the undersigned determines that dismissal is appropriate. Plaintiff's failure to communicate with Defendants and the Court since October 15, 2021, establishes his intent to abandon this action. Moreover, his complete inactivity and disregard of the Court's notices and orders demonstrates that there is no meaningful way to secure Plaintiff's appearance before the Court to litigate this action. See McKnight v. J. Ferrick, et al., No. 9:16-CV-0957 (TJM/DEP), 2017 WL 3172794, at *3 (N.D.N.Y. June 30, 2017) (“[P]laintiff'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.”). Here, given Plaintiff's apparent abandonment and his ongoing refusal to comply, despite being warned of the consequences, the undersigned finds that imposition of any lesser sanction would not motivate Plaintiff to litigate this action. As such, this factor weighs in favor of dismissal.
Notwithstanding, considering Plaintiff's pro se status, it is recommended that the dismissal of the action be without prejudice. See Cintron v. Gottman, No. 9:15-CV-0542 (BKS/TWD), 2017 WL 2303604, at *4 (N.D.N.Y. May 1, 2017) (recommending dismissal of the plaintiff's action be without prejudice for failure to appear for two scheduled depositions); Perkins v. Rock, No. 9:12-CV-0459 (LEK/RFT), 2014 WL 4988224, at *4 (N.D.N.Y. Oct. 7, 2014) (recommending dismissal of the plaintiff's action for failure to prosecute be without prejudice); Jones v. Hawthorne, No. 9:12-CV-1745 (GTS/RFT), 2014 WL 2533166, at *3 (N.D.N.Y. June 5, 2014) (same).
WHEREFORE, for the reasons stated herein, it is hereby
RECOMMENDED that Defendants' letter motion (Dkt. No. 114) requesting dismissal of this action for Plaintiff's failure to prosecute, failure to follow Court Orders and directives, and failure to update his address be GRANTED; and it is further
RECOMMENDED that Plaintiff's second amended complaint (Dkt. No. 99) be DISMISSED WITHOUT PREJUDICE; and it is further
ORDERED that the Clerk of the Court serve a copy of this Report-Recommendation and Order on all parties in accordance with the Local Rules, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam), and it is further
ORDERED that the Clerk of the Court mail a courtesy copy of this ReportRecommendation and Order to Plaintiff at the forwarding address provided by the U.S. Postal Service.
Pursuant to 28 U.S.C. § 636(b)(1), 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).