Opinion
21 Civ. 8503 (KMK) (AEK)
01-10-2023
LAVIE LANG, Plaintiff, v. TOWN OF SOMERS, et al., Defendants.
HONORABLE KENNETH M. KARAS, U.S.D.J.
AMENDED REPORT AND RECOMMENDATION
ANDREW E. KRAUSE UNITED STATES MAGISTRATE JUDGE
Plaintiff Lavie Lang, proceeding pro se, brings this action asserting claims pursuant to 42 U.S.C. § 1983 for excessive force, false arrest, and deprivation of his right to equal protection under the law in violation of the Fourth and Fourteenth Amendments to the United States Constitution, as well as various state law claims. See ECF No. 1-1 (Complaint). Currently before the Court is Defendants' motion to dismiss for failure to prosecute. ECF No. 32. For the reasons that follow, I respectfully recommend that the motion be GRANTED, and that the action be dismissed with prejudice.
BACKGROUND
Plaintiff, proceeding through counsel, commenced this action in New York State Supreme Court (Westchester County) on August 5, 2021; on October 15, 2021, Defendants removed this matter to federal court. See ECF No. 1 (Notice of Removal).
On April 19, 2022, Your Honor referred the case to the undersigned for general pretrial supervision, ECF No. 10, and on that same date, the undersigned issued a scheduling order for a status conference to take place on June 27, 2022, ECF No. 13. Plaintiff's counsel appeared at the conference on June 27, as well as subsequent conferences held on August 9, and September 8, 2022. Docket Sheet, Minute Entries dated 6/27/2022, 8/9/2022, 9/8/2022.
Among other things, these conferences addressed Plaintiff's deficiencies in moving forward with his discovery obligations. At the June 27, 2022 conference, Plaintiff's counsel revealed that he had failed to comply with the deadlines in the operative scheduling order for service of Rule 26(a)(1) disclosures by May 3, 2022 and service of initial requests for production and interrogatories by May 19, 2022. See ECF No. 9. At the August 9, 2022 conference, Plaintiff's counsel acknowledged that Plaintiff had not provided responses to Defendants' outstanding discovery demands, even though such responses were long overdue. While this Court provided Plaintiff's counsel with a further extension-until August 12, 2022-Plaintiff did not respond to the document demands by that deadline either. See ECF No. 17 at 2; ECF No. 34 at 2.
At the September 8, 2022 conference, Plaintiff's counsel, citing personal health issues, stated his intention to file a motion to withdraw; that motion was filed on September 15, 2022. See Docket Sheet, Minute Entry dated 9/8/2022; ECF No. 19. On September 19, 2022, this Court issued an Order granting the motion to withdraw. ECF No. 21. The Order scheduled a telephonic conference for October 26, 2022, and specified that
[i]f Mr. Lang is able to retain a new attorney before that conference, the new attorney must appear at that conference by telephone and be prepared to discuss the next steps in this matter. Because of the delays that have plagued this case, Mr. Lang is hereby ordered to appear by telephone at this conference with his new attorney if he is in fact able to retain counsel. If Mr. Lang is not able to retain a new attorney before the October 26, 2022 conference, Mr. Lang must appear at the conference by telephone to represent himself pro se, and must be prepared to discuss how he wishes to proceed in this case.Id. This Court ordered Plaintiff's former counsel and Defendants' counsel to send a copy of the September 19, 2022 Order to Plaintiff by email or U.S. mail and “promptly confirm by letter filed on ECF that they have done so.” Id. at 2 (bold in original). On October 13, 2022, Defendants' counsel filed a letter evidencing that he had sent the Court's Order to Plaintiff by both email and U.S. mail. ECF No. 22.
