Opinion
Nos. 1:00-cv-05953-ENV-VVP, 1:02-cv-03900-ENV-VVP.
July 19, 2006
DECISION AND ORDER
Plaintiff Maurice Oparaji moves for relief from the judgment of May 15, 2006 entered against him pursuant to this Court's order of May 11, 2006, which had adopted the Report and Recommendation of Magistrate Judge Viktor V. Pohorelsky that the two instant actions be dismissed for want of prosecution. For the following reasons, plaintiff's motion for relief from the judgment is denied.
Facts and Procedural History
These actions arise out of plaintiff's dismissal from two teaching positions with the New York City Board of Education. Plaintiff brought the first action against the New York City Department of Education and Patricia Hagler-Singleton on October 3, 2000, No. 00 Civ. 05953, and the second solely against the New York City Department of Education on July 8, 2002, No. 02 Civ. 03900. The actions were consolidated for pre-trial purposes only on September 11, 2002 and for all purposes on February 7, 2006.
On September 28, 2005, Magistrate Judge Pohorelsky conducted a pre-trial conference in these actions, which were then pending for over three years. Plaintiff was physically present at the conference when the Magistrate Judge ordered that depositions and all other discovery be completed by March 10, 2006 and requests for pre-motion conferences regarding any dispositive motions be made by March 31, 2006. Critically, the Magistrate Judge further ordered that the next conference was to be conducted by telephone on January 13, 2006. Prior to the instant motion, the record reflects neither an objection by plaintiff nor any advice by plaintiff to the court of an inability to comply with the schedules set by Magistrate Judge Pohorelsky due to an absence from the jurisdiction or for any other reason.
After plaintiff's wife advised defendants' counsel that plaintiff was out of the country and would not appear for the depositions scheduled in early January, defendants' counsel requested that Magistrate Judge Pohorelsky adjourn the phone conference. The request was granted, and the phone conference was adjourned to February 7, 2006. When plaintiff failed to appear again, defendants' counsel advised that plaintiff had also failed to respond to any of the discovery requests. On February 21, 2006, with neither interposition of objection nor request for an adjournment, plaintiff failed to appear at his own deposition. Defendants' counsel then sought renewed judicial intervention.
Magistrate Judge Pohorelsky entered an order on March 22, 2006 scheduling a conference for April 6, 2006, and advising plaintiff that if he did not appear "the court will recommend that these actions be dismissed for want of prosecution." Despite this warning, plaintiff once more failed to appear on April 6, 2006. Prior to each scheduled event, the record reflects, the court and/or defendants' counsel gave required notice to plaintiff at the address provided by plaintiff. Indeed, defendants' notice went beyond what was required and included telephoning plaintiff's residence regarding scheduled appearances.
Upon a record of unexplained, much less excused, default by plaintiff, Magistrate Judge Pohorelsky issued a Report and Recommendation that these matters be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for want of prosecution. After careful review of the history of plaintiff's defaults and in the absence of any timely objection by plaintiff, this Court adopted the Report and Recommendation of the Magistrate Judge on May 11, 2006 and directed the Clerk of the Court to enter judgment dismissing both actions for want of prosecution. The Clerk did so on May 15, 2006.
It is well-established that a district court may, as here, exercise its discretion and even sua sponte dismiss an action for failure to prosecute. See Link v. Wabash Railroad Co., 370 U.S. 626, 629-30 (1962) ("The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts."); Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993); Gibbs v. Hawaiian Eugenia Corp., 966 F.2d 101, 109 (2d Cir. 1992); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42-43 (2d Cir. 1982).
Presumably by coincidence, plaintiff submitted a letter to the Magistrate Judge and the District Judge formerly assigned to these matters on May 15, 2006 styled as a response to the Magistrate's Report and Recommendation. Plaintiff then moved for relief from this Court's May 11, 2006 order, effectively the judgment of May 15, 2006, by notice of motion filed June 1, 2006.
Plaintiff is proceeding pro se, and the Court will "read the pleadings of a pro se liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Construing plaintiff's motion broadly and liberally to his benefit, it is most properly interpreted as a motion pursuant to Federal Rule of Civil Procedure 60 (b) for relief from the May 15, 2006 judgment, dismissing his lawsuits. Defendants submitted a letter in opposition to plaintiff's request on May 19, 2006 and formal opposition papers on June 21, 2006. Plaintiff replied on June 26, 2006. Defendants requested permission to file what would, in effect, have been a surreply on July 5, 2006. The Court denied the application. Plaintiff then filed a response to defendants' surreply on July 10, 2006. As the surreply was not before the Court, the Court did not consider the response either.
If the Court were to treat plaintiff's motion as one for reconsideration of its May 11, 2006 order, the motion would be time-barred under Federal Rule of Civil Procedure 59 (e) and Local Civil Rule 6.3. See also note 4, infra. The Court elects to consider plaintiff's motion as having been made pursuant to Federal Rule of Civil Procedure 60(b) and, therefore, is timely.
Discussion
Federal Rule of Civil Procedure 60 (b) allows the Court to
relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Only subsections (1) and (6) provide a colorable basis for relief here. "These provisions are mutually exclusive," Pioneer Investment Services Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 393 (1993), and, more importantly, the Court "may treat a motion to vacate a prior judgment as having been made under 60 (b)(6) only if the other, more specific grounds for relief encompassed by the rule are inapplicable." Maduakolam v. Columbia University, 866 F.2d 53, 55 (2d Cir. 1989). See also Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863 (1988); Klapprott v. United States, 335 U.S. 601, 613 (1949); Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986). In his motion, plaintiff asserts 1) that discovery was closed in both matters, 2) that he had responded to all of defendants' past discovery requests and appeared for every deposition, 3) that he informed defendants' counsel of his father's death and that he would be out of the country, 4) that he personally did not receive actual notice of the conferences after that of September 2005 since he was not present at his residence where the notices were sent, and 5) that he had, in fact, traveled to Nigeria due to his father's death at the end of October 2005 as he had advised defendants' counsel he would. Plainly, as plaintiff's arguments go toward "excusable neglect" under Federal Rule of Civil Procedure 60(b)(1), he cannot seek relief under Federal Rule of Civil Procedure 60 (b)(6). Case law on the (b) (1) ground is, therefore, controlling on this motion.
Federal Rule of Civil Procedure 60(b)(1), to say the least, is not a cure for all ills. "To grant relief from a final order pursuant to Rule 60 (b), a court must find that (1) the circumstances of the case present grounds justifying relief and (2) the movant possesses a meritorious claim in the first instance." Cobos v. Adelphi University, 179 F.R.D. 381, 385 (E.D.N.Y. 1998). See also Flaherty v. Hackcling, 221 F.R.D. 383, 386 (E.D.N.Y. 2004); Jedrejcic v. Croatian Olympic Committee, 190 F.R.D. 60, 77 (E.D.N.Y. 1999). "Since 60 (b) allows extraordinary judicial relief, it is invoked only upon a showing of exceptional circumstances." Nemaizer, 793 F.2d at 61. See also Kotlicky v. U.S. Fidelity Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987) ("Generally, courts require that the evidence in support of the motion to vacate a final judgment be `highly convincing'. . . ." [internal citations omitted]);Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir. 1986). District courts have broad discretion in deciding a Federal Rule of Civil Procedure 60(b) motion, Nemaizer, 793 F.2d at 61, but are obligated to consider the circumstances surrounding the neglect including the length of the delay, its potential impact on the judicial proceedings, the reason for the delay, and whether the movant had any control over it, Pioneer Investment Services Co., 507 U.S. at 393. See also Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 365-66 (2d Cir. 2003). Where a party moving for Federal Rule of Civil Procedure 60(b)(1) relief cannot establish by admissible proof circumstances excusing his default, the Court will not reach the second prong of the test — that is, whether the movant's claim or defense is also meritorious. Flaherty, 221 F.R.D. at 387.
In assessing whether a default is excusable, the central element is a demonstration by the movant that he has been diligent rather than dilatory. See Pioneer Investment Services Co., 507 U.S. at 393; Flaherty, 221 F.R.D. at 386 (quotingCintron-Lorenzo v. Departamento de Asuntos del Consumidor, et al., 312 F.3d 522, 527 (1st Cir. 2002)). "[W]here a party fails to act with diligence, he will be unable to demonstrate that his conduct constituted `excusable neglect.'" State Street Bank and Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 177 (2d Cir. 2004).
In Maduakolam, for example, the plaintiff initiated an action against Columbia University and several faculty members, alleging that he had been the victim of racial discrimination in the administration of doctoral qualifying exams. After a pre-trial conference was held and a discovery schedule set, the plaintiff voluntarily traveled to Nigeria and did not return for several months. Due to his absence from the jurisdiction, the plaintiff failed to appear at two scheduled depositions. The defendants moved to dismiss the matter for want of prosecution, and the district court granted their motion. The Second Circuit affirmed, holding that plaintiff's "prolonged absence from the jurisdiction of the court did not provide a reasonable excuse for being dilatory," particularly where the district court had found that the plaintiff had knowledge of the discovery schedule and could have informed the court of his foreign address but chose not to. 866 F.2d at 56. See also Alevizopoulos v. Central American Agency, 137 F.Supp. 689, 690 (S.D.N.Y. 1955).
Plaintiff's affidavit does not even approach what is minimally required to establish diligence on his part. On September 28, 2005, Magistrate Judge Pohorelsky set a new discovery schedule with new deadlines and a firm date of January 13, 2006 for a status conference by phone. Even now, plaintiff does not deny knowledge or understanding of these orders. Indeed, his actions in scheduling depositions with defendants' counsel for early January indicate he understood the orders full well. Plaintiff's excuse for totally ignoring the orders rests entirely on a notice he allegedly sent to his adversary, purportedly dated October 29, 2005, that he would be "out of the country by November 13, 2005" and upon his personal belief that, the Magistrate Judge's order and his own requests for discovery notwithstanding, discovery had already concluded.
The notice and, derivatively, plaintiff's claimed excuse are without effect. Not only does plaintiff fail to offer any proof of service of the notice, the Court's own records reveal that, other than on this motion, the notice has never been filed. More dispositively, even if it had been served and filed, it affords plaintiff no excuse. Nothing in the notice suggests his international travel would conflict with his obligations under the scheduling order. Moreover, plaintiff offers no excuse for his failure to object to those orders or to request an adjournment of discovery scheduled with defendants after he knew he would travel out of the country. He offers no excuse for his failure to notify his adversary or the court either before or while he was out of the country of any inability to comply with the orders.
Plaintiff argues that the court somehow "misapprehended" his absence. But he does not claim he advised his adversary or the court of an alternate mode of communication with him while he was out of the country to enable consideration of alternate scheduling. Nor does he offer any excuse for his failure to do so. Indeed, in his reply papers on this very motion, plaintiff states that he asked defendants' counsel to "forward any court papers through his wife at the same New York address provided to the court because of postal problem[s] in Nigeria." Plaintiff never claims to have informed either the court or his adversary of when he would return. Certainly this Court is mindful of the death of plaintiff's father, which, by plaintiff's own admission, occurred more than five months before plaintiff's final default before the Magistrate Judge. But the death of a parent alone does not excuse plaintiff from failing to contact this Court for over six months when he had actual notice of a schedule set and ordered by the Magistrate Judge and knowledge that his continued absence from the country would make compliance with that schedule impossible. Simply put, plaintiff brought these actions complaining of conduct that dates back almost six years; rather than prosecute them in accord with the ordered schedule, plaintiff eschewed his obligation, ignored rather than sought relief from the orders of the Magistrate Judge, and traveled out of the country for a protracted period of time. The delay is substantial. It is wholly chargeable to plaintiff. And, other than the initial travel occasioned by the death of his father, is wholly unexplained.
The record is plain. Plaintiff has not been diligent. At best, he was dilatory; at worst, given his knowledge of the scheduling orders, he willfully impeded discovery by defendants. Moreover, although plaintiff is pro se, he is not unaccustomed to the practices of this Court. A review of the docket in the actions at bar reveals the existence of at least eight motions filed by plaintiff requesting various forms of relief. Plaintiff has also made numerous other filings, including informal letter requests for relief, certificates of service, and at least two appeals to the Second Circuit. Pointedly, the very appearance before Magistrate Judge Pohorelsky on September 28, 2005 during which the schedule defaulted upon by plaintiff was set came about as a result of plaintiff's written request for an adjournment to that date. The conclusion that plaintiff was fully aware of his obligation to seek rather than assume relief from the ordered schedule is inescapable. The defaults occasioned by his failure to do so are inexcusable.
The Court's records reveal that plaintiff has initiated six actions in this court in that last 10 years. At least two others dealt with the same set of circumstances as the instant actions,Oparaji v. United Federation of Teachers, No. 03 Civ. 03927 (E.D.N.Y. Feb. 27, 2006) (on appeal), and Oparaji v. New York City Department of Education et al., No. 03 Civ. 04105 (E.D.N.Y. June 14, 2005), aff'd 172 Fed. Appx. 352 (2d Cir. 2006).
As plaintiff cannot meet the standard for an excusable default under Federal Rule of Civil Procedure 60(b)(1), the Court need not reach the question of whether plaintiff's underlying claims are meritorious.
Needless to say, plaintiff's protracted absence, failure of communication and defaults caused him to miss his opportunity to object to the Report and Recommendation of the Magistrate Judge to dismiss for want of prosecution. Even had it been timely, see note 2, supra, plaintiff makes no showing on this motion entitling him to reconsideration under Local Civil Rule 6.3 of either the Magistrate Judge's recommendation of dismissal or this Court's order adopting that Recommendation. See, e.g., Park South Tenants Corp. v. 200 Central Park South Assocs., L.P., 754 F.Supp. 352, 354 (S.D.N.Y.), aff'd 941 F.2d 112 (2d Cir. 1991);Sec. Exch. Comm'n v. Treadway, 354 F.Supp. 2d 311, 313 (S.D.N.Y. 2005); Equal Employment Opportunity Comm'n v. Federal Express Corp., 268 F.Supp. 2d 192, 195 (E.D.N.Y. 2003). Indeed, he cannot survive under the more generous standard for relief offered by Federal Rule of Civil Procedure 60(b)(1).
Plaintiff's motion for relief from the judgment of this Court entered on May 15, 2006 dismissing these actions pursuant to Federal Rule of Civil Procedure 41(b) for want of prosecution is denied.
SO ORDERED.