Summary
finding lesser sanctions inappropriate where past court orders did not motivate the plaintiff to move the case forward
Summary of this case from Abbas v. United StatesOpinion
91 Civ. 2295 (MGC).
March 24, 2000.
MICHAEL D. HESS, Corporation Counsel of the City of New York, K. Lesli Ligorner, Esq., Assistant Corporation Counsel, New York, New York, for Defendants.
OPINION
In 1991, plaintiff Constance Smith brought suit against defendants alleging that defendants had discriminated against her on the basis of her race, age, and region of origin, the Bronx, New York. Plaintiff amended her complaint in 1994 to allege that defendants retaliated against her by not hiring her after she was terminated in 1992. As set forth below, plaintiff has failed to appear for depositions, pre-trial conferences, and the final pre-trial conference. Defendants have moved to dismiss the complaint for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). For the following reasons, the motion is granted.
THE FACTS
Over the course of the past nine years, plaintiff has failed to make several required appearances in this case. On October 15, 1993, plaintiff failed to appear for her deposition. On October 30, 1995, plaintiff again failed to appear to be deposed.
More recently, plaintiff has failed to appear for pre-trial conferences. She failed to appear at a conference scheduled for January 8, 1999. She called on the day of the conference to inform the court that she would not appear because the cold weather aggravated her poor health. Plaintiff failed to appear at the rescheduled conference on June 25, 1999, again calling on the day of the conference to inform the court that she would not appear because the hot weather aggravated her poor health.
Plaintiff was directed to appear at the final pre-trial conference in this case by court order dated March 9, 2000. The order, sent to her by both certified and regular mail, explained the importance of the final pre-trial conference to the continuation of plaintiff's case. The order reads as follows:
Plaintiff has failed to appear at either of the pre-trial conferences that she was directed to attend in 1999. A final pre-trial conference is now scheduled for March 23, 2000 at 3:30 p.m. in Courtroom 14-A of the United States Courthouse, 500 Pearl Street, New York, New York, 10007. The parties are directed to appear at that time. If plaintiff again fails to appear at this final pre-trial conference, this action will be dismissed for failure to prosecute.
(Order dated March 9, 2000.)
Plaintiff called on the morning of the conference to inform the court that she had been admitted to the hospital through the emergency room because of high blood pressure and dizziness. She told the court that she did not know when she would be released. Two hours before the conference was scheduled to begin, plaintiff again called to advise the court that although she had been released from the hospital, she would not attend the conference because of "traffic." Every time plaintiff has called to advise the court that she is not attending that day's conference, she has not herself notified counsel for the defendants that she would not appear, and has telephoned the court so close to the time of the conference that it was too late for the court to do so. On each such occasion, defendants' counsel has made a fruitless appearance.
Plaintiff has also not responded to defendants' motions in this case. She never responded to defendants' April 12, 1996 letter motion to dismiss her 42 U.S.C. § 1981 claim and to preclude plaintiff from introducing particular evidence at trial. Plaintiff's only response to this motion to dismiss for failure to prosecute was a letter dated August 23, 1999 in which she apologized for missing the June 25, 1999 conference and asked the court not to dismiss her case because due to a heart condition she is unable to attend court proceedings when the weather is either too hot or too cold.
DISCUSSION
Fed.R.Civ.P. 41(b) provides, in pertinent part, "[f]or failure of the plaintiff to prosecute . . . a defendant may move for dismissal of an action or of any claim against the defendant." It is the plaintiff's duty to "process [her] case diligently." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). This duty of diligence is imposed upon the plaintiff because of the strong policy in favor of the efficient disposition of cases. Id. Over the past nine years, plaintiff has repeatedly failed to perform her duty to move this case forward.
Several factors must be considered in determining the propriety of dismissing an action for failure to prosecute. These factors include "the duration of plaintiff's failures," "whether plaintiff ha[s] received notice that further delays would result in dismissal," and "whether defendant[s] [are] likely to be prejudiced by further delay." Peart v. City of New York, 992 F.2d 458, 461 (2d Cir. 1993) (quoting Romandette v. Weetabix Co., 807 F.2d 309, 312 (2d Cir. 1986)). The court must also balance "the need to alleviate court calendar congestion and [plaintiff's] right to due process." Id. Finally, the court must "assess the efficacy of lesser sanctions." Id.
All of these factors weigh in favor of dismissing this action for failure to prosecute. First, plaintiff's delay in pursuing this action has been lengthy. Plaintiff has taken no action to prosecute this case since attending a pre-trial conference four years ago. Much shorter delays have been held to warrant dismissal for failure to prosecute. See Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 666-67 (2d Cir. 1980) (6 months of inactivity); West v. City of New York, 130 F.R.D. 522, 525 (S.D.N.Y. 1990) (19 months of inactivity).
Second, plaintiff was warned that her failure to appear on March 23, 2000 would result in the dismissal of her case. (Order dated March 9, 2000.) Nevertheless, plaintiff did not appear on March 23, 2000. This motion to dismiss for failure to prosecute also provided plaintiff with notice that any further delay would result in the dismissal of her case. See, e.g., Stoenescu v. Jablonsky, 162 F.R.D. 268, 271 (S.D.N.Y. 1995). Plaintiff's only response to this motion was a letter dated August 23, 1999, almost two weeks after the August 6, 1999 deadline for her response and only after a letter from the defendants requested that the motion be considered unopposed. That response restated plaintiff's excuse for missing the June 25, 1999 conference, the hot weather, and asked that the case not be dismissed in light of plaintiff's health problems.
Third, "[p]rejudice to defendants resulting from unreasonable delay may be presumed." Lyell Theatre, 682 F.2d at 43. Plaintiff has delayed the prosecution of this case for at least four years. This substantial delay is evidence of prejudice to the defendants. Lukensow v. Harley Cars of New York, 124 F.R.D. 64, 67 (S.D.N.Y. 1989) (holding that a two year delay in prosecution was evidence of prejudice).
Fourth, granting this motion does not violate plaintiff's due process rights when the case is dismissed in part to ensure the efficient administration of justice. Dismissal does not deprive the plaintiff of her right to a fair opportunity to be heard. She has had nine years to prosecute her claim and avoid this result. See Lukensow, 124 F.R.D. at 67 (holding that there could be no claim that plaintiffs' due process rights were denied by dismissal following a complete lack of activity for two years).
In fairness to other litigants in this district who seek access to the court, the calendar must be free from unnecessary congestion. As the Second Circuit has explained, "the authority to invoke [dismissal] 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, 682 F.2d at 42. Plaintiff's repeated last minute cancellations of scheduled appearances have wasted the time of counsel for defendants and the court.
Finally, lesser sanctions are not appropriate in this case. Court orders and direction have not prompted plaintiff to move her case forward. Plaintiff was ordered by Magistrate Judge Peck to attend a deposition in October of 1995 which she did not attend. She was informed by letter that this court directed her to appear for a conference in January of 1999 and again in June of 1999. Plaintiff did not appear at either conference. Finally, she was ordered to appear on March 23, 2000 or have her claims dismissed. Plaintiff did not appear. Moreover, plaintiff is proceeding in forma pauperis, rendering monetary sanctions inappropriate.
While I am not unsympathetic to plaintiff's health problems, there comes a time when fairness to the defendants requires that the action move forward. Plaintiff's history of missed appearances, the lengthy period of inactivity in this case, and her failure to respond to two defense motions warrant dismissal for failure to prosecute. Plaintiff seems to have lost interest in pursuing this case. When given a clear last chance to attend the March 23, 2000 conference and continue this action, plaintiff did not take advantage of the opportunity.
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss this case for failure to prosecute is granted. This action is dismissed with prejudice.
SO ORDERED.