Opinion
06 Civ. 1096 (SAS), 94076.
December 22, 2006
Horace Dove, Lenox Hill Station, New York, New York, Attorney for Plaintiff (Pro Se).
Sarah Evans, Assistant Corporation Counsel, New York, New York, Attorney for Defendants.
OPINION AND ORDER
Plaintiff Horace Dove, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging that he was deprived of his civil rights when he was physically assaulted by New York City police officers and firefighters and involuntarily committed at Harlem Psychiatric Hospital for a two-month period. Defendant City of New York (the "City") moves to dismiss the Complaint pursuant to Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. Specifically, the City complains that plaintiff failed to: (1) appear at his deposition which was noticed for October 13, 2006; (2) appear at a Court conference on October 27, 2006; and (3) contact the City's counsel despite repeated requests to do so. For the following reasons, defendant's motion is granted and this case is dismissed.
Plaintiff has failed to serve his Complaint on the "John Doe" defendants and defendant Dr. Abbelladad. Accordingly, because more than one hundred and twenty days have passed since the filing of the Complaint, these defendants are dismissed pursuant to Federal Rule of Civil Procedure 4(m).
I. BACKGROUND
A. Plaintiff's Failure to Appear at his Deposition
On February 14, 2006, plaintiff filed a Complaint which he served on the City the same day. On April 14, 2006, I held an initial conference and entered a Scheduling Order which set October 8, 2006 as the discovery cutoff date. A final pretrial conference was scheduled for October 27, 2006. By letter dated September 22, 2006, the City noticed plaintiff's deposition for October 13, 2006. The letter and Notice of Deposition were sent via first-class mail to the address listed for plaintiff on the docket sheet. On October 3, 2006, defendant's counsel wrote to plaintiff to remind him that his deposition in this matter was scheduled for October 13, 2006 at 10:00 a.m. at 100 Church Street New York, New York. In this letter, the City also conveyed an offer of settlement and informed plaintiff that absent his acceptance of the settlement offer, his deposition would go forward as scheduled. Plaintiff did not accept the offer and did not contact defendant's counsel to confirm his attendance at the deposition. On October 13, 2006, defendant's counsel was ready to proceed with plaintiff's deposition but plaintiff did not appear. Defendant's counsel waited another two hours and cancelled the deposition at approximately 12:30 p.m. Defendant's counsel then advised the Court of plaintiff's failure to appear and requested that his case be dismissed for failure to prosecute pursuant to Rules 37(b) and 41(b).
Prior to the instant lawsuit, plaintiff brought five other actions in this Court, all of which have been dismissed on defendants' motion or sua sponte.
Discovery was later extended when I learned of plaintiff's hospitalization in August 2006. See 8/9/06 Letter From Assistant Corporation Counsel Sarah B. Evans to the Court, Endorsed.
See 9/22/06 Letter from Evans to Dove and accompanying Notice of Deposition, Ex. A to the Declaration of Sarah Evans in Support of Defendant's Motion to Dismiss the Complaint Pursuant to Rule 41(b) and Rule 37(b) of the Federal Rules of Civil Procedure ("Evans Decl.").
See id. The only address ever provided by plaintiff is: Horace Dove, P.O. Box 2431, Lenox Hill Station, New York, New York 10021.
See 10/3/06 Letter from Evans to Dove, Ex. B to Evans Decl.
See id.
See 10/13/06 Letter from Evans to the Court, Ex. C to Evans Decl.
B. Plaintiff Failed to Attend the Final Pretrial Conference
The final pretrial conference was held two weeks later, on October 27, 2006. Plaintiff was advised of the date of the October 27, 2006 conference during the initial conference, in a voicemail message left by Chambers on October 19, 2006, and by letters from defendant's counsel dated October 17, 2006 and October 19, 2006. Despite these notices, plaintiff failed to appear at the October 27, 2006 conference. At the conference, the City was given permission to move to dismiss this action for plaintiff's failure to prosecute.
See 10/17/06 Letter from Evans to Dove, Ex. D to Evans Decl.; 10/19/06 Letter from Evans to Dove, Ex. E to Evans Decl.
C. Plaintiff Refused Correspondence from the City
Since the October 27, 2006 conference at which plaintiff failed to appear, plaintiff has made no attempt to contact defendant's counsel. On October 28, 2006, defendant's counsel received a letter returned to sender which was previously mailed to plaintiff on October 13, 2006. Plaintiff refused to accept the letter, having written the following on the envelope: "Can't accept it, Send it through regular mail, Dr. H.L.D. Barrister at Law." Similarly, on November 14, 2006, defendant's counsel received another letter returned to sender which was previously mailed to plaintiff on October 17, 2006. Plaintiff again refused to accept a letter mailed to him by defendant's counsel. The returned envelope bears the same handwritten note: "Can't accept it, Send it through regular mail, Dr. H.L.D. Barrister at Law."
See Copy of Envelope, Ex. F to Evans Decl.
Id.
See Copy of Envelope, Ex. G to Evans Decl.
Id.
II. LEGAL STANDARDS
A. Failure to Prosecute
Rule 41(b) states 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." In determining whether dismissal is appropriate under Rule 41(b), courts look to the following factors:
(1) the duration of the plaintiff's failure to comply with the court order; (2) whether the plaintiff was on notice failure to comply would result in dismissal; (3) whether the defendants are 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 receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal.
Spencer v. Doe, 139 F.3d 107, 112-13 (2d Cir. 1998). Accord Shannon v. General Elec. Co., 186 F.3d 186, 193-94 (2d Cir. 1999) (affirming district court's dismissal under Rule 41 for failure to prosecute).
And while it is well-settled that a district court has the "inherent power" to dismiss a case for lack of prosecution pursuant to Rule 41(b), dismissal is "a harsh remedy to be utilized only in extreme situations."
Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962).
Harding v. Federal Reserve Bank of New York, 707 F.2d 46, 50 (2d Cir. 1983).
B. Failure to Obey Discovery Orders
Rule 37(b)(2) provides that "[i]f a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: . . . (C) An order . . . dismissing the action or proceeding or any part thereof. . . ." A district court has "broad power" to impose Rule 37(b) sanctions in response to abusive litigation practices. Furthermore, willful or conscious disregard for the discovery process justifies the sanction of dismissal. Under Rule 37, "the severe sanction of dismissal with prejudice may be imposed even against a plaintiff proceeding pro se, so long as a warning has been given that noncompliance can result in dismissal." Finally, the imposition of sanctions under Rule 37 "is within the discretion of the district court and a decision to dismiss an action for failure to comply with discovery orders will only be reversed if the decision constitutes an abuse of that discretion."
Minotti v. Lensink, 895 F.2d 100, 102 (2d Cir. 1990) (per curiam) (affirming dismissal of pro se complaint for plaintiff's failure "to heed discovery orders").
See Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991) ("When a party seeks to frustrate [discovery] by disobeying discovery orders, thereby preventing disclosure of facts essential to an adjudication of the merits, severe sanctions are appropriate"); John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988) ("[d]ismissal under Rule 37 is warranted . . . where a party fails to comply with the court's discovery orders willfully, in bad faith, or through fault"); Carvalho v. Reid, 193 F.R.D. 149, 151 (S.D.N.Y. 2000) (dismissing case where pro se "plaintiff's conduct in thwarting discovery was, at the very least, willful").
Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994). "[W]hile pro se litigants may in general deserve more lenient treatment than those represented by counsel, all litigants, including pro ses, have an obligation to comply with court orders. When they flout that obligation, they, like all litigants, must suffer the consequences of their actions." McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988).
John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988).
III. DISCUSSION
On October 13, 2006, plaintiff did not appear for his deposition despite opposing counsel's readiness to proceed. Defendant's counsel waited until 12:30 p.m. to cancel the deposition. At the initial conference, I ordered plaintiff to appear at a final pretrial conference, scheduled for October 27, 2006. Again, plaintiff failed to appear. Prior to the conference, defendant's counsel wrote plaintiff a letter reminding him of the conference and warning him that if he did not appear, the "Court may dismiss your case." Plaintiff made no attempt to contact defendant's counsel regarding his failures to appear. Nor has plaintiff advised the Court of any justification for his failure to appear or otherwise prosecute this action. Moreover, plaintiff has refused correspondence from defendant's counsel on numerous occasions.
10/17/06 Letter from Evans to Dove, Ex. D. to Evans Decl.
This behavior cannot be tolerated. A litigant may not use the court system to harass a defendant with the filing of a complaint and then let his case languish. Here, plaintiff's inaction has resulted in needless expense to the City and a waste of this Court's judicial resources. Furthermore, plaintiff was warned that his continued failure to prosecute his case could result in its dismissal. Under these circumstances, the harsh sanction of dismissal is warranted.
IV. CONCLUSION
For the reasons stated above, the City's motion to dismiss for failure to prosecute is granted and this case is hereby dismissed with prejudice. The Clerk of the Court is directed to close this motion [Document #15] and this case.
SO ORDERED: