ARES BARRETO v. N. RIZZO, Correctional Officer (R.C.C.F.)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

ARES BARRETO,

Plaintiff,

9:24-CV-0969

v. (FJS/ML)

N. RIZZO, Correctional Officer (R.C.C.F.),

Defendant.

____________________________________________

APPEARANCES: OF COUNSEL:

ARES BARRETO

Pro Se Plaintiff

190 Hoosick Street

Troy, New York 12180

(last known address)

JOHNSON & LAWS, LLC GREGG JOHNSON, ESQ.

Counsel for Defendant OLIVIA REINHARDT,

646 Plank Road, Suite 205 ESQ.

Clifton Park, New York 12065

MIROSLAV LOVRIC, United States Magistrate Judge

REPORT and RECOMMENDATION

Currently before the Court, in this civil rights action filed by Ares Barreto (“Plaintiff”)

against N. Rizzo (“Defendant”), is Defendant’s motion to dismiss pursuant to Fed. R. Civ. P. 37

and 41(b) and motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 31.) For

the reasons set forth below, I recommend that Defendant’s motion to dismiss be granted.

I. RELEVANT BACKGROUND

A. Procedural History

On August 7, 2024, Plaintiff commenced this action by the filing of a Complaint,

accompanied by a motion for leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.)

On September 16, 2024, Senior United States District Judge Frederick J. Scullin Jr.

granted Plaintiff’s IFP application and ordered that Plaintiff’s failure to protect claim pursuant to

the Fourteenth Amendment against Defendant survived sua sponte review and required a

response. (Dkt. No. 4.)

On September 16, 2024, Plaintiff filed a notice of change of address. (Dkt. No. 6.) The

Clerk of the Court re-sent Judge Scullin’s Order dated September 16, 2024, to Plaintiff’s new

address. (Docket entry dated 09/17/2024.)

On April 9, 2025, Defendant filed a motion to compel. (Dkt. No. 20.) The Court

directed Plaintiff to file a response to Defendant’s motion and scheduled an on the record hearing

for May 2, 2025. (Dkt. No. 22.)

The Court held a hearing on May 2, 2025, and Plaintiff failed to appear or file a response

to Defendant’s motion to compel. (Minute entry dated 05/02/2025.) Plaintiff was “ADVISED

THAT FAILURE TO COMPLY WITH COURT ORDERS, OR FAILURE TO ENGAGE

IN THE DISCOVERY PROCESS, OR FAILURE TO APPEAR FOR DEPOSITION, OR

FAILURE TO KEEP UPDATED WITH THE COURT IN WRITING HIS ADDRESS

AND CONTACT INFORMATION, MAY RESULT IN SANCTIONS BEING IMPOSED

PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE.”

(Id.; accord Dkt. No. 23.) The Court scheduled a hearing for June 6, 2025, and directed that

Plaintiff appear in person for the hearing. (Dkt. No. 23.)

On May 30, 2025, the Court received returned as undeliverable the Minute Entry dated

05/02/2025, the Text Order dated May 2, 2025, and the Notice of Hearing dated May 2, 2025.

(Dkt. No. 25.)

On June 6, 2025, the Court held a hearing and Plaintiff failed to (1) appear for the

hearing, (2) file a response to the motion to compel, (3) file a status report as directed, and (4)

comply with his discovery obligations as set forth by the Court. (Minute Entry dated

06/06/2025.) Plaintiff was “ADVISED THAT FAILURE TO COMPLY WITH COURT

ORDERS, OR FAILURE TO ENGAGE IN THE DISCOVERY PROCESS, OR FAILURE

TO APPEAR FOR DEPOSITION, OR FAILURE TO KEEP UPDATED WITH THE

COURT IN WRITING HIS ADDRESS AND CONTACT INFORMATION, MAY

RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41,

INCLUDING DISMISSAL OF THE CASE.” (Id.; accord Dkt. No. 26.) The Court scheduled

a hearing for June 30, 2025, and directed that Plaintiff appear in person for the hearing. (Dkt.

No. 26.)

On June 25, 2025, the Court received returned as undeliverable the Minute Entry dated

06/06/2025, and the Text Order dated June 6, 2025. (Dkt. No. 27.)

On June 30, 2025, the Court held a hearing and Plaintiff failed to (1) appear for the

hearing, (2) file a response to the motion to compel, (3) file a status report as directed, and (4)

comply with his discovery obligations as set forth by the Court. (Minute Entry dated

06/30/2025.) Plaintiff was “ADVISED THAT FAILURE TO COMPLY WITH COURT

ORDERS, OR FAILURE TO APPEAR FOR COURT PROCEEDINGS, OR FAILURE

TO ENGAGE IN THE DISCOVERY PROCESS, OR FAILURE TO APPEAR FOR

DEPOSITION, OR FAILURE TO KEEP UPDATED WITH THE COURT IN WRITING

HIS ADDRESS AND CONTACT INFORMATION, MAY RESULT IN SANCTIONS

BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL

OF THE CASE.” (Id.; accord Dkt. No. 28.) The Court scheduled a hearing for July 31, 2025,

and directed that Plaintiff appear in person for the hearing. (Dkt. No. 28.)

On July 31, 2025, the Court held a hearing and Plaintiff failed to (1) appear for the

hearing, (2) file a response to the motion to compel, (3) file a status report as directed, and (4)

comply with his discovery obligations as set forth by the Court. (Minute Entry dated

07/31/2025.) Plaintiff was “ADVISED THAT FAILURE TO COMPLY WITH COURT

ORDERS, OR FAILURE TO APPEAR FOR COURT PROCEEDINGS, OR FAILURE

TO ENGAGE IN THE DISCOVERY PROCESS, OR FAILURE TO APPEAR FOR

DEPOSITION, OR FAILURE TO KEEP UPDATED WITH THE COURT IN WRITING

HIS ADDRESS AND CONTACT INFORMATION, MAY RESULT IN SANCTIONS

BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL

OF THE CASE.” (Id.; accord Dkt. No. 29.) The Court scheduled a hearing for September 15,

2025, and directed that Plaintiff appear in person for the hearing. (Dkt. No. 29.) In addition, the

Court directed Plaintiff to show cause, in writing by September 5, 2025, why this case should not

be dismissed. (Id.)

On September 15, 2025, the Court held a hearing and Plaintiff failed to (1) appear for the

hearing, (2) file a response to the motion to compel, (3) file a status report as directed, (4)

comply with his discovery obligations as set forth by the Court, and (5) show cause why the

action should not be dismissed. (Minute Entry dated 09/15/2025.) Plaintiff was “ADVISED

THAT FAILURE TO COMPLY WITH COURT ORDERS, OR FAILURE TO APPEAR

FOR COURT PROCEEDINGS, OR FAILURE TO ENGAGE IN THE DISCOVERY

PROCESS, OR FAILURE TO APPEAR FOR DEPOSITION, OR FAILURE TO KEEP

UPDATED WITH THE COURT IN WRITING HIS ADDRESS AND CONTACT

INFORMATION, MAY RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO

FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE.” (Id.) The Court

authorized Defendant to file a dispositive motion in this matter.

On October 16, 2025, Defendant filed the pending motion. (Dkt. No. 31.) The deadline

for Plaintiff to file a response to Defendant’s motion was November 13, 2025. (Dkt. No. 33.)

On November 17, 2025, the Court sua sponte granted Plaintiff an extension of time until

December 17, 2025, to file a response to Defendant’s motion. (Dkt. No. 34.) Plaintiff was

cautioned that his “failure to file any response may result in the motion being granted since the

Court will not have the benefit of Plaintiff's response to consider in making its decision.” (Id.)

On January 14, 2026, the Court again sua sponte granted Plaintiff an extension of time until

February 17, 2026, to file a response to Defendant’s motion. (Dkt. No. 35.)

To date, Plaintiff has not responded to Defendant’s motion. (See generally docket sheet.)

B. Defendant’s Motion

Generally, in support of his motion to dismiss and motion for summary, Defendant

asserts the following five arguments: (1) Defendant is entitled to dismissal of the Complaint

based on Plaintiff’s disregard of this Court’s orders and his failure to prosecute; (2) Plaintiff

failed to exhaust his available administrative remedies under the Prison Litigation Reform Act

(“PLRA”); (3) the actions or inactions of Defendant were not violative of the Fourteenth

Amendment because (a) the undisputed facts to do not support Plaintiff’s failure to protect claim,

and (b) the undisputed facts do not support Plaintiff’s implied failure to intervene claim; (4) in

the alternative, Defendant is entitled to qualified immunity; and (5) in the alternative, Plaintiff is

not entitled to punitive damages. (See generally Dkt. No. 31, Attach. 17.)

II. LEGAL STANDARDS GOVERNING A MOTION TO DISMISS FOR FAILURE

TO PROSECUTE

For reasons that are self-evident, this Court’s local rules require that “[a]ll attorneys of

record and pro se litigants immediately notify the Court of any change of address.” N.D.N.Y.

L.R. 10.1(c)(2) (emphasis omitted). As one court has observed with respect to this requirement,

[i]t is neither feasible nor legally required that the clerks of the district

courts undertake independently to maintain current addresses on all parties

to pending actions. It is incumbent upon litigants to inform the clerk of

address changes, for it is manifest that communications between the clerk

and the parties or their counsel will be conducted principally by mail. In

addition to keeping the clerk informed of any change of address, parties

are obliged to make timely status inquiries. Address changes normally

would be reflected by those inquiries if made in writing.

Dansby v. Albany Cnty. Corr. Facility Staff, 95-CV-1525, 1996 WL 172699, at *1 (N.D.N.Y.

Apr. 10, 1996) (Pooler, J.) (quoting Perkins v. King, 84-3310, 1985 U.S. App. LEXIS 31736, at

*4 (5th Cir. Mar. 19, 1985)).

Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its

discretion, order dismissal of an action based on a plaintiff's failure to prosecute or comply with

an order of the court.1 Fed. R. Civ. P. 41(b); Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir.

2014); Rodriguez v. Goord, 04-CV-0358, 2007 WL 4246443, at *2 (N.D.N.Y. Nov. 27, 2007)

1 Although Rule 41(b) grants a defendant leave to move for dismissal based on a plaintiff’s

failure to prosecute or comply with a court order (rather than grant the court explicit authority to

dismiss sua sponte), “courts retain the ‘inherent power’ to sua sponte ‘clear their calendars of

cases that have remained dormant because of the inaction or dilatoriness of the parties seeking

relief.’” Rodriguez v. Goord, 04-CV-0358, 2007 WL 4246443, at *2 (N.D.N.Y. Nov. 27, 2007)

(Scullin, J.) (quoting link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). Indeed, the local rules

of this Court recognize this authority and mandate that the Court exercise it under certain

circumstances. See, e.g., N.D.N.Y. L.R. 41.2(a).

(Scullin, J. adopting report and recommendation by Lowe, M.J.). That discretion should be

exercised when necessary to “achieve the orderly and expeditious disposition of cases.” Link v.

Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition, it should be exercised with caution

and restraint because dismissal is a particularly harsh remedy, especially when invoked against a

pro se plaintiff. Baptiste, 768 F.3d at 216-17.

A determination of whether to dismiss an action pursuant to Rule 41(b) is informed by

consideration of the following five specific factors: (1) the duration of the plaintiff's failure to

comply with court orders; (2) whether the plaintiff was on notice that failure to comply would

result in dismissal; (3) whether the defendant is 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 a fair chance to be heard; and (5) whether the imposition of sanctions less drastic than

dismissal is appropriate. Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citing Jackson v. City

of New York, 22 F.3d 71, 74 (2d Cir. 1994); Alvarez v. Simmons Mkt. Research Bureau, Inc., 839

F.2d 930, 932 (2d Cir. 1988)); see also Shannon v. Gen. Elec.Co.,186 F.3d 186, 193-94 (2d Cir.

1999); Lebarron v. Warren Cnty. Sheriff’s Office, 13-CV-1572, 2016 WL 2621796, at *4, n.3

(N.D.N.Y. Apr. 6, 2016) (Hummel, M.J.) (quoting Barney v. Consol. Edison Co. of New York,

99-CV-0823, 2006 WL 4401019, at *16 (E.D.N.Y. July 19, 2006)) (“‘[C]ourts consider the same

factors applicable to Rule 41(b) when considering dismissal pursuant to Rule 37.’”), report and

recommendation adopted, 2016 WL 2636293 (N.D.N.Y. May 6, 2016) (Suddaby, C.J.).

Rule 37(d) of the Federal Rules of Civil Procedure provides that if an individual fails to

appear at his own deposition after having received proper notice, the court may take various

steps to sanction the disobedient party. Fed. R. Civ. P. 37(d)(1)(A)(i). Section 37(d) cross

references Rule 37(b)(2)(A)(v), which also authorizes the court to dismiss an action for failure to

comply with a discovery order. The imposition of sanctions under Rule 37 is within the

discretion of the district court, and the sanction of dismissal is a harsh remedy to be used “only in

extreme situations.” Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 764 (2d Cir. 1990).

In order to impose such a severe sanction, the court must find willfulness, bad faith, or fault on

the individual from whom discovery is sought. Bobal, 916 F.2d at 764. The party in question,

particularly a pro se litigant, must have had prior notice that violation of the court’s order would

result in dismissal with prejudice. Simmons v. Abruzzo, 49 F.3d 83, 88 (2d Cir. 1995).

III. ANALYSIS

After carefully considering the matter, I recommend that Defendant’s motion to dismiss

for failure to prosecute be granted for the reasons stated in his memorandum of law. (Dkt. No.

31, Attach. 17 at 14-16.) The following is intended to supplement—not supplant—those

reasons.

Plaintiff was specifically informed of the requirement that he update his address with the

Clerk of the Court or risk dismissal of his lawsuit, when he was provided with (1) Senior Judge

Scullin’s decision and order dated September 16, 2024 (Dkt. No. 4 at 14), (2) the undersigned’s

order of May 2, 2025 (Dkt. No. 23), (3) the undersigned’s order of June 6, 2025 (Dkt. No. 26),

(4) the undersigned’s order of June 30, 2025 (Dkt. No. 28), and (5) the undersigned’s order of

July 31, 2025 (Dkt. No. 29).

Moreover, despite the fact that Plaintiff has previously notified the Court of his address

change (Dkt. No. 6), based on the return of mail sent to Plaintiff by the Court (Dkt. Nos. 25, 27),

it appears that Plaintiff has failed to provide notification of his most recent address change to the

Court and Defendant’s counsel.

Based upon careful consideration of the foregoing relevant factors, I conclude that

dismissal of Plaintiff's Complaint at this juncture is warranted. The inability of the Court to

communicate with Plaintiff is due solely to his failure to prosecute or to provide the Court with

his updated address. Plaintiff's failure to proceed in this action has a substantial injurious effect

on the litigation, and there is no end to Plaintiff's inaction in sight.

Pursuant to Local Rule 41.2(a), “the plaintiff’s failure to take action for four (4) months

shall be presumptive evidence of lack of prosecution.” N.D.N.Y. L.R. 41.2(a). The last contact

that Plaintiff had with the Court was on November 22, 2024—over seventeen months ago—

when he filed a motion seeking appointment of counsel. (Dkt. No. 17; see generally docket

sheet.)

Despite Plaintiff's awareness of his responsibility, he has failed to provide an updated

address to the Court. Given Plaintiff's manifest disinterest in pursuing his claims in this action, I

find that the need to alleviate congestion on the Court’s docket and Defendant’s interest in

defending against the claims asserted by Plaintiff, outweigh his right to receive a further

opportunity to be heard in this matter. As required, I have considered less-drastic sanctions, but

reject them as ineffective. For example, I am persuaded that issuing an order reprimanding

Plaintiff for his conduct would be futile, given that such an order would, in all likelihood, never

reach Plaintiff due to his failure to provide the Court with a current address.

For each of these reasons and those set forth by Defendant in Defendant’s moving papers

(Dkt. No. 31), I recommend that Plaintiff’s Complaint be dismissed with prejudice for failure to

prosecute pursuant to Fed. R. Civ. P. 41(b).2

2 To the extent that the assigned District Judge disagrees with this recommendation, it is

requested that Defendant’s motion for summary judgment be returned to the undersigned for

consideration of his arguments.

ACCORDINGLY, it is respectfully

RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED in its

entirety, pursuant to Fed. R. Civ. P. 41(b), based on his failure to prosecute and comply with this

Court’s orders and local rules of practice; and it is further

RECOMMENDED that Defendant’s motion to dismiss for failure to prosecute (Dkt. No.

31) be GRANTED; and it is further

ORDERED that the Clerk of the Court shall file a copy of this Report and

Recommendation on the docket of this case and serve a copy upon the parties in accordance with

the local rules.>

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), 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 DAYS WILL PRECLUDE APPELLATE REVIEW.

Roldan vy. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human

Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.

Dated: April 27, 2026

Binghamton, New York t □

Miroslav Lovric

U.S. Magistrate Judge

3 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein

in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

4 If you are proceeding pro se and 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 that the report, recommendation, and order was mailed to you to

serve and file objections. FED. R. Civ. P. 6(d). Ifthe 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).

10

2006 WL 4401019 BACKGROUND

Only the Westlaw citation is currently available.

United States District Court, Plaintiff originally filed her complaint pro se on February 10,

E.D. New York. 1999. Docket Entry 2. At the initial conference held on July

2, 1999, I stayed discovery to provide plaintiff an opportunity

Dorothy BARNEY, Plaintiff, to obtain counsel. Docket Entry 17. In November of 1999,

v. Malik Cutlar, who works with Stephen T. Mitchell, appeared

CONSOLIDATED EDISON COMPANY on behalf of plaintiff and discovery began with a deadline

OF NEW YORK, Defendant. of June 30, 2000. Docket Entry 20. On January 4, 2000,

Mr. Mitchell filed a notice of appearance on behalf of Ms.

No. 99-CV-823 (DGT). Barney. Docket Entry dated Jan. 4, 2000. Upon application

| of plaintiff's counsel, the original discovery deadline was

July 19, 2006. extended to November 15, 2000. Docket Entry 24.

Attorneys and Law Firms

1. Plaintiff failed to respond to initial discovery demands.

Dorothy Barney, New York, NY, pro se. By letter dated February 6, 2001, defendant informed the

Court that plaintiff failed to comply with discovery demands

Barbara Jane Carey, Consolidated Edison Company, New

despite repeated requests. In particular, Mr. Mitchell failed

York, NY, for Defendant.

to answer interrogatories served nine months prior, failed

to supply executed authorizations, and failed to provide

defendant with EEOC documents plaintiff had promised to

REPORT AND RECOMMENDATION

provide ten months prior. Def.'s Letter dated Feb. 6, 2001.1

GOLD, S., U.S.M.J. Defendant's counsel, Barbara Jane Carey, noted that, without

this missing discovery, she could not proceed with plaintiff's

deposition. Id. On February 7th, Mr. Mitchell responded

INTRODUCTION

that he would provide documents that day. Pl.'s Letter dated

*1 Plaintiff Dorothy Barney filed her complaint in this Feb. 7, 2001. By letter dated February 12, 2001, defendant

action on February 10, 1999, alleging that defendant pointed out that Mr. Mitchell did provide some documents

Consolidated Edison Company of New York (“Con Ed”) the previous week but they were not responsive to her prior

discriminated against her in violation of Title VII of the demands.

Civil Rights Act of 1964, as codified at 42 U.S.C. §§ 2e

to 2000e-17, in violation of the Age Discrimination Act In light of Mr. Mitchell's lengthy delay in answering discovery

of 1967, as codified at 29 U.S.C. §§ 621 to 634, and in demands, I attempted to move this case forward by setting

violation of the Americans with Disabilities Act of 1990, as specific deadlines for various discovery events. Docket Entry

codified at 42 U.S.C. §§ 12112 to 12117. Docket Entry 2. 28. At a conference on February 21, 2001, I ordered that

More than six years later, on February 28, 2005, defendant plaintiff's deposition would take place on April 30, 2001 and

moved to dismiss the complaint for failure to prosecute and indicated that it could be adjourned only by stipulation filed

for failure to comply with court orders. Memorandum of Law with the court by April 16, 2001 and for no more than thirty

in Support of Defendant's Motion to Dismiss (“Def.'s Mem.”), days. Id. In addition, I ordered plaintiff's counsel to serve

Docket Entry 83. In the alternative, defendant sought to close notices for all depositions he intended to take by April 2,

plaintiff's right to take discovery, to preclude plaintiff's expert 2001, for the notices to schedule the depositions during the

from testifying at trial, and to continue plaintiff's deposition. same week as Ms. Barney's, subject to adjournment only

Id. The Honorable David G. Trager has referred this motion under the same circumstances as Ms. Barney's deposition.

to me for a report and recommendation. Docket Entry 87. I Id. At this conference, Mr. Mitchell indicated that he did not

respectfully recommend that defendant's motion to dismiss be anticipate calling any expert witnesses at trial. Id.

granted.

2. Plaintiff failed to take discovery on the dates ordered by the noticed party to appear for a deposition might result in

the court in February, 2001. sanctions, including dismissal or default. Docket Entry 35.

*2 In violation of my February 21, 2001 ruling, plaintiff

asked to move Ms. Barney's deposition back one day only

three days before her scheduled deposition. Pl.'s Letter dated 5. Plaintiff again failed to complete depositions during May

Apr. 27, 2001. Mr. Mitchell later agreed to proceed with and June of 2002.

Ms. Barney's deposition as scheduled. Pl.'s Second Letter Despite my April 25th rulings, the depositions did not go

of Apr. 27, 2001. At this time, Ms. Carey asserted that forward as scheduled. Defendant wrote to the court in May

Mr. Mitchell never served deposition notices as required by concerning Mr. Mitchell's cancellation of the previously-

my February 21st order. Def.'s Letter dated Apr. 27, 2001. scheduled deposition dates and his refusal to set new

Mr. Mitchell responded that he mailed deposition notices by ones. Def.'s Letter dated May 29, 2002. In her letter, Ms.

the required date, as well as interrogatories and document Carey noted that she made calls and sent letters to Mr.

requests, to which defendant had not responded. Id. At a Mitchell over the course of the preceding month with no

telephone conference on April 27th, I directed defendant to response. Id. Again I granted Mr. Mitchell additional time

respond to the discovery demands within three weeks. Docket to reschedule depositions. See Docket Entry 36. During a

Entry 29. I also scheduled several depositions and ruled that telephone conference with the parties on June 3rd, I ordered

unavailability of counsel would not be grounds for adjourning two depositions to proceed during June and directed the

these depositions. Id . I set June, 2001 as the new deadline for parties to confer and advise my chambers within two days

discovery. Id. of dates set for the depositions of three remaining witnesses

named Watkins, Correa, and Austin. Docket Entry 36. On

June 10th, Ms. Carey wrote to the Court stating that Mr.

3. Discovery remained incomplete six months after the Mitchell had not contacted her to schedule the depositions.

adjourned deadline of June, 2001. Docket Entry 37. Again I intervened and set specific dates in

The discovery deadline was subsequently extended several July and September for the depositions. Docket Entry 38. I

more times over the course of the following year. Docket warned plaintiff that failure to proceed with the depositions

Entries 30-34 and Endorsed Orders. At a conference on of the three witnesses in issue would result in an order

December 19, 2001, plaintiff indicated his intention to call precluding them from testifying at trial. Id.

non-party witnesses at trial. I ordered Mr. Mitchell to identify

those witnesses by January 4, 2002. Docket Entry 33. Plaintiff

had also now decided she would seek to offer expert testimony 6. Plaintiff failed to proceed with Court-ordered depositions

at trial. I set February 8, 2002 as the deadline for plaintiff's during the summer of 2002, despite my preclusion warning.

expert reports, and extended the discovery deadline to April *3 Mr. Mitchell failed to take the July and September

19, 2002. Id. depositions as scheduled. Three days before the first

scheduled deposition, the deposition of Watkins, Mr. Mitchell

wrote to the Court indicating that he had transposed the

4. Plaintiff failed to meet the April 19, 2002 deadline and witnesses and their deposition dates and wished to change

preclusion sanctions were imposed. the schedule. Docket Entry 39. I urged the parties to work

At a conference on April 25, 2002, upon learning that plaintiff together to reschedule the Watkins deposition and ordered the

had not produced her expert reports by February 8, 2002 second deposition to proceed as previously scheduled. Order

as I had previously ordered, I ruled that plaintiff would be endorsed on Pl.'s Letter dated July 8, 2002, Docket Entry 39.

precluded from introducing any expert medical testimony at The day before the second deposition, Mr. Mitchell wrote

trial. Docket Entry 35. I further ordered plaintiff to produce to inform the Court that he was withdrawing the witness,

any accounting expert report on pain of preclusion by July Correa.2 Pl.'s Letter dated July 17, 2002. By letter dated

15, 2002. Id. The parties had agreed on dates for several

August 6, 2002, Mr. Mitchell wrote to the Court stating that

depositions to occur during May and June of 2002 and I

the third deposition-the deposition of Austin-would not be

ruled that those depositions could proceed. Docket Entries

able to go forward as scheduled the following month due to

34, 35. In light of the repeated extensions of the discovery

a scheduling conflict on his part. Docket Entry 40. I granted

deadline I had already granted, however, I ruled that failure

Mr. Mitchell additional time to depose Austin. Mr. Mitchell

of the noticing party to proceed would constitute a waiver

identified whom he wished to depose. Id. letter); 5) failed to comply with an April 25th order to

reimburse defendant's expenses for a deposition that plaintiff

During a telephone conference on August 12, 2002, I granted cancelled without notice; and 6) failed to provide defendant

plaintiff additional time yet again and ordered that all with deposition transcripts. In response, Mr. Mitchell disputed

remaining depositions needed to be held before September some of these failures and indicated that he intended to cure

24, 2002. I directed the parties to provide me with a any deficiencies forthwith. Pl.'s Letter dated Dec. 3, 2002. In

schedule specifying the date for each remaining deposition particular, Mr. Mitchell stated that he would provide the Tinari

by September 10, 2002. Docket Entry 41. By letter dated expert report by December 20, 2002, writing that “Dr. Tinari

September 10th, defendant's counsel informed me that her can provide the report by that date and be available in early

efforts to speak with Mr. Mitchell to coordinate deposition January for deposition.” Id. at 2.

dates had, like before, been unsuccessful. Docket Entry 42.

On September 20th, Ms. Carey wrote to the Court yet again

concerning her inability to speak to Mr. Mitchell to schedule 8. Although granted additional time yet again, plaintiff

depositions. As I had several times before, I intervened and failed to complete discovery by the deadlines set at the final

afforded plaintiff additional time. At a previously scheduled discovery conference on December 20, 2002.

conference on October 8th, I set dates for depositions of *4 I held yet another conference on December 20, 2002. At

various witnesses, including-despite my prior warnings of that time, I granted Mr. Mitchell additional time to complete

preclusion-Austin. Docket Entry 43. I again warned that expert discovery, set specific dates for the depositions of

sanctions would be imposed for failure to proceed. Id. I set certain remaining fact witnesses, and ruled that discovery was

a new date for plaintiff's economic expert report and ordered otherwise closed. Docket Entry 49. During the course of the

that all expert depositions be completed by January 15, 2003. conference, I expressed my frustration with plaintiff's counsel

Id. and issued certain rulings. First, I noted that “deadlines

come and go, dates get scheduled and they're missed with

regularity” by plaintiff. Tr. of Dec. 20, 2002, Docket Entry

7. Plaintiff failed to comply with the discovery deadlines set 49, at 3. Mr. Mitchell conceded that his is a “small firm

on October 8, 2002. and [he] do[es]n't always make deadlines.” Id. at 11. He

During the conference on October 8th, I directed that the acknowledged that his economic expert's report was overdue,

deposition of a witness named Donohue proceed on October that an order to produce the report by mid-January would give

18th. This direction was made subject to the warnings him “more than enough time,” and that preclusion would be

described in the preceding paragraph. Nevertheless, on appropriate if he failed to meet that deadline. Id. at 11-12.

October 17, 2002, Mr. Mitchell requested an adjournment I ordered the report produced by January 10, 2003 on pain

of the court-ordered deposition of Donohue scheduled for of preclusion. Id. at 14-15. I again ordered Mr. Mitchell to

the following day. Docket Entry 45. I denied that request pay the expenses defendant incurred when Mr. Mitchell failed

based on Mr. Mitchell's repeated requests for extensions and to appear for a scheduled deposition, and directed that the

cancellations of depositions and held that plaintiff's right to amount would double if the payment was not made by January

take the Donohue deposition had now been waived. Id. 1, 2003. Id. at 16. Despite his failure to complete previously-

requested discovery in a timely fashion, Mr. Mitchell made

In a letter dated December 2, 2002, defendant informed the an application to take additional discovery at this conference.

Court of a number of discovery deficiencies by plaintiff. Id. at 23-27. I denied that request based on plaintiff's history

Specifically, defendant alleged that Mr. Mitchell 1) failed to of non-compliance with court-ordered discovery schedules

produce a plaintiff's witness on a court-ordered deposition and ordered discovery closed, except for that which had

date and failed to take a deposition of a defense witness; 2) already been scheduled. Id. at 27-28. Citing a number of

failed to comply with an aspect of my order of October 8, 2002 specific instances, I noted that the “vast majority of these

directing plaintiff to provide Ms. Carey updated information deadline problems and scheduling problems were the result of

concerning plaintiff's medical doctors; 3) failed to provide plaintiff's failure to comply with court-ordered deadlines .” Id.

authorizations for defendant to obtain the records of two

medical practitioners newly identified by plaintiff; 4) failed By letter dated February 24, 2003 defendant wrote to the

to provide an expert report by plaintiff's expert economist, Court concerning plaintiff's failure to comply with my

costs by the date I had ordered, 2) failed to deliver a 17, 2003. At that time, defendant reported to the Court that

complete set of deposition transcripts timely, 3) failed to Mr. Mitchell had failed to provide all of the outstanding

produce a complete expert report from Dr. Tinari, plaintiff's discovery required by the Court. On May 5, 2003, plaintiff

economist, by the January 10, 2003 deadline or to produce did produce some additional discovery materials. Pl.'s Letter

Tinari for deposition on the scheduled date, and 4) failed to dated May 5, 2003, Docket Entry 69. However, as defendant

provide updated information concerning plaintiff's medical pointed out, Tinari's expert report failed to provide full case

providers. I subsequently ordered Mr. Mitchell to pay double names and docket numbers when listing the prior cases in

the deposition reimbursement expenses because he failed which Tinari had testified. Tr. of June 17, 2003, Docket

to remit payment timely to defendant as required by my Entry 78, at 11-15. Although Mr. Mitchell argued that he

December 20th ruling. Tr. of Mar. 14, 2003, Docket Entry 67, should not be required to provide the information because

at 20. Tinari did not have it, Judge Trager ordered Mr. Mitchell

to provide the full names of the clients on whose behalf

Tinari testified. Id. at 14-15. Lastly, Judge Trager ordered Mr.

9. Upon plaintiff's appeal of my discovery rulings, Judge Mitchell to provide all outstanding discovery and denied Mr.

Trager granted plaintiff additional time, but plaintiff again Mitchell's application for additional discovery until plaintiff's

failed to make disclosures required by the Court. own discovery obligations were fulfilled. Id. at 23.

On February 28, 2003, plaintiff filed objections to my

December 20, 2002 discovery orders pursuant to Federal

Rule of Civil Procedure 72. Docket Entry 56. United States 10. Plaintiff failed to move the case forward from June,

District Judge David G. Trager heard argument on plaintiff's 2003 to February, 2005.

objections and concluded that my rulings were “certainly Following the June, 2003 conference, this case failed to

within [my] discretion” and “clearly ... proper.” Tr. of Apr. 11, progress any further. No activity is reflected in the Court's

2003, Docket Entry 68, at 3, 10. Although plaintiff contended records until March 11, 2004, when Mr. Mitchell wrote to

that the events of September 11, 2001 were a significant factor Judge Trager requesting that he be permitted to proceed with

in his missed deadlines and delays, Docket Entry 56, the discovery. Docket Entry 74. In response, Ms. Carey asserted

record reflects that discovery was extended in the months that she still had not received all outstanding discovery,

following September 11th, granting the parties at first an including in particular the case names for the Tinari report

additional five months to April 19, 2002, and ultimately until and certain tax returns that Judge Trager ordered plaintiff

December 20, 2002. Docket Entries 32, 33, 48. Finally, as to produce at the April and June conferences the prior year.

Judge Trager noted during oral argument on plaintiff's motion, Docket Entry 75. At this juncture, plaintiff's counsel asked to

plaintiff failed to comply with court orders on four occasions be relieved of his obligation to provide the case names for

prior to September 11, 2001. Tr. of Apr. 11, 2003, Docket the Tinari report, arguing that doing so was too burdensome.

Entry 68, at 6. Docket Entry 76. Additionally, Mr. Mitchell requested that

he be allowed to present at trial the testimony of Correa and

*5 Nevertheless, Judge Trager granted plaintiff until June Watkins, even though he had long ago failed to comply with

17, 2003 to provide defendant with certain additional court-ordered dates for their depositions which were set on

documents and information concerning her economic expert, pain of preclusion. Id. Indeed, Mr. Mitchell had represented

Tinari. Id. at 32. Judge Trager also affirmed my March 14th he would not seek to call Correa as a trial witness when he

order doubling the deposition costs, imposed as a sanction, cancelled Correa's deposition the day before it was scheduled

with the caveat that Mr. Mitchell did not have to pay the to proceed. Id. Plaintiff also sought leave to present the

additional doubled amount if he fully responded to all of testimony of unnamed “other witnesses” who were never

the outstanding document demands by June 17th. Id. at 35. previously identified in this case but apparently were deposed

Lastly, Judge Trager warned he was “not going to let this thing in another discrimination case against Con Ed brought by a

drag out much longer.... If [Mr. Mitchell] hasn't [produced the plaintiff named Perez. Id.

requested documents] by June 17th, you can assume that he

will walk away.... [To Mr. Mitchell:] [t]his is your last shot.” *6 Even after plaintiff's informal letters to Judge Trager

Id. at 30, 32. went unanswered by the Court, plaintiff failed to make any

type of formal motion for relief. On November 19, 2004, I

Court dated December 13, 2004, Ms. Carey indicated that she Metro. Hockey Club, Inc., 427 U .S. 639, 643, 96 S.Ct. 2778,

had not heard from plaintiff since the June, 2003 conference, 2781 (1976). A dismissal triggered by an attorney's actions

almost eighteen months prior, except for the two letters to or inaction imposes a severe consequence on a plaintiff.

the Court received eight months earlier. During the status Nevertheless, the Supreme Court has recognized dismissal

conference held on December 20, 2004, counsel for defendant as a just sanction for counsel's irresponsible conduct. Link

asserted that she never received signed authorizations for tax v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386,

returns from plaintiff despite having sent authorization forms 1390 (1962) (“Petitioner voluntarily chose this attorney as

over a year ago. Tr. of Dec. 20, 2004, Docket Entry 81, at 4. his representative in the action, and he cannot now avoid the

Mr. Mitchell responded that plaintiff sent the authorizations consequences of the acts or omissions of this freely selected

to defendant and he did not hear any further from defendant agent.”).

concerning the tax documents. Id. at 5. Ms. Carey also stated

that she never received the additional information concerning *7 The Second Circuit has set forth five factors to be

Dr. Tinari's prior cases. Id. Mr. Mitchell acknowledged that he considered when determining whether the circumstances of a

had not provided the additional information ordered by Judge particular case warrant the severe sanction of dismissal under

Trager, but reaffirmed his statement that Dr. Tinari did not Rule 41(b):

have the information. Id. at 5-6. Based on plaintiff's repeated

failures to comply with court orders to move this case forward

and the burdens and expense imposed on defendant as a result, (1) the duration of plaintiff's failures;

I granted defendant leave to file a motion to dismiss for failure (2) whether plaintiff had received

to prosecute or, in the alternative, a motion to preclude certain notice that further delays would result

discovery and evidence at trial. Id. at 6-7. As of February 28, in dismissal; (3) whether defendant

2005, the date defendant filed its motion to dismiss, defendant is likely to be prejudiced by further

still had not received plaintiff's federal tax documents or the delay; (4) whether the district judge

completed expert report.3 has carefully balanced the need to

alleviate court calendar congestion and

a party's right to due process; and

(5) whether the court has assessed the

DISCUSSION

efficacy of lesser sanctions.

A. Dismissal

The Federal Rules of Civil Procedure provide for dismissal

of an action where a party fails to obey a pretrial scheduling Peart v. City of New York, 992 F.2d 458, 461 (2d Cir.1993),

order or fails to obey an order to provide discovery. See quoting Romandette v. Weetabix Co., Inc., 807 F.2d 309,

FED.R.CIV.P. 16(f); FED.R.CIV.P. 37(b)(2); FED.R.CIV.P. 312 (2d Cir.1986). No one factor is dispositive, and the

41(b). Similarly, under Federal Rule 41(b), a defendant may appropriateness of dismissal must be viewed in light of the

move to dismiss an action or claim “[f]or failure of the record as a whole.4 Drake v. Norden Sys., Inc., 375 F.3d 248,

plaintiff to prosecute or to comply with these rules or any 254 (2d Cir.2004).

order of court.” Failure to prosecute “can evidence itself either

in an action lying dormant with no significant activity to move

it or in a pattern of dilatory tactics,” which may consist of 1. Duration ofPlaintiff's Failures

“repeated requests for continuances or persistent late filings This factor consists of two parts: a) whether the delay was

of court ordered papers.” Lyell Theatre Corp. v. Loews Corp., caused by plaintiff and b) whether the delay was of significant

682 F.2d 37, 42 (2d Cir.1982). duration. See Martens v. Thomann, 273 F.3d 159, 180 (2d

Cir.2001).

Dismissal is an extreme remedy and warranted only under the

most egregious circumstances. See Minnette v. Time Warner, The record amply demonstrates that plaintiff was the cause

997 F.2d 1023, 1027 (2d Cir.1993). In severe cases, however, of extensive delays in this case. The discovery deadline was

dismissal may be appropriate not only to penalize an attorney extended several times to give plaintiff additional time to

after the November, 2000 deadline passed, the discovery • Def.'s Letter dated Sept. 10, 2002 (informing the Court

deadline was adjourned without date after defendant notified that defendant had not been able to speak to Mr. Mitchell

me that plaintiff had failed to answer interrogatories served to schedule depositions)

nine months ealier.5 Def.'s Letter dated Feb. 6, 2001. The

• Def.'s Letter Sept. 20, 2002 (same),

discovery extension on June 1, 2001 was granted to provide

plaintiff additional time to depose witnesses. Docket Entry • Docket Entry 43 (scheduling by the Court of deposition

30. Mr. Mitchell requested the seventh discovery extension dates),

on April 22, 2002, three days after the discovery cut-off date.

Docket Entry 32. • Def.'s Letter dated Dec. 2, 2002 (reporting that Mr.

Mitchell failed to produce a witness for deposition and

Plaintiff was repeatedly granted substantial discovery failed to take a deposition),

extensions but to no avail in actually completing discovery

• Tr. of Dec. 20, 2002, Docket Entry 49, at 16 (noting that

in an efficient and expeditious manner. From February of

the Austin deposition had been rescheduled numerous

2001 to April of 2003, depositions repeatedly failed to go

times and that plaintiff's expert report was past due) and

forward due to Mr. Mitchell's scheduling conflicts and other

failures. The record reflects the following delays, among • Docket Entry 55 (requesting additional time to produce

others, caused by Mr. Mitchell: expert for deposition when the deadline for the

deposition was the following day and the scheduled date

• Def.'s Letter dated Feb. 6, 2001 (noting that Mr. Mitchell's

for the deposition was three days earlier).

failure to provide discovery was delaying the taking of

plaintiff's deposition) Although many of plaintiff's requests were made at the

eleventh hour or even after the deadline had passed, I granted

• Pl.'s Letter dated Apr. 22, 2002, Docket Entry 34 (noting

nearly every one of Mr. Mitchell's applications for additional

that Mr. Mitchell failed to appear for a deposition),

time. See, e.g., Docket Entries 24, 30, 34, 35, 40, 41, 48,

• Def.'s Letter dated May 29, 2002 (noting that Mr. Mitchell 55. But see Docket Entry 45 (denying plaintiff's application

cancelled two scheduled deposition days only two days to adjourn the court-ordered deposition scheduled for the

prior to the first scheduled date and failed to commit to following day) and Tr. of Dec. 20, 2002, Docket Entry 49, at

dates for remaining depositions) 27 (denying plaintiff's application to take additional discovery

and closing discovery). In sum, the record clearly reflects that

• Docket Entry 36 (scheduling by the Court of deposition Mr. Mitchell was the cause of significant delay.

dates),

In contrast, defendant contributed minimally to the delays. It

• Docket Entry 38 (same), is true that some of the discovery extensions were requested

or at least consented to by defendant. See Def.'s Letter

• Pl.'s Letter dated July 11, 2002, Docket Entry 39

dated Nov. 16, 2000; Docket Entries 31, 32, 42. I note

(requesting to change the deposition schedule three days

that these extensions were early in the case and were

before the first scheduled deposition because he had

minor and isolated incidents. At least one of defendant's

transposed deposition dates and witnesses),

requests for an extension was necessitated by plaintiff's

*8 • Pl.'s Letter dated July 17, 2002 (withdrawing witness failure to comply with discovery demands and orders. See,

the day before the scheduled deposition) e.g., Def.'s Letter dated Sept. 10, 2002, Docket Entry 42.

Mr. Mitchell, of course, evidenced a serious “pattern of

• Pl.'s Letter dated Aug. 6, 2002 (cancelling a deposition dilatory tactics” beginning around April of 2002. See, e.g.,

due to Mr. Mitchell's unavailability and notifying the Docket Entries 34-43, 45, 46, 48, 55, 59. As discussed

Court and defendant of three new witnesses to be throughout, plaintiff, not defendant, is substantially at fault

deposed), for the appreciable delays in this case. See Peart, 992 F.2d

at 461 (affirming dismissal after finding plaintiff's counsel's

behavior “particularly egregious” for failing to comply with

responsible for many delays”). discovery in issue. Mr. Mitchell was first put on notice in

February of 2003 that required information from Tinari and

Plaintiff's argument that defendant Con Ed contributed to the various documents concerning his expert report had not been

delay in this case and her reliance on Jackson v. City of New produced. Def.'s Letter dated Feb. 24, 2003. Judge Trager

York, 22 F.3d 71 (2d Cir.1994), is misguided. In Jackson, twice ordered plaintiff to perfect Tinari's expert report and

the Court found “no instance on the record in which the provide defendant with her tax returns. Tr. of Apr. 11, 2003

delays were caused solely by the actions of [plaintiff] or her at 30, 32; Tr. of June 17, 2003 at 14-15. As of today's date,

attorney.” 22 F .3d at 75. Unlike Jackson, there are numerous plaintiff has still not fully complied with these discovery

instances here where delays were caused solely by plaintiff. obligations. Indeed, in a letter dated January 19, 2005, Mr.

In arguing that defendant was also responsible for delays, Mitchell indicated that it would take several months to receive

plaintiff cites only to a single example involving a conference copies of Ms. Barney's tax returns but that he would forward

held on April 27, 2001. Plaintiff's Memorandum of Law them to Ms. Carey as soon as he received them. As of May

Opposing Defendant's Motion to Dismiss (“Pl.'s Mem.”) p. 7. 15, 2006, Ms. Carey still has not received the official IRS tax

At this conference, plaintiff contended that defendant failed returns. Def.'s Letter dated May 15, 2006, Docket Entry 91,

to provide responses to discovery demands and refused to at 1.

produce certain witnesses for deposition the following week.

Ms. Carey explained, however, that she failed to provide Plaintiff's dilatory conduct over several years warrants

the requested discovery only because she never received dismissal. See Lyell Theatre Corp., 682 F.2d at 42-43

plaintiff's discovery demands and deposition notices. Def.'s (affirming dismissal of case involving two years of inactivity

Letter dated Apr. 27, 2001. See also Tr. of Apr. 11, 2003, and seven years of dilatory conduct); Drake, 375 F.3d at 255

Docket Entry 68, at 7-9. Moreover, the April 27, 2001 (finding that delay of seventeen months was “significant” but

conference was instigated by Mr. Mitchell's untimely request dismissal not warranted for other reasons); Europacific Asset

to adjourn plaintiff's deposition, which was in plain violation Mgmt. Corp. v. Tradescape Corp., 2005 WL 3182528, at *6

of my February 21st order that plaintiff's deposition could not (S.D.N.Y. Nov. 29, 2005) (noting that courts have frequently

be rescheduled absent stipulation by the parties and notice found delays of less than two years “unreasonable”). In

to the court at least two weeks prior to the deposition. See particular, Mr. Mitchell's nearly complete lack of activity

Pl.'s First Letter of Apr. 27, 2001. Thus, plaintiff's argument during the eighteen months following the conference before

that defendant is also responsible for the delays in this case is Judge Trager in June, 2003-a period of inactivity that might

completely lacking in merit. still be ongoing had this Court not convened a conference sua

sponte-favors dismissal.

*9 The delays caused by plaintiff were also significant in

length. The original discovery deadline was June 30, 2000.

Two and a half years later, after countless extensions, I 2. Notice

ordered discovery finally closed December 20, 2002. At the Plaintiff had ample notice that further delay and failure to

time the instant motion was filed in February of 2005, this comply with orders could result in dismissal of the case. At a

case was six years old. Yet Mr. Mitchell argued then, as he conference on April 25, 2002, I warned that failure to produce

does now, that he still needs additional discovery. See Pl.'s witnesses for depositions could result in a recommendation of

Mem. pp. 8-9; Pl's Letter dated May 11, 2006, Docket Entry dismissal. The depositions did not go forward as scheduled,

90. If Mr. Mitchell had conducted discovery with any degree yet I granted Mr. Mitchell additional time to complete

of diligence, he would undoubtedly have realized the need for discovery. At the April 25, 2003 conference, Judge Trager

additional discovery much earlier in the case and all discovery indicated that dismissal for failure to prosecute would be

could have been completed long ago. I made this point to appropriate if Mr. Mitchell did not provide the requested

plaintiff's counsel years ago. See Tr. of Dec. 20, 2002 at 28. documents by June 17, 2003. See Tr. of Apr. 11, 2003,

Yet even now, this case is not fully discovered. Docket Entry 68, at 32 (“If [Mr. Mitchell] hasn't [produced

the requested documents] by June 17th, you [defendant's

Moreover, Mr. Mitchell's repeated failures to provide a attorney] can assume that he [plaintiff's attorney] will walk

complete expert report from Dr. Tinari and the tax returns away.... This is your last shot.”). These warnings from the

sought by defendant have led to a substantial delay and Court were sufficient to put plaintiff on notice dismissal

further delay.6 See Link, 370 U.S. at 632-33, 82 S.Ct. deadlines because he is a solo practitioner. See, e.g., Docket

at 1389-90 (noting that a Rule 41(b) dismissal does not Entries 39, 40; Tr. of Dec. 20, 2002 at 11; Tr. of Apr. 11,

require prior notice or a hearing); Jackson, 22 F.3d at 75-76 2003 at 3. And there is simply no excuse for his failure to

(suggesting that one warning may be sufficient to provide communicate with opposing counsel to schedule depositions.

notice, depending upon the circumstances of the case). See Def.'s Letters dated May 29, 2002 and Sept. 20, 2002;

Docket Entries 37, 42. Lastly, plaintiff's only argument for

*10 Moreover, defendant also put Mr. Mitchell on notice of the delay in not providing the expert discovery is that he

the risk of dismissal for failure to prosecute. Defendant first should be relieved of his obligation to do so because it is a

requested that the case be dismissed for plaintiff's failure to burdensome request. Pl.'s Mem. p. 2. Judge Trager implicitly

comply with discovery orders in June of 2002. Def.'s Letter rejected this argument, as do I. See discussion infra pp. 23-25.

dated June 10, 2002, Docket Entry 37. In February of 2003, In sum, the lengthy and inexcusable delay in this case leads

defendant again requested that this case be dismissed for to a presumption of prejudice.

discovery violations. Def .'s Letter dated Feb. 24, 2003. And

clearly, Mr. Mitchell was put on notice at the December 20, *11 Moreover, the Second Circuit has noted that defendants

2004 conference where I granted defendant's leave to file the “have an interest in prompt resolution of suits in which

instant motion. Finally, he was put on notice when defendant they have been named, particularly where ... racial bias

filed the instant motion. See Stoenescu v. Jablonsky, 162 is alleged.” Copeland v. Rosen, 194 F.R.D. 127, 132

F.R.D. 268, 271 (S.D.N.Y.1995) (filing of motion to dismiss (S.D.N.Y.2000) (“Copeland I”), remanded by 25 Fed. Appx.

put plaintiff on notice). Yet he has not, even to this date, 17 (2d Cir.2001), after remand Copeland v. Rosen, 208 F.R.D.

complied with all outstanding discovery orders. 507 (S.D.N.Y.2002) (“Copeland II ”). As in Copeland, Con

Ed has a significant interest here in prompt resolution of this

In short, Mr. Mitchell has been on notice for at least three case, in which racial bias and other forms of discrimination

years that this case was at risk of dismissal. If he had provided have been alleged.

the documents and information as ordered by the Court at any

time over the course of the last three years, dismissal might Furthermore, defendant has been prejudiced in fact.

indeed be too harsh a sanction. Mr. Mitchell, however, has Defendant notes that two of the Con Ed employees involved

failed to take the necessary steps to avoid dismissal, despite in this litigation have since retired and now reside out of

ample opportunity to do so. Cf. Drake, 375 F.3d at 255-56 state. Def.'s Mem. p. 7. Moreover, the events underlying

(finding inter alia that the district court abused its discretion this litigation occurred six to ten years ago and undoubtedly

in dismissing the case because plaintiff had no opportunity memories have faded and documents have been lost. Id.

to cure the deficiency prior to dismissal). In sum, plaintiff See Shannon v. Gen. Elec. Co., 186 F.3d 186, 194-95 (2d

has repeatedly refused to comply with court orders even after Cir.1999) (finding a substantial likelihood that evidence

notice that this case might be dismissed. This factor weighs had become unavailable and witnesses' recollections had

in favor of dismissal. diminished because the events occurred more than a decade

before dismissal); White v. Mitchell, 2005 WL 775899, at

*3 (E.D.N.Y. Apr. 6, 2005) (finding prejudice where the

3. Prejudice events occurred over five years prior to the dismissal). In

“Prejudice may be presumed as a matter of law ... addition, plaintiff's delays and failures to abide by court

[depending] on the degree to which the delay was lengthy orders have caused defendant to incur substantial legal fees,

and inexcusable.” Drake, 375 F.3d at 256. See also Lyell particularly as a result of preparing for depositions that

Theatre Corp., 682 F.2d at 43 (“[I]n cases where delay is more failed to proceed as scheduled, making repeated applications

moderate or excusable, the need to show actual prejudice to the court, and attending numerous court conferences.

is proportionally greater.”). Plaintiff's “pattern of dilatory See LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 210

tactics” in this case has led to years of delay and a case that (2d Cir.2001) (recognizing that prejudice includes increased

is still not fully discovered. litigation costs); Peart, 992 F.2d at 462 (finding prejudice

where, inter alia, a party expends time and money preparing

The delay was also inexcusable. I find unacceptable Mr. a case). Indeed, a careful review of the docket sheet in this

Mitchell's routine attempts to excuse his non-compliance by action reveals that, as a result of plaintiff's conduct, defendant

and to attend at least the same number of court conferences.8 deposition or at trial. Such information

should be sufficient to allow a party

In contrast, a typical case of this magnitude might reasonably

to review the proceedings to determine

be expected to require two or three discovery letters and

whether relevant testimony was given.

three or four court conferences. Moreover, the activity on the

With this information, a party should

docket sheet does not, of course, reflect the many phone calls

be able to determine the type of claim

and letters Ms. Carey exchanged with Mr. Mitchell attempting

presented and locate any recorded

to move discovery forward.

testimony.

Defendant has also been prejudiced in preparing to defend

against plaintiff's economic expert. Mr. Mitchell first notified

defendant that he had retained Dr. Tinari on September 18, Cartier, Inc. v. Four Star Jewelry Creations, Inc., 2003 WL

2002-three and a half years into this litigation and seven 22227959, *2 (S.D.N.Y. Sept. 26, 2003), citing Nguyen v.

months after the original deadline for producing expert IBP, Inc., 162 F.R.D. 675, 682 (D.Kan.1995). The information

reports had expired. Def.'s Letter dated Sept. 20, 2002, at 2; provided by plaintiff did not include case numbers or the

Docket Entry 33. I then set a new deadline of November 8, names of the parties (other than the surname of one party).

2002 for Dr. Tinari's report. See Docket Entry 43. When even Although plaintiff has argued that Tinari does not have

that deadline was missed, I extended the time for Dr. Tinari's the necessary information and that it would be unduly

report to January 10, 2003, and recommended that Tinari's burdensome for plaintiff to obtain it, it is the duty of an expert,

testimony be precluded if the report were not provided to particularly one who routinely testifies, to keep records that

defendant by that date. Docket Entry 48. fully comply with Rule 26, and it is counsel's duty to ensure

that the expert he retains complies with the Federal Rules. See

*12 Plaintiff apparently did provide a report from Tinari Doblar v. Unverferth Mfg. Co., Inc., 185 F.R.D. 258, 261-62

on or about January 10, 2003. See Affirmation of Barbara (D.S.D.1999); Elgas v. Colorado Belle Corp., 179 F.R.D. 296,

Jane Carey (“Carey Aff.”), Docket Entry 71, ¶ 2 and Ex. 299-300 (D.Nev.1998). Moreover, the information plaintiff

1. Defendant has contended since the report was initially did produce included the name of each lawyer who had

produced that it was deficient in several respects. One of the previously retained Tinari as an expert, and there is no reason

deficiencies noted by defendant was that the report did not why Mr. Mitchell could not have contacted those attorneys to

include any information about other cases in which Tinari had obtain the required information.

testified as an expert witness. Such disclosure is, of course,

required by Federal Rule of Civil Procedure 26(a)(2)(B). Defendant emphasized the deficiencies in Tinari's report

during oral argument before Judge Trager on April 11, 2003

Apparently in response to defendant's complaints, plaintiff in connection with plaintiff's objections to my discovery

submitted additional materials, including some information orders. See Tr. of Apr. 11, 2003 at 16-18. Judge Trager

about Tinari's prior experience as an expert witness, on ordered plaintiff to provide all of the information requested

or about March 10, 2003. Carey Aff. Ex. 3. Even this by defendant, including the list of cases in which Tinari

information-in addition to being provided 60 days after the previously testified as an expert, within 30 days, and stated

final date for production of the Tinari report on pain of that plaintiff would have to “walk away” if the documents had

preclusion-was deficient, in that it listed only the date of the not been produced by the time of the next conference, which

report, the name and telephone number of the attorney for Judge Trager set for June 17, 2003. Id. at 18, 32. On June

whom it was prepared, the name of the judge and the court 17, 2003, upon learning that plaintiff had not provided the

where the case was heard, and plaintiff's gender and surname. additional information about Tinari's prior testimony, Judge

Id. Courts construing Rule 26(a)(2)(B) have held that Trager ordered plaintiff to provide, at a minimum, the full

names of the parties on whose behalf Tinari had testified. Tr.

of June 17, 2003 at 14-15. Plaintiff has yet to provide this

information and defendant persuasively argues that it has been

[t]he identification of ‘cases' at a

prejudiced as a result. Defendant's counsel affirms that she

minimum should include the courts

“attempted to locate the cases in which [Dr. Tinari] said he

or administrative agencies, the names

had testified, using Westlaw[, but her] search was both unduly

Support of Defendant's Reply, dated Mar. 30, 2005, ¶ 12. defendant.

*13 Defendant has also been prejudiced by plaintiff's failure Plaintiff's failures to comply with specific court orders, and

to obtain and provide all of her tax returns.9 Plaintiff seeks in particular those orders that warned of sanctions for failure

to hold defendant liable in damages for her termination. to comply, may be summarized as follows:

Defendant argues, among other things, that plaintiff was

• During a conference held on April 25, 2002, I set court-

collecting disability benefits during the period for which

ordered dates for depositions and warned that failure

she seeks to recover lost wages. Accordingly, plaintiff's

to take the deposition would constitute a waiver of

income tax returns-which should reflect any income earned or

that discovery and failure to produce a witness would

disability benefits received after being terminated by Con Ed-

result in sanctions, including dismissal or default. The

are highly relevant to plaintiff's claim for damages. Although

depositions did not go forward as ordered. At this

plaintiff finally provided tax “transcripts” in January, 2005

conference, I also precluded plaintiff from presenting

containing some income tax information, these documents do

any medical expert testimony at trial because of her

not appear to contain all of the details, such as sources of

failure to produce reports from her medical experts.

income, one would expect to find on an official tax return.

Additionally these documents are not signed by plaintiff and *14 • On June 21, 2002, I set court-ordered dates for

are therefore less useful than tax returns would be both as the depositions of three witnesses-Watkins, Correa, and

substantive evidence and for purposes of impeachment. Austin-and ordered that plaintiff would be precluded

from calling those witnesses at trial if he failed to

In sum, plaintiff has failed to negate the presumption of produce them on the scheduled dates. These depositions

prejudice, and the record demonstrates that defendant has did not go forward as ordered. Nevertheless, in April of

suffered substantial actual prejudice. This factor weighs 2004, Mr. Mitchell requested that he be allowed to call

heavily in favor of dismissal. as trial witnesses Watkins and Correa, who were never

deposed in this litigation. Docket Entry 76.

4. Balancing Court Congestion and Plaintiff's Due • On December 20, 2002, I ordered plaintiff to produce

Process Right his economic expert report by January 10, 2003 on pain

Plaintiff's right to an opportunity to be heard is significant of preclusion. Plaintiff failed to provide the complete

and weighs against dismissal. “There must be compelling expert report on time.

evidence of an extreme effect on court congestion before a

litigant's right to be heard is subrogated to the convenience • On April 11, 2003, Judge Trager ordered plaintiff to

of the court.” Lucas v. Miles, 84 F.3d 532, 535-36 (2d provide certain discovery by June 17, 2003 or “walk

Cir.1996) (dismissal not warranted on pro se case pending away.” Mr. Mitchell failed to provide all of the ordered

for twenty-two months), cited in LeSane, 239 F.3d at 210. discovery.

As noted above, Judge Trager and I have been called upon

to resolve a remarkable number of disputes, and to grant • On June 17, 2003, Judge Trager ordered plaintiff to

extensions countless times, in this relatively straightforward provide the first names of the parties on whose behalf her

case. Having said this, though, this factor weighs against economic expert previously testified. Plaintiff has failed

dismissal because an adjudication on the merits would be to provide defendant with any additional information

preferable. concerning Dr. Tinari's prior testimony.

As summarized above, the Court has warned of and has in

5. Consideration of Lesser Sanctions fact imposed lesser sanctions, but with no effect upon Mr.

I have considered but decline to recommend imposing Mitchell's willingness to follow this Court's discovery orders.

lesser sanctions in this case for two reasons. First, plaintiff To the contrary, Mr. Mitchell's attitude towards compliance

has repeatedly failed to comply despite warnings that appears unchanged. Moreover, a cursory review of cases in

lesser sanctions would be imposed and even despite the the Eastern District of New York suggests that Mr. Mitchell

imposition of lesser sanctions. Second, no sanction short of has repeatedly received warnings and lesser sanctions over

behalf of his clients.10 Thus, any sanction short of dismissal a plaintiff's delay, this factor speaks

would not sufficiently penalize Mr. Mitchell for his serious strongly in favor of dismissal, and may

“pattern of dilatory tactics” in this case and would not well override the hardship to plaintiff.

likely prompt compliance with the Court's orders. See, e.g.,

Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 666 (2d

Cir.1980) (affirming dismissal “given [plaintiff's] complete Id. at 40-41 (emphasis added).

intransigence in the face of a clear court order”); Copeland II,

208 F.R.D. at 513 (dismissing case after finding “inexcusable Dismissal is warranted in this case because defendant has

delay and indifference” and noting that plaintiff's counsel suffered significant actual prejudice. See discussion supra

“continually failed to comply with [court] orders”). pp. 21-26. Cf. Tubner v. West, 1996 WL 1057149, at *7

(E.D.N.Y. Dec. 17, 1996) (finding that plaintiff's lawyer

In considering lesser sanctions, I am mindful of the Second disregarded her professional responsibilities and caused the

Circuit's caution to consider whether the party or counsel delay but denying dismissal because case was less than one

are at fault and to impose sanctions accordingly. Dodson v. year old and defendants had not suffered prejudice). Any

Runyon, 86 F.3d 37, 40 (2d Cir.1996). other sanction will not adequately redress this prejudice.

As discussed above, there is “no merit to the contention

that dismissal of petitioner's claim because of his counsel's

In deciding on the suitability of lesser unexcused conduct imposes an unjust penalty on the client.”

sanctions and whether the sanctions Link, 370 U.S. at 633, 82 S.Ct. at 1390. Nevertheless, Mr.

should be aimed primarily against Mitchell is hereby ordered to serve a copy of this Report

the party or the attorney, it can be and Recommendation on plaintiff and to provide proof of

important for the district court to service to the Court. In this way, plaintiff herself is put on

assess the relative roles of attorney notice that her case is about to be dismissed and she will

and client in causing the delay, as have an opportunity to be heard, if she chooses, before Judge

well as whether a tactical benefit was Trager decides whether to adopt the recommendations in this

sought by the delay.... [T]he more the report.11 See Dodson, 86 F.3d at 40, fn.4.

delay was occasioned by the lawyer's

disregard of his obligation toward his

client, the more this factor argues in 6. Record as a Whole

favor of a less drastic sanction imposed In sum, an analysis of the five factors identified in Peart

directly on the lawyer. supports dismissal for failure to prosecute. The record as a

whole amply demonstrates Mr. Mitchell's repeated failures to

comply with court orders and the significant delays which

occurred as a result. See Lyell, 682 F.2d at 43 (affirming

*15 Id. at 40. In this case, it appears that Mr. Mitchell,

dismissal in case that involved seven years of “commitments

and not his client, is the sole cause of the delay. The Second

not honored, delinquent inactivity, adjournments and delay,”

Circuit, however, did not rule out dismissal even based upon

including two years of inactivity, and noting that “[w]e have

an attorney's actions where those actions cause a defendant

affirmed dismissals in cases far less egregious than this”);

significant prejudice.

Copeland I, 194 F.R.D. at 127 (finding that “dismissal [wa]s

warranted by counsel's chronic delays and her disregard for

the orders of the Court” over the course of four years);

[A]t least absent prejudice, dismissal

Cognotec Servs. Ltd. v. Morgan Guar. Trust, Co., 1999 WL

for failure to prosecute is inappropriate

627411, at *2 (S.D.N.Y. Aug. 18, 1999) (dismissing case

where the fault clearly lay in the

involving five and one-half years of failure to adequately

lawyer's failure to attend to his

prosecute, including nineteen months of inactivity); Johnson

client's business, and the court failed

v. M. Melnick & Co., Inc., 1996 WL 239994, at *9 (S.D.N.Y.

to consider alternative sanctions....

May 8, 1996) (dismissing case after plaintiff engaged in

[W]here opposing parties are found to

“a pattern of dilatory tactics” for four years, including the

to remedy his conduct”). Here the record reflects six years to the final discovery conference I held on December 20,

of dilatory conduct by plaintiff despite the repeated threat 2002.12

of lesser sanctions and even the threat of dismissal. Mr.

Mitchell requested and was granted dozens of extensions In addition, I respectfully recommend 1) that defendant

and adjournments to no avail in completing his discovery, be allowed to re-open plaintiff's deposition for the limited

failed to produce witnesses for depositions, failed to appear purpose of inquiring about plaintiff's Social Security file, 2)

to take depositions, cancelled depositions at the last minute, that discovery be otherwise closed 3) that Mr. Mitchell be

failed to communicate with defendant's counsel, and failed directed to pay forthwith double the reimbursement amount

to provide an adequate expert report in a timely fashion. he untimely paid to defendant, and 4) that defendant be

Mr. Mitchell's habitual defiance is astounding considering the awarded the attorney's fees and costs it incurred making this

repeated extensions of time he was given to comply with this motion.

Court's orders.

*16 Based on the record as a whole, which clearly CONCLUSION

demonstrates a serious pattern of discovery violations by

plaintiff causing significant delay, I respectfully recommend For all these reasons, I respectfully recommend that

dismissal for failure to prosecute pursuant to Federal Rule defendant's motion to dismiss be granted. In the alternative, I

41(b). recommend the lesser sanctions set forth in the two preceding

paragraphs.

Dismissal would also be an appropriate sanction under Rule

37(b)(2)(C). See Altschuler v. Samsonite Corp., 109 F.R.D. Any objections to the recommendations made in this Report

353, 356 (E.D.N.Y.1986) (recommending a default judgment must be filed with the Clerk of the Court and the Chambers of

pursuant to Rule 37 “because of [defendant's] consistent the Honorable David G. Trager within ten days of receiving

failure to cooperate in this litigation in good faith and to obey this Report and Recommendation and, in any event, on or

a discovery order of which it had proper notice”). Indeed, before August 7, 2006. In order to give Ms. Barney an

courts consider the same factors applicable to Rule 41(b) opportunity to be heard before her case is dismissed, I direct

when considering dismissal pursuant to Rule 37. See Banjo that Mr. Mitchell provide a copy of this Report to his client

v. United States, 1996 WL 426364, at * 5 (S.D.N.Y. July 30, and provide proof of service to this Court. Failure to file

1996). timely objections may waive the right to appeal the District

Court's Order. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a),

6(e), 72; Small v. Secretary of Health & Human Servs., 892

B. Preclusion F.2d 15, 16 (2d Cir.1989).

If my recommendation that this case be dismissed is not

adopted, I respectfully recommend in the alternative that

plaintiff be precluded from calling Dr. Tinari as an expert All Citations

witness at trial, be precluded from offering expert testimony

from any medical doctor or other expert witness, and be Not Reported in F.Supp.2d, 2006 WL 4401019

precluded from calling Correa, Watkins, or any other fact

Footnotes

1 Letters referenced by date without a Docket Entry number were submitted by counsel to chambers but never

filed with the Court. All are available in the Court's chambers file.

2 As discussed below, in April of 2004, plaintiff sent a letter to United States District Judge David G. Trager

seeking to offer Correa and Watkins “and other witnesses [who were deposed] in the Perez [v. Consolidated

the discovery period. Pl.'s Letter dated Apr. 2, 2004, Docket Entry 76. The Correa and Watkins depositions

were court-ordered at the June 21, 2002 conference on pain of preclusion. Mr. Mitchell cancelled both of

these depositions at the last minute. Moreover, Mr. Mitchell was on notice of Correa as a potential witness

even before he began representing Ms. Barney. Indeed, Mr. Mitchell represented Correa in her own litigation

against Con Ed. Correa v. Consolidated Edison Co. of New York, 98-CV-4450 (JG) (E.D.N.Y.). If Judge

Trager does not adopt my recommendation to dismiss this case, I respectfully recommend that plaintiff be

precluded from calling Correa, Watkins, or any other Perez witnesses at trial.

3 By letter dated January 19, 2005, plaintiff provided defendant with tax “transcripts” and indicated that she

would forward copies of the actual submissions once she received them. According to the submissions

attached to the January 19th letter, Mr. Mitchell requested the transcripts December 28, 2004. I note that

Mr. Mitchell apparently did not make the request to the Internal Revenue Service until almost six years

into discovery, even though plaintiff's claim included economic damages and his economic damages expert

apparently reviewed plaintiff's tax returns. As of March of 2006, plaintiff still had not provided any additional

tax documents to defendant. Docket Entry 88. Although plaintiff did produce some additional tax documents

on March 29, 2006, defendant continues to assert that these documents are insufficient because they are

not copies of official IRS tax returns and many were not signed by Ms. Barney. Docket Entries 90, 91.

4 Moreover, a court may consider the merits of the action when determining whether dismissal is appropriate.

See Dosunmu v. U.S., 361 F.Supp.2d 93, 99-100 (E.D.N.Y.2005). Although I do not give it much weight, I

briefly note that defendant has raised a serious question as to whether plaintiff's claim for damages has merit.

Def.'s Mem. p. 5. Plaintiff was discharged from Con Ed on September 10, 1998. Defendant has apparently

developed evidence that Ms. Barney began receiving Social Security disability benefits based on a claim that

she was unable to work because of a disabling condition beginning September 10, 1998. See Tr. of Mar. 14,

2003, at 7-11. It seems unlikely that plaintiff could receive damages for lost pay and pension benefits in this

case, arguing that she could have continued working at Con Ed, and could at the same time receive Social

Security benefits by claiming that she could no longer work due to a disability during the same time period.

5 Absent a court order or stipulation to the contrary, interrogatory answers are due thirty days after the service

of the interrogatories. FED.R.CIV.P. 33(b)(3).

6 Mr. Mitchell is only too familiar with the sanctions of preclusion and dismissal under Federal Rules 37 and

41. See, e.g., Smalls v. Port Auth. of New York and New Jersey, 120 Fed. Appx. 396 (2d Cir.2005) (involving

same plaintiff's counsel and affirming dismissal for failure to prosecute); Waters v. New York Univ. Med. Ctr.,

04-CV-3174 (ERK) (E.D.N.Y. June 30, 2006) (dismissing action for failure to prosecute and to comply with

court orders after warning Mr. Mitchell twice that he risked dismissal); Moore v. Consolidated Edison Co. of

New York, CV-00-7384 (PAC) (March 8, 2006) (granting same plaintiff's counsel additional time to complete

interrogatory responses after outlining plaintiff's extensive delays and extension requests, sanctioning Mr.

Mitchell in the amount of $500 for the most recent delay, and warning plaintiff's counsel that future untimely

submissions may lead to dismissal); Butler v. Acosta, CV-01-4347 (CBA) (E.D.N.Y. July 16, 2003) (dismissing

case for failure to prosecute with same plaintiff's attorney); Carr v. Queens-Long Island Med. Group, P.C.,

2003 WL 169793 (S.D.N.Y. Jan. 24, 2003) (finding a “pattern of disregard for discovery obligations” and

sanctioning Mr. Mitchell the expenses incurred by defendants in their contempt motion); Evans v. Port Auth. of

New York and New Jersey, 201 F.R .D. 96 (S.D.N.Y.2001) (precluding same plaintiff's counsel from offering

any evidence from 75 persons belatedly identified).

7 Docket Entries 37, 42, 54, 60, 70-71, 75, and 77 and letters not docketed dated February 6, 2001, February

12, 2001, April 27, 2001, May 29, 2002, July 8, 2002, September 20, 2002, December 2, 2002, December

4, 2002, February 24, 2003, and March 10, 2003.

36, 38, 41, 43, 45, and 48), and three were held before Judge Trager (Docket Entries 51, 66 and 73).

9 There is a factual dispute as to whether plaintiff provided the signed tax authorizations to defendant back in

July of 2003. It is clear, however, that defendant advised plaintiff in early 2004 that it had not received the

authorizations and that plaintiff did nothing to rectify it. Docket Entry 75.

10 Indeed, a review of cases in this district indicates that Mr. Mitchell's conduct in this case is no aberration.

See, e.g., Reed v. Prospect Gardens, 97-CV-2889 (DGT) (Docket Entry 6) (warning of preclusion if plaintiff's

counsel failed to submit timely expert report); Thelusma v. New York City Bd. of Educ., 02-CV-4446 (FB)

(Docket Entry 8) (noting a failure to appear at a prior conference, granting discovery extensions and noting

that “plaintiff has not proceeded diligently in this case, the fault appears to lie with counsel,” sanctioning Mr.

Mitchell for failing to appear at his client's deposition, and noting that “plaintiff's counsel has not heeded prior

deadlines”); Douglas v. Bovis Lend Lease LMB, Inc., 02-CV-5304 (ARR) (Docket Entry 14) (ordering plaintiff

to provide discovery on pain of sanctions); Lloyd v. Interfaith Nutrition Network, 03-CV-178 (ADS) (Docket

Entry 18) (ordering plaintiff to produce requested discovery, which was due more than 90 days prior, and

warning plaintiff that failure to comply could result in sanctions); Armstrong v. Brookdale Univ. Hosp. and

Med. Ctr., 02-CV-5017 (CPS) (Docket Entries 12, 28) (ordering Mr. Mitchell on two separate occasions to

show cause why the case should not be dismissed for failure to prosecute); Armstrong (Docket Entry 26)

(ordering Mr. Mitchell to show cause why he should not be sanctioned for his failure to comply with a court

order to provide releases and his failure to appear at a conference).

11 By letter dated May 8, 2006, Ms. Barney wrote to the Court inquiring of the status of the motion and stating

that “Mr. Mitchell and I have fulfilled all [discovery] requests including sending Con Edison copies of all my

tax returns.” Although it is clear that she is aware of the pending motion to dismiss, it does not appear that

she is fully aware of the court's past efforts to move this case forward or of the degree to which her own

attorney's actions are responsible for the substantial delays.

12 Federal Rule of Civil Procedure 37(b) provides that

if a party ... fails to obey an order to provide or permit discovery, the court ... may make such orders

in regard to the failure as are just, [including] ... (B) An order refusing to allow the disobedient party to

support or oppose designated claims or defenses, or prohibiting that party from introducing designated

matters in evidence.

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

1996 WL 172699 address changes. As the Fifth Circuit has stated:

Only the Westlaw citation is currently available.

United States District Court, N.D. New York.

It is neither feasible nor legally

Kevin DANSBY, Plaintiff, required that the clerks of the district

v. courts undertake independently to

ALBANY COUNTY CORRECTIONAL maintain current addresses on all

FACILITY STAFF, Defendant. parties to pending actions. It is

incumbent upon litigants to inform

No. 95-CV-1525 (RSP/RWS). the clerk of address changes, for

| it is manifest that communications

April 10, 1996. between the clerk and the parties

or their counsel will be conducted

Attorneys and Law Firms principally by mail. In addition to

keeping the clerk informed of any

Kevin Dansby pro se.

change of address, parties are obliged

to make timely status inquiries.

Address changes normally would be

ORDER reflected by those inquiries if made in

writing.

POOLER, District Judge.

*1 In an order and report-recommendation dated December

8, 1995, Magistrate Judge Smith noted that Dansby had Perkins v. King, No. 84-3310, slip op. at 4 (5th Cir. May 19,

not signed the complaint he filed to commence this action. 1985) (citing Williams v. New Orleans Public Service, Inc.,

Magistrate Judge Smith directed Dansby to submit an 728 F.2d 730 (5th Cir. 1984); Wilson v. Atwood Group, 725

affidavit which contained all of the representations delineated F.2d 255 (5th Cir. 1984) (en banc)); see Wehlen v. Foti et al.,

in Fed.R.Civ.P. 11(b) with respect to his complaint. The 1987 W.L. 8039, at *1-2 (E.D.La. 1987); see generally Rule

magistrate judge recommended dismissal of Dansby's action 41.2(b) of the Local Rules of Practice for the Northern District

if Dansby failed to comply with the terms of the report- of New York.

recommendation within forty-five (45) days from the date of

the service. This matter cannot proceed without Dansby filing the

affidavit described above or notifying the court of his current

On December 12, 1995, a copy of the report-recommendation address. Therefore, it is hereby

was served on Dansby by regular mail to his last known

address, the Albany County Jail. On December 22, 1995, the ORDERED, that this action is dismissed. See Rules 5.4(b)(4)

jail returned the report-recommendation marked “Return to and 41.2(b) of the Local Rules of Practice for the Northern

Sender -- No Forwarding Order on File.” District of New York, and it is further

Rule 41(b) of the Federal Rules of Civil Procedure provides ORDERED, that the Clerk serve a copy of this Order on the

that a court may, in its discretion, dismiss an action based upon plaintiff by regular mail at his last known address.

the failure of a plaintiff to prosecute an action or comply with

any order of the court. Link v. Wabash R.R. Co., 370 U.S. 626, IT IS SO ORDERED.

629 (1962). The district court may exercise its discretion to

dismiss when necessary to achieve orderly and expeditious

disposition of cases. See Rodriguez v. Walsh, 1994 W.L. 9688, All Citations

at *1 (S.D.N.Y. 1994).

Not Reported in F.Supp., 1996 WL 172699

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2016 WL 2621796 Presently pending is defendants' motion to dismiss for failure

Only the Westlaw citation is currently available. to prosecute pursuant to Federal Rules of Civil Procedure

United States District Court, N.D. New York. (“Fed. R. Civ.P.”) 41 and 37. Dkt. No. 50. Plaintiff has not

responded to the pending motion. For the reasons set forth

Michelle A. LEBARRON, Plaintiff, below, is recommended that defendants' motion to dismiss for

v. failure to prosecute be granted.

WARREN COUNTY SHERIFF'S OFFICE, Nathan

H. York, James A. Lafarr, Marlo Barboza, Defendants.

I. Background

No. 1:13–CV–1572 (GTS/CFH)

| Plaintiff commenced this action on December 20, 2013 by the

Signed 04/06/2016 filing of a complaint and motion to proceed in forma pauperis.

See Compl., Dkt. No. 2. On March 5, 2014, defendant Ernest

Attorneys and Law Firms Barboza filed a motion to dismiss pursuant to Fed.R.Civ.P.

12(b)(6). Dkt. No. 13. On April 24, 2014, defendants

Michelle A. LeBarron, P.O. Box 1486, 5 Mast Court, Berlin,

Warren County Sheriff's Office, Nathan York, James LaFarr,

Maryland 21811, Plaintiff pro se.

Marlo Barboza, Michael Gates, Albert Mayday, Wayne

Lemire, Johnson Law Firm, P.O. Box 2485, 2534 Route 9, Farmer, Daniel Clifford, Michael Feldeison, Steven Farmer,

OF COUNSEL: GREGG T. JOHNSON, ESQ., BRADLEY Christopher Perilli, Michael Gordon, and Daniel Kelly filed

J. STEVENS, ESQ., Malta, New York 12020, Attorneys for a motion to dismiss pursuant to Fed.R.Civ.P. 12(b) and (c).

Defendants. Dkt. No. 22. Plaintiff filed opposition to the motion to dismiss.

Dkt. No. 29.

REPORT–RECOMMENDATION AND ORDER1 By Decision and Order dated May 13, 2015, the Court

dismissed with prejudice and without leave to amend the

CHRISTIAN F. HUMMEL, U.S. MAGISTRATE JUDGE following claims: (1) the individual County defendants

discriminated against her based on her gender in violation

*1 In this action plaintiff pro se Michelle A. LeBarron of Title VII; (2) the individual County defendants retaliated

(“plaintiff”) alleges that, between March 3, 2005, the date against her based on her filing of an EEOC complaint in

on which she filed a gender discrimination complaint with violation of Title VII; (3) defendant Warren County Sheriff's

the Equal Employment Opportunity Commission (“EEOC”) Office retaliated against her based on her filing of an EEOC

against the Warren County Sheriff's Office, and July 22, complaint; (4) County defendants deprived her of substantive

2011, the date on which she was terminated from her job due process in violation of 42 U.S.C. § 1983 and the

as a corrections officer, defendants discriminated against her Fourteenth Amendment to the Constitution of the United

based on her gender. Plaintiff further alleges that defendants States; (5) defendant York wrongfully released her closed

retaliated against her based on her filing of the EEOC disciplinary hearing charges and results to the media in

complaint and the fact that the complaint was resolved violation of Section 50–a of the New York State Civil Rights

in her favor in 2009. Dkt. No. 1 (“Compl.”). Since the Act; and (6) plaintiff's demand for punitive damages against

commencement of this action, there has been extensive defendant Warren County Sheriff's Office. Dkt. No. 33. The

motion practice, which resulted in the dismissal of many of Court conditionally dismissed without further order of the

the claims in the complaint. See Dkt. No. 33. This action is court, unless, within thirty days of the Decision and Order,

presently proceeding only on plaintiff's claims that defendant plaintiff filed an amended complaint to correct the defects

County Sheriff's Office discriminated against her based on her in the following claims: (1) defendant Trooper Barboza

gender in violation of Title VII, to the extent the claim is based retaliated against plaintiff based on her EEOC complaint (and

on events occurring after April 16, 2011, and that defendants internal complaints) in violation of 42 U.S.C. § 1983 and

York, LaFarr, and Marlo Barboza discriminated against her the First Amendment; (2) defendants County Sheriff's Office,

based on her gender in violation of 42 U.S.C. § 1983 and the Gates, Maday, Farmer, Clifford, Feldeison, Farmer, Perilli,

Fourteenth Amendment. Gordon, and Kelly discriminated against her based on her

Amendment; (3) defendant Warren County Sheriff's Office A copy of that text notice was served on plaintiff by regular

discriminated against her based on her gender in violation of mail. Id. The text notice, sent to the plaintiff at the address

Title VII, to the extent the claim is based on events occurring appearing on the Court docket, was returned to the Court as

before April 16, 2011; (4) defendant Warren County Sheriff's undeliverable. Dkt No. 49.

office retaliated against her based on her filing of an EEOC

complaint in violation of Title VII; and (5) the individual On December 23, 2015, the attorney for defendant Ernest

County defendants retaliated against her based on her filing Barboza filed a letter motion requesting, based upon plaintiff's

of an EEOC complaint in violation of 42 U.S.C. § 1983 and failure to file an amended complaint by June 13, 2015

the First Amendment. Id. at 28. Finally, the Court denied as directed by this Court's Decision and Order dated May

defendants' motion to dismiss plaintiff's claim that the Warren 13, 2015, that the Court issue judgment in favor of Ernest

County Sheriff's Office discriminated against her based on Barboza. Dkt. No. 47. On December 23, 2015, the Court

her gender in violation of Title VII, to the extent that such issued a text order granting in part and denying in part

claim is based upon events occurring after April 16, 2011, and defendant Barboza's letter request. Dkt No. 48. The order

her claim that defendants York, LaFar, and Marlo Barboza directed the Clerk of the Court to terminate Ernest Barboza

discriminated against her based on her gender in violation of from this action and further provided that judgment will be

42 U.S.C. § 1983 and the Fourteenth Amendment. Id. at 29. entered at the conclusion of this matter. Dkt. No. 48. A copy of

that text order was served upon plaintiff by e-mail, as plaintiff

*2 On May 19, 2015, the undersigned issued a text order has ECF filing status.

scheduling the Rule 16 conference for June 11, 2015. Dkt.

No. 34. On June 11, 2015, the Court issued a Uniform Pretrial On January 15, 2016, defendants Marlo Barboza, LaFarr,

Scheduling Order which, among other things, directed that Warren County Sheriff's Office, and York filed a motion

discovery be completed by October 30, 2015, and directed for an Order dismissing plaintiff's complaint in its entirety

each party to file a report regarding the status of discovery by pursuant to Fed.R.Civ.P. 41 and 37, with prejudice. Dkt. No.

September 8, 2015. Dkt. No. 39. 50. Plaintiff's response to that motion was due by February

5, 2016, with any reply to be filed by February 8, 2016. Dkt.

On September 18, 2015, the Court issued a notice directing No.51. Plaintiff has not filed a response to the pending motion

each of the parties to file a status report by October 2, 2015. to dismiss.

Dkt. No. 41. Defendants filed a status report on September

28, 2015. Dkt. No. 42. Plaintiff failed to file a status report. On January 22, 2016, defendants Clifford, Steven Farmer,

Wayne Farmer, Feldeison, Gates, Gordon, Kelly, Maday,

By letter motion dated December 4, 2015, defendants and Perilli filed a letter motion asking to be terminated as

requested a brief extension of the discovery deadline. Dkt. defendants in this action. Dkt. No. 54. On January 22, 2016,

No. 43. On December 8, 2015, the Court granted the the Court issued a text order granting that letter motion and

extension request and issued a notice scheduling a discovery directing that those defendants be terminated from this action.

conference for December 21, 2015. Dkt. Nos. 44, 45. The Dkt. No. 54.

notice provided: “please be advised that Plaintiff's failure

to attend conferences and participate in discovery may

result in dismissal of the claim.” Dkt. No. 45. The notice

further provided that plaintiff could appear in person or

II. Discussion2

telephonically. Id. A copy of that notice was served on

*3 Fed.R.Civ.P. 41(b) provides that a court may dismiss an

plaintiff by regular mail. See id. Plaintiff failed to appear for

action “[i]f the plaintiff fails to prosecute or comply with

that conference. See Dkt. entry dated 12/21/15.

[the Federal Rules of Civil Procedure] or a court order ...”

See Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962);

On December 21, 2015, the Court issued a text notice setting

Baptiste v. Sommers, 768 F.3d. 212, 216 ( 2d Cir. 2014);

a briefing schedule for the defendants to file a motion to

see also N.D.N.Y. L.R. 41.2(b). Since a Rule 41(b) dismissal

dismiss, which directed that any such motions be filed by

“is a harsh remedy ... [it] is appropriate only in extreme

January 19, 2016. See text not. dated 12/21/15. Plaintiff was

situations.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1966)

directed to file any response to that motion by February 5,

deficiencies ...” Spencer v. Doe, 139 F.3d 107, 112 ( 2d Cir. and noted that she would be responding directly to the

1998) (quoting Lucas, 84 F.3d at 535); see also Triestman v. Court. Dkt. No. 43, Exh B. Plaintiff has never contacted

Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d. Cir. 2006). A the Court to address her deposition or failure to respond to

determination whether to dismiss an action pursuant to Rule defendants' document requests. Defendants have not received

41(b) involves consideration of: any communication from plaintiff since her October 22, 2015

e-mail. Dkt. No. 50–1 at 7.

(1) the duration of the plaintiff's On December 8, 2015, this Court issued a notice, served on

failure to comply with the court plaintiff by regular mail, scheduling a discovery conference

order, (2) whether plaintiff was for December 21, 2015. Dkt. No. 45. The notice specifically

on notice that failure to comply advised plaintiff that her failure to attend conferences

will result in dismissal, (3) whether and participate in discovery may result in the dismissal

the defendants are likely to be of her claim. Id. Even after having been advised of the

prejudiced by for the delay in the consequences of her failure to participate in discovery and

proceedings, (4) a balancing of attend conferences, and permitting plaintiff the opportunity

the court's interest in managing its to appear by telephone, plaintiff failed to appear for the

docket with the plaintiff's interest conference.

in receiving a fair chance to be

heard, and (5) whether the judge has *4 As a result of plaintiff's failure to serve mandatory

adequately considered a sanction disclosure as directed by this Court's May 20, 2014 Order,

less drastic than dismissal. failure to respond to defendants' discovery requests and her

failure to appear for a deposition, defendants have been

denied access to information they need in order to prepare

a proper defense in this matter. Shannon v. Gen. Elec. Co.,

Lucas, 84 F.3d at 535 (citing Jackson v. City of New York, 22

186 F.3d 186,195 (2d. Cir. 1999). Plaintiff's failure to provide

F.3d 71, 74 (2d Cir. 1994)) (additional citations omitted).

document discovery and failure to appear for deposition have

significantly delayed the resolution of this matter, thereby

A review of this case's procedural history shows that the

contributing to the Court's congestion.

complaint was filed on December 20, 2013. Dkt. No. 1.

As such, over two years have elapsed since the filing of

The final consideration in determining whether to grant the

this action, yet virtually no discovery has been conducted

motion to dismiss for failure to prosecute is an assessment

as a result of plaintiff's failure to comply with this Court's

scheduling order.

of whether there is a sanction less drastic than dismissal.3

Mindful of the principles of law pronounced above, the

On March 20, 2014, the undersigned issued a text order undersigned determines that the dismissal of plaintiff's

which directed that the parties file a civil case management complaint is the appropriate result in this matter. Here,

plan and exchange mandatory disclosures by April 28, plaintiff has completely and intentionally disregarded the

2014. Dkt. No. 19. Although the moving defendants sent Uniform Pretrial Scheduling Order which issued on June 11,

plaintiff their initial disclosure on June 1, 2015, plaintiff has 2015. Dkt. No. 39. That order directed, among other things,

never served any initial disclosure in this matter. Dkt. No. that all discovery be completed by October 30, 2015. As

50–1 at 6. On September 25, 2015, defendants submitted noted, plaintiff has failed to provide defendants with any

a demand for production of documents and a notice for discovery and has refused to appear for deposition. Even

examination before trial to plaintiff by way of a letter dated after the Court advised plaintiff that her failure to attend

September 25, 2015. Dkt. No. 43. Plaintiff's deposition conferences and participate in discovery may result in the

was scheduled for October 26, 2015. As the deposition dismissal of this action, plaintiff failed to attend the Court

approached, defendants made numerous efforts to contact conference. See Dkt. entry dated Dec. 21, 2015. Plaintiff has

plaintiff to confirm her attendance. Dkt. No. 50–1 at 6. On also failed to submit any opposition to this motion to dismiss

October 22, 2015 defendants received an e-mail from plaintiff for lack of prosecution. In addition, it appears that the address

which plaintiff provided to the Court is no longer valid as a

undeliverable. Dkt. No. 49. Plaintiff has failed to comply with failure to prosecute (Dkt. No. 50) be GRANTED; and that the

her duty to update the Court as to any changes of address. complaint (Dkt. No. 1) be dismissed in its entirety; and it is

In recommending the dismissal of this action, the undersigned ORDERED, that copies of this Report–Recommendation and

is aware that dismissal is particularly harsh remedy, especially Order be served on the parties in accordance with Local Rules.

when invoked against a pro se plaintiff. Salahuddin v. Harris,

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the

782 F.2d 1127,1132 (2d. Cir. 1986); Sec. and Exch. Comm'n

v. Research Automation Corp., 521 F.2d 585, 588–89 (2d. Cir.

parties have fourteen (14) days within which to file written

objections to the foregoing report. Such objections shall be

1975). Given plaintiff's apparent abandonment of this action

and complete refusal to comply with this Court's orders, the

filed with the Clerk of the Court. FAILURE TO OBJECT

Court finds that the imposition of a lesser sanction would have TO THIS REPORT WITHIN FOURTEEN DAYS WILL

no effect on Plaintiff or this litigation which has been pending

PRECLUDE APPELLATE REVIEW. Roldan v. Racette,

984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary of

since December 20, 2013. See Dkt. No. 1.

Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28

U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(e), 72.

III. Conclusion

*5 IT IS SO ORDERED.

WHEREFORE, for the reasons stated herein, it is hereby

All Citations

Not Reported in Fed. Supp., 2016 WL 2621796

Footnotes

1 This matter was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636 (b)

and N. D.N.Y.L.R. 72.3 (c).

2 All unpublished opinions cited to by the Court in this Report–Recommendation and Order are, unless

otherwise noted, attached to this Report–Recommendation and Order.

3 Defendants request, in the alternative, (Dkt No. 50), that dismissal be considered under Rule 37 for plaintiff's

failure to attend the deposition. See FED. R. CIV. P. 37. Since “courts consider the same factors applicable

to Rule 41(b) when considering dismissal pursuant to Rule 37[']” no additional analysis is needed. Barney

v. Consol. Edison Co. of New York, No. 99–CV–823 (DGT), 2006 WL 4401019, at *16 (E.D.N.Y. July 19,

2006 (citations omitted).

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2016 WL 2636293 Court Order pursuant Fed. R. Civ. P. 37(b),(d); and (2) United

Only the Westlaw citation is currently available. States Magistrate Judge Christian F. Hummel's Report-

United States District Court, N.D. New York. Recommendation recommending that Defendants' motion be

granted. (Dkt. Nos. 46, 53.) None of the parties have filed

Michelle a LEBARRON, Plaintiff, objections to the Report-Recommendation, and the deadline

v. by which to do so has expired. (See generally Docket

WARREN COUNTY SHERIFF'S OFFICE; Nathan H. Sheet.) After carefully reviewing the relevant papers herein,

York; James A. Lafarr; and Marlo Barboza, Defendants. including Magistrate Judge Hummel's thorough Report-

Recommendation, the Court can find no clear-error in

1:13-CV-1572 (GTS/CFH) the Report-Recommendation.1 Magistrate Judge Hummel

| employed the proper standards, accurately recited the facts,

Signed 05/06/2016 and reasonably applied the law to those facts. As a result,

the Report-Recommendation is accepted and adopted in its

Attorneys and Law Firms entirety for the reasons set forth therein, Defendants' motion is

granted, and Plaintiff's Complaint is dismissed in its entirety.

MICHELLE A. LeBARRON, P.O. Box 1486, 5 Mast Court,

Berlin, Maryland 21811, Plaintiff, Pro Se.

ACCORDINGLY, it is

LEMIRE, JOHNSON & HIGGINS, LLC, P.O. Box 2485,

2534 Route 9, OF COUNSEL: GREGG T. JOHNSON, ESQ., ORDERED that Magistrate Judge Hummel's Report-

BRADLEY J. STEVENS, ESQ., Malta, New York 12020, Recommendation (Dkt. No. 57) is ACCEPTED and

Counsel for Defendants. ADOPTED in its entirety; and it is further

ORDERED that Defendants' motion to dismiss (Dkt. No. 50)

DECISION and ORDER is GRANTED; and it is further

GLENN T. SUDDABY, Chief United States District Judge ORDERED that Plaintiff's Complaint (Dkt. No. 1) is

DISMISSED in its entirety; and it is further

*1 Currently before the Court, in this pro se employment

discrimination action filed by Michele LeBarron (“Plaintiff”) ORDERED that the Clerk of the Court shall enter Judgment

against the Warren County Sheriff's Office and three of its for Defendants and close this action.

employees (“Defendants”) arising from Plaintiff's termination

as a corrections officer in July 2011, are the following:

(1) Defendants' motion to dismiss Plaintiff's Complaint for All Citations

failure to prosecute and/or comply with a Court Order

pursuant to Fed. R. Civ. P. 41(b) and/or as a sanction for Not Reported in Fed. Supp., 2016 WL 2636293

Footnotes

1 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to

only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing

such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record

in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at

*1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]

report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal

quotation marks omitted).

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2007 WL 4246443 REPORT-RECOMMENDATION

Only the Westlaw citation is currently available.

United States District Court, GEORGE H. LOWE, United States Magistrate Judge.

N.D. New York.

This pro se prisoner civil rights action, filed pursuant to

Jose RODRIGUEZ, Plaintiff, 42 U.S.C. § 1983, has been referred to me for Report and

v. Recommendation by the Honorable Frederick J. Scullin, Jr.,

Glen S. GOORD, et al, Defendants. Senior United States District Judge, pursuant to 28 U.S.C. §

636(b) and Local Rule 72.3(c) of the Local Rules of Practice

No. 9:04-CV-0358 (FJS/GHL). for this Court. Generally, Jose Rodriguez (“Plaintiff”) alleges

| that, while he was an inmate at Oneida Correctional Facility

Nov. 27, 2007. in 2003 and 2004, ten employees of the New York State

Department of Correctional Services (“Defendants”) were

Attorneys and Law Firms deliberately indifferent to his serious medical needs, and

subjected him to cruel and unusual prison conditions, in

Jose Rodriguez, Willard, NY, pro se.

violation of the Eighth Amendment. (Dkt. No. 27 [Plf .'s

Andrew M. Cuomo, Attorney General of the State of New Am. Compl.].) Currently pending is Defendants' motion to

York, David L. Cochran, Esq., Assistant Attorney General, of dismiss for failure to provide notice to the Court of a change

Counsel, Albany, NY, for Defendants. of address, pursuant to Local Rule 41.2(b) of the Local

Rules of Practice for this Court. (Dkt. No. 86.) Plaintiff has

not opposed the motion, despite having been given more

than six weeks in which to do so. Under the circumstances,

DECISION AND ORDER

I recommend that (1) Defendants' motion to dismiss be

FREDERICK J. SCULLIN, Senior District Judge. granted, and (2) in the alternative, the Court exercise its

inherent authority to sua sponte dismiss Plaintiff's Amended

*1 The above-captioned matter having been presented to Complaint for failure to prosecute and/or failure to comply

me by the Report-Recommendation of Magistrate Judge with an Order of the Court.

George H. Lowe filed November 6, 2007, and the Court

having reviewed the Report-Recommendation and the entire

file in this matter, and no objections to said Report- I. DEFENDANTS' MOTION TO DISMISS

Recommendation having been filed, the Court hereby Under the Local Rules of Practice for this Court, Plaintiff has

effectively “consented” to the granting of Defendants' motion

ORDERS, that Magistrate Judge Lowe's November 6, 2007 to dismiss, since (1) he failed to oppose the motion, (2) the

Report-Recommendation is ACCEPTED in its entirety for motion was properly filed, and (3) Defendants have, through

the reasons stated therein; and the Court further the motion, met their burden of demonstrating entitlement to

the relief requested in the motion. L.R. 7.1(b)(3).

ORDERS, that Defendants' motion, pursuant to Local Rule

41.2(b), to dismiss for Plaintiff's failure to provide notice to In particular, with regard to this last factor (i.e., that

the Court of a change of address, is GRANTED; and the Defendants have met their burden of demonstrating

Court further entitlement to the relief requested), Defendants argue that

their motion to dismiss should be granted because (1) Local

ORDERS, that the Clerk of the Court enter judgment in favor Rule 41.2(b) provides that “[f]ailure to notify the Court of a

of the Defendants and close this case. change of address in accordance with [Local Rule] 10.1(b)

may result in the dismissal of any pending action,” (2) on

April 15, 2004, Plaintiff was specifically advised of this rule

IT IS SO ORDERED. when (through Dkt. No. 5, at 4) the Court advised Plaintiff

that “his failure to [promptly notify the Clerk's Office and

all parties or their counsel of any change in his address]

Center, (4) since that time, Plaintiff has failed to provide judge shall order it dismissed.”) [emphasis added].

notice to the Court (or Defendants) of his new address, as

required by Local Rule 10.1(b)(2), and (5) as a result of

this failure, Defendants have been prejudiced in that they A. Failure to Prosecute

have been unable to contact Plaintiff in connection with this With regard to the first ground for dismissal (a failure to

litigation (e.g., in order to depose him, as authorized by the prosecute the action), it is within the trial judge's sound

Court on May 4, 2007). (Dkt. No. 86, Part 4, at 1-2 [Defs.' discretion to dismiss for want of prosecution.4 The Second

Mem. of Law].) Circuit has identified five factors that it considers when

reviewing a district court's order to dismiss an action for

*2 Authority exists suggesting that an inquiry into the failure to prosecute:

third factor (i.e., whether a movant has met its “burden

to demonstrate entitlement” to dismissal under Local Rule

7.1[b][3] ) is a more limited endeavor than a review of [1] the duration of the plaintiff's failures, [2] whether

a contested motion to dismiss.1 Specifically, under such plaintiff had received notice that further delays would result

in dismissal, [3] whether the defendant is likely to be

an analysis, the movant's burden of persuasion is lightened

prejudiced by further delay, [4] whether the district judge

such that, in order to succeed, his motion need only be

has taken care to strike the balance between alleviating

“facially meritorious.”2 Given that Defendants accurately

court calendar congestion and protecting a party's right to

cite the law and facts in their memorandum of law, I find due process and a fair chance to be heard and [5] whether

that they have met their lightened burden on their unopposed the judge has adequately assessed the efficacy of lesser

motion. Moreover, I am confident that I would reach the same sanctions.5

conclusion even if their motion were contested.

*3 As a general rule, no single one of these five factors is

For these reasons, I recommend that the Court grant

dispositive.6 However, I note that, with regard to the first

Defendants' motion to dismiss. factor, Rule 41.2 of the Local Rules of Practice for this Court

provides that a “plaintiff's failure to take action for four (4)

months shall be presumptive evidence of lack of prosecution.”

II. SUA SPONTE DISMISSAL N.D.N.Y. L.R. 41.2(a). In addition, I note that a party's failure

Even if Defendants have not met their burden on their motion to keep the Clerk's Office apprised of his or her current

to dismiss, the Court possesses the inherent authority to address may also constitute grounds for dismissal under Rule

dismiss Plaintiff's Amended Complaint sua sponte under 41(b) of the Federal Rules of Civil Procedure.7

the circumstances. Rule 41 of the Federal Rules of Civil

Procedure permits a defendant to move to dismiss a Here, I find that, under the circumstances, the above-

proceeding for (1) failure to prosecute the action and/or (2) described factors weigh in favor of dismissal. The duration

failure to comply with the Federal Rules of Civil Procedure of Plaintiff's failure is some six-and-a-half months, i.e.,

or an Order of the Court. Fed.R.Civ.P. 41(b).3 However, since April 22, 2007, the date of the last document that

it has long been recognized that, despite Rule 41 (which Plaintiff attempted to file with the Court (Dkt. No. 85).

speaks only of a motion to dismiss on the referenced grounds, Plaintiff received adequate notice (e.g., through the Court's

and not a sua sponte order of dismissal on those grounds), above-referenced Order of April 15, 2004, and Defendants'

courts retain the “inherent power” to sua sponte “clear their motion to dismiss) that his failure to litigate this action

calendars of cases that have remained dormant because of (e.g., through providing a current address) would result in

the inaction or dilatoriness of the parties seeking relief.” Link dismissal. Defendants are likely to be prejudiced by further

v. Wabash R.R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 8 delays in this proceeding, since they have been waiting to

L.Ed.2d 734 (1962); see also Saylor v. Bastedo, 623 F.2d take Plaintiff's deposition since May 4, 2007. (Dkt. No. 84.)

230, 238 (2d Cir.1980); Theilmann v. Rutland Hospital, Inc., I find that the need to alleviate congestion on the Court's

455 F.2d 853, 855 (2d Cir.1972). Indeed, Local Rule 41.2(a) docket outweighs Plaintiff's right to receive a further chance

not only recognizes this authority but requires that it be to be heard in this action.8 Finally, I have considered all

exercised in appropriate circumstances. See N.D.N.Y. L.R. less-drastic sanctions and rejected them, largely because they

due to his failure to provide a current address). Plaintiff violated this Order, resulting in delays in the action.

(See Dkt. Nos. 47, 48, 49, 50, 54, 59, 72, 78, 79 & Dkt. Entry

for 12/15/06 [indicating that mail from the Court to Plaintiff

B. Failure to Comply with Order of Court was returned as undeliverable].)

With regard to the second ground for dismissal (a failure

to comply with an Order of the Court), the legal standard *4 As a result, I recommend that, should the Court decide

governing such a dismissal is very similar to the legal standard to deny Defendants' motion to dismiss, the Court exercise

governing a dismissal for failure to prosecute. “Dismissal ... its authority to dismiss Plaintiff's Amended Complaint sua

for failure to comply with an order of the court is a matter sponte for failure to prosecute and/or failure to comply with

committed to the discretion of the district court.”9 The an Order of the Court.

correctness of a dismissal for failure to comply with an order

of the court is determined in light of five factors: ACCORDINGLY, for the reasons stated above, it is

RECOMMENDED that Defendants' motion to dismiss (Dkt.

(1) the duration of the plaintiff's failure to comply with No. 86) be GRANTED%; and it is further

the court order, (2) whether plaintiff was on notice that

failure to comply would result in dismissal, (3) whether the RECOMMENDED that, in the alternative, the Court

defendants are likely to be prejudiced by further delay in exercise its inherent authority to SUA SPONTE DISMISS

the proceedings, (4) a balancing of the court's interest in Plaintiff's Amended Complaint for failure to prosecute and/or

managing its docket with the plaintiff's interest in receiving failure to comply with an Order of the Court.

a fair chance to be heard, and (5) whether the judge

has adequately considered a sanction less drastic than Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten

dismissal.10 (10) days within which to file written objections to the

Here, I find that, under the circumstances, the above- foregoing report. Such objections shall be filed with the

described factors weigh in favor of dismissal for the same Clerk of the Court. FAILURE TO OBJECT TO THIS

reasons as described above in Part II.A. of this Report- REPORT WITHIN TEN (10) DAYS WILL PRECLUDE

Recommendation. I note that the Order that Plaintiff has APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85,

violated is the Court's Order of April 15, 2004, wherein the 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human

Court ordered Plaintiff, inter alia, to keep the Clerk's Office Servs., 892 F.2d 15 [2d Cir.1989] ); 28 U.S.C. § 636(b)(1);

apprised of his current address. (Dkt. No. 5, at 4.) Specifically, Fed.R.Civ.P. 72, 6(a), 6(e)..

the Court advised plaintiff that “[p]laintiff is also required

to promptly notify the Clerk's Office and all parties or their

All Citations

counsel of any change in plaintiff's address; his failure to

do same will result in the dismissal of this action.” (Id.) I Not Reported in F.Supp.2d, 2007 WL 4246443

Footnotes

1 See, e.g., Hernandez v. Nash, 00-CV-1564, 2003 U.S. Dist. LEXIS 16258, at *7-8, 2003 WL 22143709

(N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) (before an unopposed motion to dismiss may be granted under

Local Rule 7.1[b][3], “the court must review the motion to determine whether it is facially meritorious ”)

[emphasis added; citations omitted]; Race Safe Sys. v. Indy Racing League, 251 F.Supp.2d 1106, 1109-10

(N.D.N.Y.2003) (Munson, J.) (reviewing whether record contradicted defendant's arguments, and whether

record supported plaintiff's claims, in deciding unopposed motion to dismiss, under Local Rule 7.1[b][3] );

see also Wilmer v. Torian, 96-CV-1269, 1997 U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997) (Hurd,

M .J.) (applying prior version of Rule 7.1 [b][3], but recommending dismissal because of plaintiff's failure to

Dist. LEXIS 16340, at *2 (N.D.N.Y. Oct. 14, 1997) (Pooler, J.); accord, Carter v. Superintendent Montello, 95-

CV-0989, 1996 U.S. Dist. LEXIS 15072, at *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F.Supp.

595 (N.D.N.Y.1996) (Pooler, J.).

2 See, e.g., Hernandez, 2003 U.S. Dist. LEXIS 1625 at *8.

3 Fed.R.Civ.P. 41(b) (providing, in pertinent part, that “[f]or failure of the plaintiff to prosecute or to comply with

these rules or any order of court, a defendant may move for dismissal of an action or of any claim against

the defendant”).

4 See Merker v. Rice, 649 F.2d 171, 173 (2d Cir.1981).

5 See Shannon v. GE Co., 186 F.3d 186, 193 (2d Cir.1999) (affirming Rule 41[b] dismissal of plaintiff's claims

by U.S. District Court for Northern District of New York based on plaintiff's failure to prosecute the action)

[citation and internal quotation marks omitted].

6 See Nita v. Conn. Dep't of Env. Protection, 16 F.3d 482 (2d Cir.1994).

7 See, e.g., Robinson v. Middaugh, 95-CV-0836, 1997 U.S. Dist. LEXIS 13929, at *2-3, 1997 WL 567961

(N.D.N.Y. Sept. 11, 1997) (Pooler, J.) (dismissing action under Fed.R.Civ.P. 41[b] where plaintiff failed to

inform the Clerk of his change of address despite having been previously ordered by Court to keep the Clerk

advised of such a change); see also N.D.N.Y. L.R. 41.2(b) (“Failure to notify the Court of a change of address

in accordance with [Local Rule] 10.1(b) may result in the dismissal of any pending action.”).

8 It is cases like this one that delay the resolution of other cases, and that contribute to the Second Circuit's

dubious distinction as having (among the twelve circuits, including the D.C. Circuit) the longest median time

to disposition for prisoner civil rights cases, between 2000 and 2005 (9.8 months, as compared to a national

average of 5.7 months). Simply stated, I am unable to afford Plaintiff with further special solicitude without

impermissibly burdening the Court and unfairly tipping the scales of justice against Defendant.

9 Alvarez v. Simmons Market Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir.1988) [citations omitted].

10 Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.1996) [citations omitted].

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2007 WL 4246443 REPORT-RECOMMENDATION

Only the Westlaw citation is currently available.

United States District Court, GEORGE H. LOWE, United States Magistrate Judge.

N.D. New York.

This pro se prisoner civil rights action, filed pursuant to

Jose RODRIGUEZ, Plaintiff, 42 U.S.C. § 1983, has been referred to me for Report and

v. Recommendation by the Honorable Frederick J. Scullin, Jr.,

Glen S. GOORD, et al, Defendants. Senior United States District Judge, pursuant to 28 U.S.C. §

636(b) and Local Rule 72.3(c) of the Local Rules of Practice

No. 9:04-CV-0358 (FJS/GHL). for this Court. Generally, Jose Rodriguez (“Plaintiff”) alleges

| that, while he was an inmate at Oneida Correctional Facility

Nov. 27, 2007. in 2003 and 2004, ten employees of the New York State

Department of Correctional Services (“Defendants”) were

Attorneys and Law Firms deliberately indifferent to his serious medical needs, and

subjected him to cruel and unusual prison conditions, in

Jose Rodriguez, Willard, NY, pro se.

violation of the Eighth Amendment. (Dkt. No. 27 [Plf .'s

Andrew M. Cuomo, Attorney General of the State of New Am. Compl.].) Currently pending is Defendants' motion to

York, David L. Cochran, Esq., Assistant Attorney General, of dismiss for failure to provide notice to the Court of a change

Counsel, Albany, NY, for Defendants. of address, pursuant to Local Rule 41.2(b) of the Local

Rules of Practice for this Court. (Dkt. No. 86.) Plaintiff has

not opposed the motion, despite having been given more

than six weeks in which to do so. Under the circumstances,

DECISION AND ORDER

I recommend that (1) Defendants' motion to dismiss be

FREDERICK J. SCULLIN, Senior District Judge. granted, and (2) in the alternative, the Court exercise its

inherent authority to sua sponte dismiss Plaintiff's Amended

*1 The above-captioned matter having been presented to Complaint for failure to prosecute and/or failure to comply

me by the Report-Recommendation of Magistrate Judge with an Order of the Court.

George H. Lowe filed November 6, 2007, and the Court

having reviewed the Report-Recommendation and the entire

file in this matter, and no objections to said Report- I. DEFENDANTS' MOTION TO DISMISS

Recommendation having been filed, the Court hereby Under the Local Rules of Practice for this Court, Plaintiff has

effectively “consented” to the granting of Defendants' motion

ORDERS, that Magistrate Judge Lowe's November 6, 2007 to dismiss, since (1) he failed to oppose the motion, (2) the

Report-Recommendation is ACCEPTED in its entirety for motion was properly filed, and (3) Defendants have, through

the reasons stated therein; and the Court further the motion, met their burden of demonstrating entitlement to

the relief requested in the motion. L.R. 7.1(b)(3).

ORDERS, that Defendants' motion, pursuant to Local Rule

41.2(b), to dismiss for Plaintiff's failure to provide notice to In particular, with regard to this last factor (i.e., that

the Court of a change of address, is GRANTED; and the Defendants have met their burden of demonstrating

Court further entitlement to the relief requested), Defendants argue that

their motion to dismiss should be granted because (1) Local

ORDERS, that the Clerk of the Court enter judgment in favor Rule 41.2(b) provides that “[f]ailure to notify the Court of a

of the Defendants and close this case. change of address in accordance with [Local Rule] 10.1(b)

may result in the dismissal of any pending action,” (2) on

April 15, 2004, Plaintiff was specifically advised of this rule

IT IS SO ORDERED. when (through Dkt. No. 5, at 4) the Court advised Plaintiff

that “his failure to [promptly notify the Clerk's Office and

all parties or their counsel of any change in his address]

Center, (4) since that time, Plaintiff has failed to provide judge shall order it dismissed.”) [emphasis added].

notice to the Court (or Defendants) of his new address, as

required by Local Rule 10.1(b)(2), and (5) as a result of

this failure, Defendants have been prejudiced in that they A. Failure to Prosecute

have been unable to contact Plaintiff in connection with this With regard to the first ground for dismissal (a failure to

litigation (e.g., in order to depose him, as authorized by the prosecute the action), it is within the trial judge's sound

Court on May 4, 2007). (Dkt. No. 86, Part 4, at 1-2 [Defs.' discretion to dismiss for want of prosecution.4 The Second

Mem. of Law].) Circuit has identified five factors that it considers when

reviewing a district court's order to dismiss an action for

*2 Authority exists suggesting that an inquiry into the failure to prosecute:

third factor (i.e., whether a movant has met its “burden

to demonstrate entitlement” to dismissal under Local Rule

7.1[b][3] ) is a more limited endeavor than a review of [1] the duration of the plaintiff's failures, [2] whether

a contested motion to dismiss.1 Specifically, under such plaintiff had received notice that further delays would result

in dismissal, [3] whether the defendant is likely to be

an analysis, the movant's burden of persuasion is lightened

prejudiced by further delay, [4] whether the district judge

such that, in order to succeed, his motion need only be

has taken care to strike the balance between alleviating

“facially meritorious.”2 Given that Defendants accurately

court calendar congestion and protecting a party's right to

cite the law and facts in their memorandum of law, I find due process and a fair chance to be heard and [5] whether

that they have met their lightened burden on their unopposed the judge has adequately assessed the efficacy of lesser

motion. Moreover, I am confident that I would reach the same sanctions.5

conclusion even if their motion were contested.

*3 As a general rule, no single one of these five factors is

For these reasons, I recommend that the Court grant

dispositive.6 However, I note that, with regard to the first

Defendants' motion to dismiss. factor, Rule 41.2 of the Local Rules of Practice for this Court

provides that a “plaintiff's failure to take action for four (4)

months shall be presumptive evidence of lack of prosecution.”

II. SUA SPONTE DISMISSAL N.D.N.Y. L.R. 41.2(a). In addition, I note that a party's failure

Even if Defendants have not met their burden on their motion to keep the Clerk's Office apprised of his or her current

to dismiss, the Court possesses the inherent authority to address may also constitute grounds for dismissal under Rule

dismiss Plaintiff's Amended Complaint sua sponte under 41(b) of the Federal Rules of Civil Procedure.7

the circumstances. Rule 41 of the Federal Rules of Civil

Procedure permits a defendant to move to dismiss a Here, I find that, under the circumstances, the above-

proceeding for (1) failure to prosecute the action and/or (2) described factors weigh in favor of dismissal. The duration

failure to comply with the Federal Rules of Civil Procedure of Plaintiff's failure is some six-and-a-half months, i.e.,

or an Order of the Court. Fed.R.Civ.P. 41(b).3 However, since April 22, 2007, the date of the last document that

it has long been recognized that, despite Rule 41 (which Plaintiff attempted to file with the Court (Dkt. No. 85).

speaks only of a motion to dismiss on the referenced grounds, Plaintiff received adequate notice (e.g., through the Court's

and not a sua sponte order of dismissal on those grounds), above-referenced Order of April 15, 2004, and Defendants'

courts retain the “inherent power” to sua sponte “clear their motion to dismiss) that his failure to litigate this action

calendars of cases that have remained dormant because of (e.g., through providing a current address) would result in

the inaction or dilatoriness of the parties seeking relief.” Link dismissal. Defendants are likely to be prejudiced by further

v. Wabash R.R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 8 delays in this proceeding, since they have been waiting to

L.Ed.2d 734 (1962); see also Saylor v. Bastedo, 623 F.2d take Plaintiff's deposition since May 4, 2007. (Dkt. No. 84.)

230, 238 (2d Cir.1980); Theilmann v. Rutland Hospital, Inc., I find that the need to alleviate congestion on the Court's

455 F.2d 853, 855 (2d Cir.1972). Indeed, Local Rule 41.2(a) docket outweighs Plaintiff's right to receive a further chance

not only recognizes this authority but requires that it be to be heard in this action.8 Finally, I have considered all

exercised in appropriate circumstances. See N.D.N.Y. L.R. less-drastic sanctions and rejected them, largely because they

due to his failure to provide a current address). Plaintiff violated this Order, resulting in delays in the action.

(See Dkt. Nos. 47, 48, 49, 50, 54, 59, 72, 78, 79 & Dkt. Entry

for 12/15/06 [indicating that mail from the Court to Plaintiff

B. Failure to Comply with Order of Court was returned as undeliverable].)

With regard to the second ground for dismissal (a failure

to comply with an Order of the Court), the legal standard *4 As a result, I recommend that, should the Court decide

governing such a dismissal is very similar to the legal standard to deny Defendants' motion to dismiss, the Court exercise

governing a dismissal for failure to prosecute. “Dismissal ... its authority to dismiss Plaintiff's Amended Complaint sua

for failure to comply with an order of the court is a matter sponte for failure to prosecute and/or failure to comply with

committed to the discretion of the district court.”9 The an Order of the Court.

correctness of a dismissal for failure to comply with an order

of the court is determined in light of five factors: ACCORDINGLY, for the reasons stated above, it is

RECOMMENDED that Defendants' motion to dismiss (Dkt.

(1) the duration of the plaintiff's failure to comply with No. 86) be GRANTED%; and it is further

the court order, (2) whether plaintiff was on notice that

failure to comply would result in dismissal, (3) whether the RECOMMENDED that, in the alternative, the Court

defendants are likely to be prejudiced by further delay in exercise its inherent authority to SUA SPONTE DISMISS

the proceedings, (4) a balancing of the court's interest in Plaintiff's Amended Complaint for failure to prosecute and/or

managing its docket with the plaintiff's interest in receiving failure to comply with an Order of the Court.

a fair chance to be heard, and (5) whether the judge

has adequately considered a sanction less drastic than Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten

dismissal.10 (10) days within which to file written objections to the

Here, I find that, under the circumstances, the above- foregoing report. Such objections shall be filed with the

described factors weigh in favor of dismissal for the same Clerk of the Court. FAILURE TO OBJECT TO THIS

reasons as described above in Part II.A. of this Report- REPORT WITHIN TEN (10) DAYS WILL PRECLUDE

Recommendation. I note that the Order that Plaintiff has APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85,

violated is the Court's Order of April 15, 2004, wherein the 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human

Court ordered Plaintiff, inter alia, to keep the Clerk's Office Servs., 892 F.2d 15 [2d Cir.1989] ); 28 U.S.C. § 636(b)(1);

apprised of his current address. (Dkt. No. 5, at 4.) Specifically, Fed.R.Civ.P. 72, 6(a), 6(e)..

the Court advised plaintiff that “[p]laintiff is also required

to promptly notify the Clerk's Office and all parties or their

All Citations

counsel of any change in plaintiff's address; his failure to

do same will result in the dismissal of this action.” (Id.) I Not Reported in F.Supp.2d, 2007 WL 4246443

Footnotes

1 See, e.g., Hernandez v. Nash, 00-CV-1564, 2003 U.S. Dist. LEXIS 16258, at *7-8, 2003 WL 22143709

(N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) (before an unopposed motion to dismiss may be granted under

Local Rule 7.1[b][3], “the court must review the motion to determine whether it is facially meritorious ”)

[emphasis added; citations omitted]; Race Safe Sys. v. Indy Racing League, 251 F.Supp.2d 1106, 1109-10

(N.D.N.Y.2003) (Munson, J.) (reviewing whether record contradicted defendant's arguments, and whether

record supported plaintiff's claims, in deciding unopposed motion to dismiss, under Local Rule 7.1[b][3] );

see also Wilmer v. Torian, 96-CV-1269, 1997 U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997) (Hurd,

M .J.) (applying prior version of Rule 7.1 [b][3], but recommending dismissal because of plaintiff's failure to

Dist. LEXIS 16340, at *2 (N.D.N.Y. Oct. 14, 1997) (Pooler, J.); accord, Carter v. Superintendent Montello, 95-

CV-0989, 1996 U.S. Dist. LEXIS 15072, at *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F.Supp.

595 (N.D.N.Y.1996) (Pooler, J.).

2 See, e.g., Hernandez, 2003 U.S. Dist. LEXIS 1625 at *8.

3 Fed.R.Civ.P. 41(b) (providing, in pertinent part, that “[f]or failure of the plaintiff to prosecute or to comply with

these rules or any order of court, a defendant may move for dismissal of an action or of any claim against

the defendant”).

4 See Merker v. Rice, 649 F.2d 171, 173 (2d Cir.1981).

5 See Shannon v. GE Co., 186 F.3d 186, 193 (2d Cir.1999) (affirming Rule 41[b] dismissal of plaintiff's claims

by U.S. District Court for Northern District of New York based on plaintiff's failure to prosecute the action)

[citation and internal quotation marks omitted].

6 See Nita v. Conn. Dep't of Env. Protection, 16 F.3d 482 (2d Cir.1994).

7 See, e.g., Robinson v. Middaugh, 95-CV-0836, 1997 U.S. Dist. LEXIS 13929, at *2-3, 1997 WL 567961

(N.D.N.Y. Sept. 11, 1997) (Pooler, J.) (dismissing action under Fed.R.Civ.P. 41[b] where plaintiff failed to

inform the Clerk of his change of address despite having been previously ordered by Court to keep the Clerk

advised of such a change); see also N.D.N.Y. L.R. 41.2(b) (“Failure to notify the Court of a change of address

in accordance with [Local Rule] 10.1(b) may result in the dismissal of any pending action.”).

8 It is cases like this one that delay the resolution of other cases, and that contribute to the Second Circuit's

dubious distinction as having (among the twelve circuits, including the D.C. Circuit) the longest median time

to disposition for prisoner civil rights cases, between 2000 and 2005 (9.8 months, as compared to a national

average of 5.7 months). Simply stated, I am unable to afford Plaintiff with further special solicitude without

impermissibly burdening the Court and unfairly tipping the scales of justice against Defendant.

9 Alvarez v. Simmons Market Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir.1988) [citations omitted].

10 Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.1996) [citations omitted].

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.