Although Defendants appeared through counsel at the October 26, 2022 conference, Plaintiff failed to appear, either through counsel or pro se. Counsel for Defendants reported that he had not had any communication with Plaintiff. The Court rescheduled the status conference to November 10, 2022 to give Plaintiff a further opportunity to appear, and issued a scheduling order setting the new conference date. ECF No. 23. The scheduling order for the November 10 conference stated that “[o]nce again, Plaintiff is advised that if he is able to retain a new attorney before the conference, the new attorney must appear at that conference by telephone and be prepared to discuss the next steps in this matter. If Plaintiff is not able to retain a new attorney before the November 10, 2022 conference, then Plaintiff must appear at the conference by telephone to represent himself pro se, and must be prepared to discuss how he wishes to proceed in this case.” Id. at 1-2. Plaintiff has never provided the Court with a mailing address, telephone number, or email address. Nevertheless, at the request of this Court, the Clerk of Court mailed a copy of the scheduling order to Plaintiff at the address that previously had been used by Defendants' counsel to transmit a copy of the September 19, 2022 order. See Docket Sheet, entry for 10/27/2022. The Court also directed Defendants' counsel to send a copy of the scheduling order to Plaintiff, and on October 27, 2022, Defendants' counsel filed a letter evidencing that he had sent the scheduling order to Plaintiff by both email and U.S. mail. ECF No. 24.
Notably, this address appears in the Complaint, where it is referenced repeatedly as the approximate location where Defendants allegedly violated Plaintiff's constitutional rights. See Compl. ¶¶ 10, 16, 18, 20. The Docket Sheet reflects that the order was mailed to Plaintiff by the Clerk of Court on October 27, 2022.
Defendants' counsel reported at the October 26, 2022 conference that he had been provided with two email addresses for Plaintiff by Plaintiff's former counsel, but that at this point in time, in appeared as though only one of those email addresses was working. Therefore, while Defendants' counsel had emailed the scheduling order for the October 26 conference to both email addresses, he emailed the scheduling order for the November 10 conference only to the email address for Plaintiff that had worked previously. See ECF No. 24.
On October 27, 2022, counsel for Defendants filed a letter motion requesting an extension of the discovery deadlines set forth in the operative case management plan, and further requesting that the post-discovery conference in this matter be adjourned sine die. ECF No. 25. Your Honor granted the motion and stayed discovery that same day, and stated in the memo endorsement that “[i] Mr. Lang continues to not show up or participate, he may be opening himself up to a dismissal for failure to prosecute.” ECF No. 26. Your Honor directed Defendants' counsel to mail a copy of the memo endorsed letter to Plaintiff, which counsel did on October 28, 2022. See id & ECF No. 27.
Although Defendants appeared through counsel at the November 10, 2022 conference, Plaintiff again failed to appear either through counsel or pro se. Neither this Court nor counsel for Defendants had been contacted by either Plaintiff or a new attorney on Plaintiff's behalf in advance of the conference. Accordingly, this Court issued another scheduling order, setting a new conference for November 29, 2022. ECF No. 28. The scheduling order for the November 29 conference reiterated the warning provided by Your Honor in the October 27, 2022 memo endorsement regarding the possibility of a dismissal for failure to prosecute if Plaintiff continued to not show up or participate. The scheduling order also stated that “for a third time, Plaintiff is advised that if he is able to retain a new attorney before the conference, the new attorney must appear at that conference by telephone and be prepared to discuss the next steps in this matter. If Plaintiff is not able to retain a new attorney before the November 29, 2022 conference, then Plaintiff must appear at the conference by telephone to represent himself pro se, and must be prepared to discuss how he wishes to proceed in this case.” Id. at 2. Lastly, the scheduling order warned that “[t]o date, Plaintiff has neither communicated with, nor provided updated contact information to, the Court. Therefore, in light of Plaintiff's failure to appear at both the October 26 and November 10 conferences, and his failure to provide the Court with up-to-date contact information, Plaintiff is notified that his failure to appear at the November 29, 2022 conference will result in the Court granting Defendants permission to make a motion to dismiss the action for failure to prosecute.” Id. (bold in original). On November 15, 2022, Defendants' counsel filed a letter evidencing that he had sent the Court's scheduling order to Plaintiff by both email and Federal Express. ECF No. 29. The email “bounced back as undeliverable.” Id. at 1.
The Docket Sheet reflects that the scheduling order for the November 10 conference (ECF No. 23) was returned to the Court as “Not Deliverable As Addressed Unable To Forward.” Docket Sheet, entry dated 11/10/2022. The Court and Defendants' counsel had been mailing the orders to Plaintiff at 36 Granite Springs Road, Somers, New York 10589; in the course of attempting to serve the various orders, Defendants' counsel determined that the appropriate address to use was 36 Granite Springs Road, Granite Springs, New York 10527. (The Complaint refers to “36 Granite Springs Road, Town of Somers, County of Westchester, State of New York. Granite Springs, however, is a hamlet within the Town of Somers.) Defendants' counsel's Federal Express mailing regarding the November 29, 2022 conference was sent to the Granite Springs address, and was successfully delivered. See ECF No. 29 at 5. All orders and papers mailed to Plaintiff after November 10, 2022 have been sent to the Granite Springs address, and there is no indication on the docket that any order mailed by the Court to Plaintiff at the Granite Springs address has been returned as undeliverable.
Although Defendants appeared through counsel at the November 29, 2022 conference, Plaintiff failed to appear, either through counsel or pro se. Because Plaintiff had “neither communicated with, nor provided updated contact information to, either Defendants or the Court,” this Court, in accordance with its prior order, granted Defendants permission to file a motion to dismiss the action for failure to prosecute, and set a schedule for the filing and service of that motion. ECF No. 30; see Docket Sheet, Minute Entry dated 11/29/2022. According to the scheduling order issued by the Court, Defendants' motion was to be served and filed by December 13, 2022; Plaintiff's opposition papers were to be served and filed by January 3, 2023; and a conference was scheduled for January 6, 2023. ECF No. 30. The scheduling order was mailed to Plaintiff on November 30, 2022 at 36 Granite Springs Road, Granite Springs, New York 10527. See Docket Sheet, entry for 11/30/2022. On December 6, 2022, Defendants' counsel filed a letter evidencing that he had sent the Court's scheduling order to Plaintiff by both email and U.S. mail. See ECF No. 31.
In the scheduling order for the January 6, 2023 conference, this Court directed Defendants' counsel “to attempt to email a copy of this Order to the pro se Plaintiff using the two email addresses that he has used previously, even though counsel's most recent attempts to use those email addresses have not been successful.” ECF No. 30.
On December 13, 2022, Defendants filed their motion to dismiss for failure to prosecute, and served the motion on Plaintiff at both his last-known address and one of his email addresses. ECF Nos. 32-35.Plaintiff did not file any opposition papers by the January 3, 2023 deadline.
Your Honor issued an amended order of reference on December 15, 2022, referring this matter to the undersigned for a Report and Recommendation on a dispositive motion. ECF No. 36.
Plaintiff again failed to appear at the conference held on January 6, 2023. Defendants' counsel, who appeared at the conference, reported that he had not heard from Plaintiff. To date, Plaintiff has neither filed anything in response to the motion nor contacted the Court.
DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure provides that a defendant may move to dismiss an action “[i]f the plaintiff fails to prosecute ....” Fed.R.Civ.P. 41(b). Thus, under Rule 41(b), a plaintiff is required to diligently prosecute his or her case. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). Dismissal pursuant to Rule 41(b) is a “harsh remedy that should be utilized only in extreme situations,” Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009) (quotation marks omitted), and “[t]he standard is heightened in cases of pro se litigants,” Murray v. Bouck, No. 19-cv-317 (MKV), 2020 WL 6381935, at *1 (S.D.N.Y. Oct. 30, 2020) (citing Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). Nevertheless, “the authority to invoke [Rule 41(b)] for failure to prosecute is vital to the efficient administration of judicial affairs and provides meaningful access for other prospective litigants to overcrowded courts.” Lyell Theatre Corp., 682 F.2d at 42.
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) and Local Civil Rule 7.2 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, copies of this case and other cases that are unpublished or only available by electronic database are being simultaneously mailed to the pro se Plaintiff along with this Report and Recommendation.
The Second Circuit has set forth five factors that it uses to review whether a court has properly dismissed a case for failure to prosecute:
whether (1) the plaintiff's failure to prosecute caused a delay of significant duration; (2) plaintiff was given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser sanctions.Lewis, 564 F.3d at 576 (quoting United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004)). In this case, each of the five factors warrants dismissal of Plaintiff's case against Defendants.
A. Delay of Significant Duration
Plaintiff has neglected to prosecute this case since at least the end of October 2022. “There is no fixed period of time that must elapse before a plaintiff's failure to prosecute becomes substantial enough to warrant dismissal.” Caussade v. United States, 293 F.R.D. 625, 629 (S.D.N.Y. 2013). “Delays of several months have been found to warrant dismissal.” Id. (citing cases). “Courts have found dismissal appropriate for even shorter delays when a party has become completely inaccessible, as inaccessibility strongly suggests that [plaintiff] is not diligently pursuing [his or her] claim.” Id. at 630 (quotation marks omitted). Since Plaintiff's counsel's motion to withdraw was granted on September 19, 2022, Plaintiff has failed to appear for multiple conferences and has entirely prevented progress in discovery. Prior to the withdrawal of Plaintiff's counsel, Defendants raised issues with Plaintiff's discovery responses-in particular, the failure to provide written responses to Defendants' document requests-and these issues have yet to be resolved. In addition, Plaintiff has still not been deposed-though Plaintiff's failure to appear for his noticed deposition was due to his former counsel's oversight. See ECF No. 17; see also Docket Sheet, Minute Entry dated 9/8/2022 (Plaintiff was to serve both his supplemental document production and his written responses to Defendants' document requests by 9/15/2022, the same date on which Plaintiff's counsel filed his motion to withdraw); ECF No. 22 (October 13, 2022 letter from Defendants' counsel to Plaintiff, informing Plaintiff that his former counsel had not provided written responses to Defendants' request for documents dated May 19, 2022). Accordingly, the duration of the delay weighs in favor of dismissal.
B. Notice that Further Delays Would Result in Dismissal
Your Honor notified Plaintiff in the October 27, 2022 order granting a stay of discovery that if Plaintiff “continues to not show up or participate, he may be opening himself up to a dismissal for failure to prosecute.” ECF No. 26. Further, this Court notified Plaintiff in the scheduling order for the November 29, 2022 conference that Plaintiff's failure to appear “will result in the Court granting Defendants permission to make a motion to dismiss the action for failure to prosecute.” ECF No. 28 (bold in original). This Court also notified Plaintiff of both the briefing schedule for the motion to dismiss for failure to prosecute and the January 6, 2023 conference. ECF No. 30. The order granting a stay of discovery was sent to Plaintiff by email and regular mail, ECF No. 27; the scheduling order for the November 29 conference was sent to Plaintiff by email (which bounced back as undeliverable) and Federal Express (which was successfully delivered), ECF No. 29; and the scheduling order for the January 6 conference was sent to Plaintiff by both regular mail and email, Docket Sheet, entry for 11/30/2022; ECF No. 31. “The severe sanction of dismissal with prejudice may be imposed even against a plaintiff who is proceeding pro se, so long as a warning has been given that noncompliance can result in dismissal.” Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994); see Hunter v. N.Y. State Dep't of Corr. Servs., 515 Fed.Appx. 40, 41-44 (2d Cir. 2013) (summary order) (affirming dismissal for failure to prosecute where pro se plaintiff, inter alia, failed to respond to correspondence from opposing counsel and a motion to dismiss for failure to prosecute); Smith v. Westchester Cnty., No. 19-cv-1283 (KMK), 2020 WL 883332, at *1-2 (S.D.N.Y. Feb. 24, 2020) (dismissing for failure to prosecute where Plaintiff failed to communicate with court for several months notwithstanding court making clear that failure to respond would result in dismissal).
Moreover, it is Plaintiff's responsibility to inform the Court of any changes in his address. See Brown v. Smith, No. 13-cv-4694 (AT), 2014 WL 5040908, at *2 (S.D.N.Y. Sept. 30, 2014) (collecting cases). Given that Plaintiff has not communicated with the Court to provide any updated contact information, “any attempt to further warn [P]laintiff[] of [his] responsibilities and the consequences of [his] continued failure to prosecute this action would be futile.” Lukensow v. Harley Cars of New York, 124 F.R.D. 64, 66 (S.D.N.Y. 1989). “The Court notes that any inability to receive actual notice of the proceedings was of [P]laintiff['s] own doing.” Id.
C. Prejudice to Defendants Resulting from Further Delays
“With regard to possible prejudice to defendants by virtue of further delay, a failure to dismiss would likely leave the case pending for an indefinite time into the future, or at least until [P]laintiff changed [his] mind or the court lost patience. Accordingly, we may infer the likelihood of some prejudice if the motion were not granted.” Wilson v. Oxford Health Plans (N.Y.), Inc., No. 01-cv-3417 (MHD), 2002 WL 1770813, at *3 (S.D.N.Y. July 31, 2002); see also Peart v. City of New York, 992 F.2d 458, 462 (2d Cir. 1993) (“prejudice resulting from unreasonable delay may be presumed as a matter of law”). Moreover, “[w]here a plaintiff has become inaccessible for months at a time, courts presume prejudice.” Caussade, 293 F.R.D. at 630. Defendants have also been prejudiced by Plaintiff's failure to prosecute this case due to “the passage of time,” given that the case is based on events which occurred over four years ago, on August 7, 2018. See Complaint; Edwards v. Horn, No. 10-cv-6194 (RJS) (JLC), 2012 WL 1292672, at *2 (S.D.N.Y. Apr. 13, 2012) (finding that defendant had been prejudiced by plaintiff's “failure to prosecute this action by the passage of time, given that the incident giving rise to the claim . . . occurred . . . more than four years ago . . . and as a matter of law prejudice is presumed.”), adopted by, 2012 WL 1592196 (S.D.N.Y. May 4, 2012). For all of these reasons, the “prejudice to defendants” factor weighs in favor of dismissal.
D. Balance Between Calendar Congestion and the Opportunity to Be Heard
Given the age of this case and the length of time that it has remained inactive due to Plaintiff's failure to appear at conferences or progress with discovery, the Court's interest in reducing docket congestion and freeing up limited judicial resources to allow other cases to proceed outweighs the need to give Plaintiff more time to be heard in the matter. See Lukensow, 124 F.R.D. at 67 (“[T]here can be no assertion by plaintiffs that the dismissal of this action denies them their right to due process and a fair opportunity to be heard. The fact is that this dismissal results from plaintiffs' own conduct. The result could have been avoided by pressing their claim in the adversary proceeding.”); see also Feurtado v. City of New York, 225 F.R.D. 474, 480 (S.D.N.Y. 2004) (“[F]airness to other litigants, whether in the same case or merely in the same court as competitors for scarce judicial resources may require a district court to dismiss a case pursuant to Rule 41(b).”) (quotation marks omitted).
E. Consideration of Lesser Sanctions
In light of Plaintiff's continued failure to proceed with this case, and his failure to communicate with Defendants' counsel or the Court, the sanction of dismissal with prejudice is appropriate. See, e.g., Hardimon v. Westchester Cnty., No. 13-cv-1249 (PKC) (MHD), 2014 WL 2039116, at *2 (S.D.N.Y. May 16, 2014) (“In light of the express warning of dismissal, there is no reason to believe that a lesser sanction would be effective.”); Edwards, 2012 WL 1292672, at *2 (“[Plaintiff's] failure to prosecute and his most recent failures to appear at court-ordered conferences demonstrate that any lesser sanction would be an exercise in futility[.]”) (quotation marks omitted). Where, as here, Plaintiff's “noncompliance strongly suggests abandonment of the action,” dismissal of the action is the appropriate sanction. Hardimon, 2014 WL 2039116, at *2; Lukensow, 124 F.R.D. at 67 (“In the case at bar, no sanction other than dismissal will suffice. Plaintiffs cannot be contacted by this Court and, therefore, any lesser sanction would be both unenforceable and ineffective in this abandoned action.”). Because Plaintiff has not provided any method for the Court to contact him regarding this matter, he cannot be given notice of any sanction less than dismissal.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendants' motion to dismiss for failure to prosecute (ECF No. 32) be GRANTED, and that Plaintiff's action be dismissed with prejudice.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made by mail). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kenneth M. Karas, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Karas, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).