Summary
dismissing a lawsuit with prejudice because a plaintiff had had no contact with the defendant for "a significant period of time"
Summary of this case from Peña v. Madelaine ChocolateOpinion
06 Civ. 212 (SAS).
May 14, 2007
Plaintiff (Pro Se): Juel Roundtree, New York, New York.
On Behalf of Plaintiff: United States Courthouse, Pro Se Office, New York, New York.
For Defendants: Julinda Dawkins, Assistant Corporation Counsel, Special Federal Litigation Division, New York, New York.
MEMORANDUM OPINION AND ORDER
On January 31, 2007, defendants Gregory McVay, Nathaniel Thomas and Andrea Jordan (collectively, "defendants") moved to dismiss the above-captioned case for failure to prosecute. Specifically, defendants complain that the whereabouts of Juel Roundtree have been unknown for quite some time. In fact, plaintiff's former attorneys requested permission to withdraw as counsel because of the difficulties they had in locating their client. This Court granted that request in an endorsement dated January 8, 2007.
Although Roundtree fashioned his case as an " ex rel" action, the United States did not file the Complaint or otherwise represent plaintiff. Rather, Roundtree's Complaint, which is hand-written and entitled "Civil Rights Petition Pursuant to 42 U.S.C. Section 1983," is signed by Roundtree as a pro se litigant. Moreover, former Chief Judge Michael B. Mukasey dismissed, sua sponte, all of plaintiff's claims except his excessive force claim against the above-named defendants. See Order of Partial Dismissal dated January 11, 2006.
See 1/31/07 Letter from Assistant Corporation Counsel Julinda Dawkins ("[B]y letter dated November 3, 2006, plaintiff's counsel requested a sixty (60) day stay due to difficulty in locating their client.").
See 1/5/07 Letter from Shannon McNulty, Esq. of Curtis, Mallet-Prevost, Colt Mosle LLP ("Since November 3, [2006], we have consistently maintained contact with the New York Department of Homeless Shelters, which maintains the facility at 400 East 30th Street, Mr. Roundtree's last available address. Mr. Roundtree has not checked in at 400 East 30th Street, nor at any homeless shelter within the New York City Shelter Care Information Management System (SCIMS) as of January 3rd [2007]. At this time, his whereabouts remain unknown.").
On February 5, 2007, this Court issued an Order directing plaintiff to respond to defendants' motion to dismiss by March 2, 2007, or risk dismissal of his lawsuit. That Order was sent to plaintiff at his last known address at 400 East 30th Street, New York, New York 10016. The Order was not delivered to plaintiff but was instead returned to the Court, marked "Return to Sender — Unable to Forward." Chambers then inquired of this Court's Pro Se Office as to whether plaintiff provided a change of address. He had not. Nor had plaintiff contacted this Court, his adversary, or his former counsel since January 2007. This posed a problem as plaintiff's deposition was scheduled to take place in March/April of 2007 according to the Scheduling Order signed by his former counsel.
See 2/5/07 Order ("IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court will decide the motion [to dismiss] solely on the papers submitted by defendants.").
The Scheduling Order, which was docketed on November 9, 2006, contained a discovery cut-off date of April 25, 2007. Except for the instant motion, there has been no activity in plaintiff's case since his former counsel's request to be relieved in January 2007.
There is ample authority for district courts to dismiss an action with prejudice because of a plaintiff's failure to prosecute. This power is expressly recognized in Rule 41(b) of the Federal Rules of Civil Procedure, which states:
See Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962). Accord Shannon v. General Elec. Co., 186 F.3d 186, 193-94 (2d Cir. 1999) (affirming district court's dismissal under Rule 41(b) for failure to prosecute).
Involuntary Dismissal: Effect Thereof. For 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. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision . . . operates as an adjudication upon the merits.
Fed.R.Civ.P. 41(b). An order of dismissal pursuant to Rule 41(b) is within the sound discretion of the district court. See Nita v. Connecticut Dep't of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994).
In determining whether dismissal is appropriate under Rule 41(b), courts must balance the following factors:
(1) the duration of the plaintiff's failure to comply with the court order; (2) whether the plaintiff was on notice that 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).
A district court need not exhaustively discuss the above factors on the record in order to be affirmed on appeal. However, "notions of simple fairness suggest that a pro se litigant should receive an explanation before his or her suit is thrown out of court."
See Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).
Id.
Not much discussion is needed here to justify dismissal of the instant action. Obviously, defendants are at a severe disadvantage in not knowing the address of the pro se litigant who has brought suit against them. Despite his former counsel's withdrawal from the lawsuit, it remained plaintiff's duty to prosecute his case diligently. Plaintiff failed to do so when he vanished without a trace. With regard to residence, it is a plaintiff's obligation to inform the Pro Se Office of any change in address. Moreover, the fact that Roundtree did not receive this Court's February 5th Order does not save his case from dismissal. Nor does his status as a pro se litigant. Under the circumstances, the only appropriate course of action is for this Court to invoke the harsh remedy of dismissal.
See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982) ("The primary rationale underlying a dismissal under 41(b) is the failure of plaintiff in his duty to process his case diligently.").
See Hibbert v. Apfel, No. 99 Civ. 4246, 2000 WL 977683, at *2 (S.D.N.Y. July 17, 2000).
See Mathews v. U.S. Shoe Corp., 176 F.R.D. 442, 444-45 (W.D.N.Y. 1997) ("The Magistrate Judge ordered plaintiff to comply with defendant's discovery requests within thirty days of the date of issuance of the order, and warned plaintiff that if she failed to do so, the action would be subject to dismissal for failure to prosecute. . . . Although the copy of the order that defendant mailed to plaintiff was apparently never received by her, that is no fault of defendant's, and can only be attributed either to plaintiff's deliberate failure to claim the letter, or her failure to advise the court of a change of address.").
See McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988) ("And, while 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.").
Dismissal should be exercised sparingly and only when the Court is "sure of the impotence of lesser sanctions." Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980). Here, given plaintiff's complete inaction, nothing short of dismissal would serve as an effective sanction.
In sum, a lawsuit cannot continue where the plaintiff fails to disclose his new address to his adversary and to the Court. This is especially true where, as here, plaintiff has had no contact with the Court or his adversary for a significant period of time. Accordingly, for the foregoing reasons, this case is dismissed with prejudice. The Clerk of the Court is directed to close this case.
SO ORDERED: