Opinion
20 Civ. 10170 (VEC) (GWG)
12-20-2021
RONALD G. TAYLOR, Plaintiff, v. STARBUCKS CORPORATION, Defendant.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff, Ronald Taylor, proceeding pro se, filed the complaint in this action in the Supreme Court for the State of New York on October 28, 2020. See Exhibit A to Notice of Removal, filed Dec. 3, 2020 (Docket # 1-1). Defendant, Starbucks Corporation, removed the case to federal court on December 3, 2020. See Notice of Removal, filed Dec. 3, 2020 (Docket # 1). The complaint alleged a claim of negligence regarding a confrontation plaintiff had at a Starbucks store in which he injured his shoulder when he was forced to remove his coat after having been accused of shoplifting. See id.
On September 29, 2021, defendant moved for summary judgment dismissing plaintiff's claims. See Motion for Summary Judgment, filed Sept. 29, 2021 (Docket # 19). Pursuant to the schedule ordered by the Court, plaintiff's opposition was due on October 20, 2021. Order of September 8, 2021 (Docket # 17). Notwithstanding this deadline, Taylor failed to respond to Starbucks' motion.
In light of Taylor's pro se status, the Court sua sponte issued an order extending Taylor's time to respond to November 11, 2021. See Order of October 27, 2021 (Docket # 25) (“Oct. 27 Order”). The Court specifically warned that, if Taylor failed to file his response by this deadline, such failure “may result in dismissal of plaintiff's case under Fed.R.Civ.P. 41(b) for failure to prosecute.” Id. Taylor did not file a response.
On November 19, 2021, the Court issued an order requiring Taylor to show cause why this case should not be dismissed for failure to prosecute, setting a deadline of December 9, 2021 for his response. See Order of November 19, 2021 (Docket # 26) (“OSC”). Taylor was warned that “[f]ailure to respond to th[e] order to show cause may by itself result in the case's dismissal for failure to prosecute.” Id. at 1. To date, Taylor has not filed a response to the motion for summary judgment, filed a response to the Order to Show Cause, or requested an extension of time to respond to either of them.
Fed. R. Civ. P. 41(b) provides in relevant part:
If the plaintiff fails to prosecute . . . a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision . . . operates as an adjudication on the merits.
A decision to dismiss an action for failure to prosecute “may be made sua sponte.” Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998) (citing Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)). Although dismissal is “‘a harsh remedy to be utilized only in extreme situations, '” Hoefer v. Bd. of Educ. of the Enlarged City Sch. Dist. of Middletown, 820 F.3d 58, 64 (2d Cir. 2016) (quoting Jackson v. City of New York, 22 F.3d 71, 75 (2d Cir. 1994)), “the authority to invoke it 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. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). The “court should not have to beg the parties before it to litigate the cases they initiate.” McLean v. City of New York, 2007 WL 415138, at *4 (S.D.N.Y. Feb. 6, 2007). “Dismissal for failure to prosecute, pursuant to Fed.R.Civ.P. 41(b), is a matter committed to the discretion of the district court.” Romandette v. Weetabix Co., 807 F.2d 309, 312 (2d Cir. 1986) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962); Lyell, 682 F.2d at 43).
A district court considering a dismissal pursuant to Rule 41(b) for failure to prosecute weighs five factors:
(1) the duration of the plaintiff's failures; (2) whether plaintiff had received notice that further delays would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay; (4) whether the district judge has taken care to strike the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard; and (5) whether the judge has adequately assessed the efficacy of lesser sanctions.Martens v. Thomann, 273 F.3d 159, 180 (2d Cir. 2001) (quoting Shannon v. Gen. Elec. Co., 186 F.3d 186, 193-94 (2d Cir. 1999)); accord Platinum Funding Corp. v. Bosselli Studio Ltd., 368 Fed.Appx. 207, 208-09 (2d Cir. 2010). No single factor is dispositive. Martens, 273 F.3d at 180.
These factors strongly counsel in favor of dismissal in the instant case. Taylor has failed to take any action in this case since January 26, 2021, when he filed a letter that appeared to request a stay of the case. See Letter from Ronald Taylor, filed Jan. 26, 2021 (Docket # 12); see also Order of January 28, 2021 (Docket # 13) (“If [Taylor's] request is to stay this case, that request is denied . . . . If there is a specific obligation that requires an adjournment, plaintiff should consult with defendant's attorney and make an application for an extension of that obligation if necessary noting whether there has been any agreement between the parties.”). This period of inaction, nearly a year long, weighs strongly in favor of dismissal. See Sanchez v. Bracketron, Inc., 2021 WL 2440663, at *2 (S.D.N.Y. June 15, 2021) (finding this factor supported dismissal where “Plaintiffs inaction span[ned] more than three months”); Chavis v. City of New York, 2018 WL 6532865, at *3 (S.D.N.Y. Oct. 12, 2018) (dismissal after a four month delay), report and recommendation adopted, 2018 WL 6528238 (S.D.N.Y. Dec. 11, 2018). Additionally, Taylor was clearly on notice that further delay could result in dismissal. Indeed, the Court warned Taylor on two separate occasions. See Oct. 27 Order at 1 (warning Taylor that if he failed to respond to Starbucks' motion, such failure “may result in dismissal of plaintiffs case under Fed.R.Civ.P. 41(b) for failure to prosecute.”); OSC at 1 (“Failure to respond to this order to show cause may by itself result in the case's dismissal for failure to prosecute.”). Two warnings are sufficient to find this factor weighs in favor of dismissal. See Leybinsky v. United States Citizenship & Immigr. Servs., 2020 WL 7295661, at *2 (E.D.N.Y. Dec. 2, 2020) (dismissal after one warning); Chavis, 2018 WL 6532865, at *4 (dismissal after two warnings).
As to whether Starbucks is likely to be prejudiced by further delay, “[p]rejudice to defendants resulting from unreasonable delay may be presumed.” Lyell, 682 F.2d at 43 (citation omitted). Additionally, Starbucks “suffer[s] prejudice in the form of wasted time and resources, ” Greene v. City of New York, 2020 WL 2840521, at *3 (E.D.N.Y. Apr. 23, 2020), report and recommendation adopted, 2020 WL 2836785 (E.D.N.Y. June 1, 2020), as it has fully briefed its motion for summary judgment, which Taylor never responded to. Accordingly, this factor weighs in favor of dismissal.
As for the fourth factor, the Court has a strong interest in managing its docket and cannot indefinitely wait for Taylor 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.” George v. Cousins Printing LLC, 2008 WL 4093057, at *2 (S.D.N.Y. Sept. 2, 2008) (citing Feurtado v. City of New York, 225 F.R.D. 474, 480 (S.D.N.Y. 2004)).
Finally, the Court has no reason to believe that any lesser sanction will succeed in altering Taylor's behavior. Indeed, Taylor has failed to comply with two court orders directing him to respond and could not even be bothered to explain why the case should not be dismissed when he was ordered to do so. See Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 178 (2d Cir. 2008) (per curiam) (“[I]n light of [plaintiff's] failure to respond to the notice threatening dismissal, it is . . . unclear that a lesser sanction would have proved effective in this case.”) (punctuation omitted). Dismissal is therefore the appropriate sanction. See Nava v. Opai Thai Inc., 2021 WL 1873153, at *2 (S.D.N.Y. May 10, 2021) (finding dismissal to be the appropriate sanction where “there [was] nothing in the record to suggest that a sanction less serious tha[n] dismissal will resolve the plaintiff's failure to cooperate”) (internal quotation omitted). Accordingly, all of the factors weigh in favor of dismissal.
For the foregoing reasons, this action should be dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Caproni. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
The Clerk is requested to mail a copy of this Report and Recommendation to plaintiff.