Saltzman v. Town of Hanson et al

Filing 18

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER RE: MOTION TO DISMISS FOR FAILURE TO PROSECUTE BY DEFENDANTS TOWN OF HANSON, MICHAEL FINGLAS, SR. AND JEAN MARIE SMITH (DOCKET ENTRY #9)is DENIED. The parties shall appear for a status conference on November 9, 2011, at 2:30 p.m. (Feeney, Eileen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

BONITA SALTZMAN,
Plaintiff,
v.

CIVIL ACTION NO.
11-10056-MBB

TOWN OF HANSON,
MICHAEL FINGLAS, SR.
and JEAN MARIE SMITH,
Defendants.

MEMORANDUM AND ORDER RE:
MOTION TO DISMISS FOR FAILURE TO PROSECUTE
BY DEFENDANTS TOWN OF HANSON,
MICHAEL FINGLAS, SR. AND JEAN MARIE SMITH
(DOCKET ENTRY # 9)
October 25, 2011

BOWLER, U.S.M.J.
Pending before this court is a motion filed by defendants
Town of Hanson, Michael Finglas, Sr. and Jean Marie Smith
(“defendants”) to dismiss the complaint.

(Docket Entry # 9).

Plaintiff Bonita Saltzman (“plaintiff”) opposes dismissal of the
complaint.

(Docket Entry # 10).

On July 7, 2011, this court

held a hearing and took the motion (Docket Entry # 9) under
advisement.

PROCEDURAL HISTORY
The five count pro se complaint sets out the following

claims against defendants:

(1) a due process claim under 42

U.S.C § 1983 for refusing to produce transcripts of a municipal
hearing (Count One); (2) wrongful termination (Count Two); (3)
breach of the implied covenant of good faith and fair dealing
(Count Three); (4) termination without just cause (Count Four);
and (5) intentional infliction of emotional distress.
Five).

(Count

Defendants seek to dismiss on all counts under Rule

41(b)(2)(B), Fed. R. Civ. P. (“Rule 41(b)(2)(B)”), because
plaintiff failed to appear at two consecutive conferences before
this court.

(Docket Entry # 9).

Defendants claim that in doing

so plaintiff failed to prosecute this case.
Plaintiff submits that she never received notice of the May
3 and May 17, 2011 status conferences.

(Docket Entry # 10).

She

maintains that her former “cohabitational partner” at her former
residence in Hanson, Massachusetts intercepted her mail on
several occasions.

(Docket Entry # 10, Ex A).

Plaintiff also

attributes mail delivery errors to the failure of a postal clerk
in Hanson to advise plaintiff of the proper procedure to forward
mail.

She denies prior knowledge of the status conferences

beyond an intuitive “gut feeling” that prompted her to place a
telephone call to the Clerk’s Office on the day of the scheduled
May 17, 2011 conference.

(Docket Entry # 10).

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In response, defendants submit that the “evidence” of mail
delivery errors and non-receipt of notices of the status
conferences is inadequate.

Characterizing the arguments as

“incredible,” defendants point out that all of plaintiff’s mail
was successfully forwarded to her new address.
14).

(Docket Entry #

Defendants question plaintiff’s claims of a “gut feeling”

and awareness of the contents of mail that she denies receiving.
Defendants reject plaintiff’s assertion of intuition and argue
that she knowingly failed to appear.

(Docket Entry # 14).

In response, plaintiff asserts she is prepared to present
evidence that she was experiencing difficulty receiving mail at
her new address in Plymouth, Massachusetts and claims that the
Hanson postmaster’s “integrity” is at issue in that matter.
(Docket Entry # 15).

Plaintiff also defends her telephone call

to this court on May 17, 2011, as the product of intuition.
(Docket Entry # 15).

FACTUAL BACKGROUND
On December 16, 2010, plaintiff filed this action in
Massachusetts Superior Court (Plymouth County).

The complaint

identifies her address as 370 Indian Head Street in Hanson,
Massachusetts (“the Hanson address”).

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January 10, 2011,

defendants timely removed this action to the United States
District Court, District of Massachusetts.

In a March 21, 2011

response to a January 28, 2011 Memorandum and Order inquiring
about consent to proceed before a magistrate judge, plaintiff
explained that she had been a victim of mail theft and she was
having her mail forwarded to her new address of 99 Snowgoose Lane
in Plymouth, Massachusetts (“the Plymouth address”) starting on
March 30, 2011.

(Docket Entry # 6).

The response also included

a copy of an online form submitted to the U.S Postal Inspection
Service, which claimed that plaintiff’s “cohabitational partner”
intercepted the January 28, 2011 Memorandum and Order.
On April 5, 2011, this court sent an electronic notice of a
scheduling conference set for May 3, 2011, to defendants and
mailed notice to plaintiff at her address of record at that time,
i.e., the Hanson address.
conference.

Plaintiff failed to appear at the

The clerk notes from the conference included a

warning that “failure to appear for the next conference may
result in dismissal of the case.”
conference of May 17, 2011.

The clerk notes also noted the

The Clerk mailed the clerk notes for

the May 3, 2011 conference to plaintiff.
On May 17, 2011, plaintiff once again failed to appear at
the scheduling conference.

The Clerk mailed the clerk notes for

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the May 17, 2011 conference to plaintiff’s newly provided address
in Plymouth.

Also on May 17, 2011, defendants moved to dismiss

the case pursuant to Rule 41(b)(2)(B).

(Docket Entry # 9).

On May 25, 2011, plaintiff filed an opposition to the motion
to dismiss along with her previously submitted response to this
court dated March 17, 2011, explaining that she did not receive
the January 28, 2011 Memorandum and Order. (Docket Entry # 10,
Ex. A).

The response also included a copy of a change of address

form submitted to the U.S. Post Office; a report dated May 19,
2011, filed with the Hanson Police Department regarding misplaced
mail; a letter from the postmaster of Hanson confirming
plaintiff’s change of address; and a certified mail receipt
addressed to this court dated March 21, 2011.

(Docket Entry #

10, Ex. B, C, D & E).
On May 27, 2011, this court set a hearing for the motion to
dismiss for June 10, 2011.

(Docket Entry # 11).

The Clerk

mailed notice of the hearing to plaintiff at the Plymouth
address.

(Docket Entry # 11).

On June 15, 2011, defendants filed a reply to the opposition
to the motion to dismiss.

(Docket Entry # 14).

reply, defendants submitted an affidavit.

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Along with the

(Docket Entry # 14,

Ex. 1).

On June 27, 2011, plaintiff filed a sur-reply.

Entry # 15).

(Docket

Both parties appeared at the July 7, 2011 hearing.

On July 12, 2011, plaintiff submitted a motion to present
rebuttal evidence to this court and provided an accompanying
affidavit.

This court allowed the motion on August 1, 2011.

(Docket Entry # 16).

Plaintiff’s affidavit described mishandled

pieces of mail that she received from the Hanson post office.
Plaintiff averred that she had still not received notice of the
May 17, 2011, status conference.

(Docket Entry # 16, Ex. 1).

DISCUSSION
Defendants argue that this case should be dismissed pursuant
to Rule 41(b)(2)(B) because plaintiff repeatedly failed to appear
before this court at the scheduled status conferences, despite a
warning from this court that failure to appear at the May 17,
2011 conference could result in a dismissal of the case.
Entry # 9).

(Docket

Defendants submit that plaintiff’s failure to

contact them, as well as her telephoning the Clerk, suggests that
she was aware of the May 17, 2011 date and was intentionally
absent.
Rule 41(b)(2)(B) provides that, “If the plaintiff fails to
prosecute or to comply with these rules or a court order, a

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defendant may move to dismiss the action or any claim against
it.”

Rule 41(b)(2)(B), Fed. R. Civ. P.

It is well established

that a case may generally be dismissed for lack of prosecution.
Link v. Wabash R. Co., 370 U.S. 626, 629 (1962).

Despite this

broad authority to dismiss, there is a “strong policy favoring
the disposition of cases on the merits.”

Enlace Mercantil

Internacional, Inc. v. Senior Indus., Inc., 848 F.2d 315, 317
(1st Cir. 1988).
In determining whether a case should be dismissed, the court
must attempt to “fairly balance the court’s venerable authority
over case management with the larger concerns of justice.”

Malot

v. Dorado Beach Cottages Associates, 478 F.3d 40, 43-44 (1st Cir.
2007).

“[F]airness requires that some limits be placed on” the

use of dismissal as a sanction.

Velazquez-Rivera v. Sea-Land

Serv., Inc., 920 F.2d 1072, 1076 (1st Cir. 1990).

Moreover,

unconditional dismissal with prejudice is a “harsh” and “severe”
outcome.

Enlace Mercantil, 848 F.2d at 317.

In order to justify

dismissal, the failure to prosecute or comply with court orders
pursuant to Rule 41 must be “extreme.”

Richman v. Gen. Motors

Corp., 437 F.2d 196, 199 (1st Cir. 1971).
The plaintiff may successfully argue mitigating
circumstances in downplaying a characterization of extreme

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conduct.

Robson v. Hallenbeck, 81 F.3d 1, 3 (1st Cir. 1996).

“Ordinarily, the plaintiff is given an opportunity to explain the
default or argue for a lesser penalty; but . . . there is no
mechanical rule.”

Id. (citing Link v. Wabash R. Co., 370 U.S. at

632).
The sanction of dismissal is ordinarily “reserved for cases
of ‘extremely protracted inaction (measured in years).’”
Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 4 (1st Cir. 2006)
(citing Cosme Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir. 1987)).
In the case at bar, “extremely protracted inaction” is lacking.
The dereliction in this case spanned the dates of May 3 through
May 25, 2011, a 22 day period during which plaintiff missed the
two scheduled conferences.

In an analogous case, Pomales v.

Celulares Telefonica, Inc., 342 F.3d 44, 49 (1st Cir. 2003), the
plaintiff caused a four month delay when she discharged her
counsel.

The First Circuit in Pomales found that the four month

delay was neither long nor burdensome enough to merit dismissal.
In the case at bar, the delay of less than a month is similarly
neither long nor burdensome and falls well short of an extreme
failure to prosecute.

Furthermore, there is not a history of

repeated inaction or noncompliance.
370 U.S. at 633.

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See Link v. Wabash R. Co.,

Moreover, plaintiff’s conduct does not suggest an
intentional or willful failure to appear at the two status
conferences.

See, e.g.

Richman v. Gen. Motors Corp., 437 F.2d

at 197 (plaintiff did not fail to prosecute when he missed
scheduling conference due to a mix-up with his attorney).
Plaintiff presented evidence of a problem with her information
stream, and there is no indication that she was attempting to
intentionally avoid appearing before this court at the scheduled
status conferences.

Neither the length of time elapsed nor the

circumstances under which the delay occurred rise to the
“extreme” threshold.
Defendants additionally argue that because plaintiff was
warned of dismissal subsequent to her May 3, 2011 failure to
appear, dismissal was necessarily merited upon her failure to
appear at the May 17, 2011 conference.

This argument also fails.

Prior warnings, while at times sufficient to justify dismissal,
are not dispositive.

See Malot v. Dorado Beach Cottages

Associates, 478 F.3d at 45.
Defendants also claim that the telephone call plaintiff
placed on May 17, 2011, suggests that she had in fact received
notice of the status conference scheduled on that day.
Entry # 14).

This assertion is insufficient to justify

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(Docket

dismissal, however, because plaintiff’s countervailing
documentation renders defendants’ position on this issue
speculative.

Faced with this factual uncertainty, dismissal is

not warranted.

CONCLUSION
In accordance with the foregoing discussion, the motion to
dismiss (Docket Entry # 9) is DENIED.

The parties shall appear

for a status conference on November 9, 2011, at 2:30 p.m.

/S/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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