Opinion
5:19-CV-01573(TWD)
10-26-2020
ROBIN L. H., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
APPEARANCES: ROBIN L. H.. Plaintiff, pro se 121 Wilson Avenue Liverpool, NY 13088 U.S. SOCIAL SECURITY ADMIN. OFFICE OF THE GENERAL COUNSEL Counsel for Defendant JFK Federal Building, Room 625 New York, NY 10278 KEVIN M. PARRINGTON, ESQ. Special Assistant U.S. Attorney
| APPEARANCES: | OF COUNSEL: |
| ROBIN L. H..Plaintiff, pro se121 Wilson AvenueLiverpool, NY 13088 | |
|---|---|
| U.S. SOCIAL SECURITY ADMIN.OFFICE OF THE GENERAL COUNSELCounsel for DefendantJFK Federal Building, Room 625New York, NY 10278 | KEVIN M. PARRINGTON, ESQ.Special Assistant U.S. Attorney |
DECISION and ORDER
I. INTRODUCTION
This matter is presently before the Court to consider whether this action, which is an appeal from an unfavorable determination of the Social Security Administration regarding Plaintiff's disability, should be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure based upon pro se Plaintiff's failure to prosecute. Defendant has moved for dismissal. (Dkt. No. 13.) For the reasons that follow, the Court grants Defendant's Motion to Dismiss (Dkt. No. 13) and dismisses Plaintiff's Complaint (Dkt. No. 1) with prejudice.
II. PROCEEDINGS TO DATE
Plaintiff commenced this action pursuant to 42 U.S.C. §405(g) for review of an adverse decision of the Commissioner of Social Security by the filing of a Complaint on December 19, 2019. (Dkt. No. 1.) The Clerk provided Plaintiff with a copy of the Court's Pro Se Handbook, Local Rules, and Notice. (Dkt. No. 5.) A Consent to the Jurisdiction of the Magistrate Judge was also filed. (Dkt. No. 8.) The Commissioner then filed the certified administrative record on March 23, 2020, and served it on Plaintiff as directed by the Court. (Dkt. Nos. 10, 11; Text Notice 3/24/2020.) Thereafter, the Court issued a Text Notice on April 2, 2020, notifying Plaintiff that her brief was due May 7, 2020. (Text Notice 4/2/2020.) When Plaintiff's brief was not received by the due date, the Court issued a Text Order on May 26, 2020, which sua sponte extended Plaintiff's time to file her brief by June 15, 2020. (Dkt. No. 12.) That Text Order also noted for Plaintiff that pursuant to the Northern District of New York's General Order 18, "'a party's brief may be its only opportunity to set forth arguments that entitle the party to a judgment in its favor. The failure to file a brief by either party may result in the consideration of the record without the benefit of the party's arguments. In the event a plaintiff fails to submit a brief, the defendant may file a motion to dismiss for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b), and the action may be dismissed with prejudice on the basis of the plaintiff's failure to file a brief.'" Id. (citing N.D.N.Y. General Order 18). The Court further directed that "if plaintiff fails to file a brief by 6/15/2020, defendant should file a motion to dismiss pursuant to General Order 18 by 6/30/2020." Id.
Thereafter, when Plaintiff again did not file her brief as directed, Defendant filed the present Motion to Dismiss for Failure to Prosecute on June 23, 2020. (Dkt. No. 13.) Plaintiff was directed to file her response to the motion by July 20, 2020. Id. However, as of the date of this Decision and Order, Plaintiff has failed to file a response to the motion. Plaintiff has also failed to file a brief, or request an extension of any of the deadlines set by the Court. Plaintiff has likewise failed to contact the Court with any further information; she has not indicated she intends to prosecute this case; and she has not otherwise communicated with the Clerk regarding this action.
III. DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute the case, or to comply with the procedural rules or orders of the court. Fed. R. Civ. P. 41(b); see also Link v. Wabash R.R. Co., 370 U.S. 626 (1962). This power to dismiss may be exercised when necessary to achieve orderly and expeditious disposition of cases. See Freeman v. Lundrigan, No. 95-CV-1190, 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996) (Pooler, J.). Even though Rule 41(b) speaks only of a dismissal on a motion by a defendant, courts have recognized that the rule does not abrogate a district court's inherent power to dismiss a complaint, sua sponte, for failure to prosecute. See Saylor v. Bastedo, 623 F.2d 230, 238-39 (2d Cir. 1980). It is also well-settled that the term "these rules" in Fed. R. Civ. P. 41(b) refers not only to the Federal Rules of Civil Procedure but also to the local rules of practice for a district court. See Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006). In Social Security cases, General Order 18, under the heading " NOTIFICATION OF THE CONSEQUENCES OF FAILING TO FILE A BRIEF AS REQUIRED BY PARAGRAPH C.(1)(A-D) " (emphasis in original), provides that an "[a]ction may be dismissed with prejudice on the basis of the plaintiff's failure to file a brief." N.D.N.Y. General Order 18. Also, Local Rule 41.2 provides that "Whenever it appears that the plaintiff has failed to prosecute an action or proceeding diligently, the assigned judge shall order it dismissed." N.D.N.Y. L.R. 41.2(a).
The Court will provide pro se Plaintiffs with a copy of all of the unpublished decisions cited in this Report-Recommendation in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). --------
The correctness of a Rule 41(b) dismissal is determined in light of five factors: (1) the duration of the plaintiff's failure to comply with the court order (or the court's procedural rules); (2) whether 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 receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal. Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996); United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). Moreover, although "a decision to dismiss stands a better chance on appeal if the appellate court has the benefit of the district court's reasoning" on each of the five factors, we do not "require the [district] court to discuss the factors on the record." Id.
In considering the duration of Plaintiff's failure to prosecute her claim, the Court notes that Local Rule 41.2(a) of the Northern District of New York states that "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). Upon review of the docket, it appears that Plaintiff has failed to file anything since she commenced the action on December 19, 2019, by filing the Complaint, a Motion to proceed in forma pauperis, and the consent to the Magistrate Judge form. (Dkt. Nos. 1, 3, 8.) After not having any further contact from Plaintiff either in person, by telephone, or by letter, the Court provided her with two opportunities to file a brief and she did not do so. (Text Notice 4/2/2020; Dkt. No. 12.) Plaintiff was warned that failure to file a brief would result in dismissal of the action. (Dkt. No. 12.) Despite prodding from the Court, Plaintiff has not followed the Court's Orders and directives after being given opportunities to do so. Accordingly, the Court finds the first factor weighs in favor of dismissal.
"The Second Circuit requires that the plaintiff receive adequate notice that the case could be dismissed due to inaction." Folk v. Rademacher, No. 00-CV-199S, 2005 U.S. Dist. LEXIS 32899, at *10, 2005 WL 2205816, *4 (W.D.N.Y. Sept. 9, 2005) (citing Martens v. Thomann, 273 F.3d 159, 180-81 (2d Cir. 2001). Here, Plaintiff failed to contact the Court or file a brief or request an extension after being given an opportunity to do so by the Court. (Text Notice 4/2/2020; Dkt. No. 12.) As noted above, Plaintiff was specifically notified by Text Order (Dkt. No. 12) that her failure to file a brief would result in dismissal. See Nolan v. Primagency, Inc., No. 07 Civ. 134, 2008 U.S. Dist. LEXIS 31268, at *10, 2008 WL 1758644, at *3 (S.D.N.Y. Apr. 16, 2008) ("The Second Circuit has held that where a court puts a plaintiff on notice that the court is considering dismissal, and a plaintiff fails to file a document explaining the failures and outlining why the action should not be dismissed, this element has been met.") (citing Shannon v. General Elec. Co., 186 F.3d 186, 194-95 (2d Cir. 1999)); Europacific Asset Mgmt. Corp. v. Tradescape, Corp., 233 F.R.D. 344, 353 (S.D.N.Y. 2005) ("A court's prior warning of dismissal, and subsequent inaction by a plaintiff, weighs in favor of dismissal."). Thus, the second factor weighs in favor of dismissal.
The third factor is also satisfied as further delay is likely to prejudice Defendant who has filed required documents in accordance with General Order 18 and as directed by the Court. (Dkt. Nos. 10, 11, 13.) Due to Plaintiff's inaction, nothing of substance has been completed in this case since the filing of the administrative transcript (Dkt. No. 10) over six months ago. Therefore, the third factor also weighs in favor of dismissal.
Under the circumstances, the Court finds the need to alleviate congestion on the Court's docket, and move cases toward trial, outweighs Plaintiff's right to receive a further chance to be heard in this case. It is the need to monitor and manage cases such as this when one party refuses to participate that delays the resolution of this and other cases, and that contributes to the Second Circuit's relatively long median time to disposition for social security cases.
Finally, the Court has carefully considered sanctions less drastic than dismissal of Plaintiff's complaint and finds them to be inadequate under the circumstances.
IV. CONCLUSION
The Court's records fail to reveal that any meaningful steps have been taken by Plaintiff to pursue her claims in this action. Despite several orders from the Court directing Plaintiff to take specific steps to pursue this action, Plaintiff has failed to comply and has provided no information to the Court concerning any measures taken to continue the action, or from which the Court could meaningfully gauge her level of persistence and enthusiasm for pursuing the action. Accordingly, based upon Plaintiff's failure to comply with directives from the Court or to file a brief, and after considering the factors relevant to a dismissal under Rule 41(b) of the Federal Rules of Civil Procedure, Defendant's Motion to Dismiss (Dkt. No. 13) is granted and Plaintiff's complaint is dismissed with prejudice.
WHEREFORE, it is hereby
ORDERED that Defendant's Motion to Dismiss (Dkt. No. 13) is GRANTED, and the Complaint is DISMISSED with prejudice, for failure to prosecute; and it is further
ORDERED that the Clerk provide Plaintiff with copies of Folk v. Rademacher, No. 00-CV-199S, 2005 U.S. Dist. LEXIS 32899, 2005 WL 2205816 (W.D.N.Y. Sept. 9, 2005); Freeman v. Lundrigan, No. 95-CV-1190, 1996 U.S. Dist. LEXIS 12296, 1996 WL 481534 (N.D.N.Y. Aug. 22, 1996); and Nolan v. Primagency, Inc., No. 07 Civ. 134, 2008 U.S. Dist. LEXIS 31268, 2008 WL 1758644 (S.D.N.Y. Apr. 16, 2008); and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on Plaintiff in accordance with the Court's local rules.
IT IS SO ORDERED.
Dated: October 26, 2020
Syracuse, NY
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge