Depietro v. The City of New York et al

Filing 134

MEMORANDUM AND ORDER: Defendants' 129 motion to dismiss for failure to prosecute is GRANTED. Plaintiff's amended complaint, along with any other claims or cross-claims in this case, are hereby dismissed with prejudice. The Clerk of Court is directed to close this case. SO ORDERED by Judge Sandra L. Townes, on 11/28/2012. C/mailed. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

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f; i.LEO i.e u/J.
IN CLERK'S OFFICI
011'(
U.S. DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JOHN DEPIETRO

* DEeD 6 2012 *
BROOKLYN OFFICE

Plaintiff,
-against-

MEMORANDUM AND ORDER
09-cv-932 (SLT) (JMA)

THE CITY OF NEW YORK, ET. AL.,
Defendants.

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TOWNES, United States District Judge:

The current action arises from various damages sustained by John DePietro ("Plaintiff)
as a result of injury to his property, including the wrongful demolition of several structures on his
property in December of 2007. Plaintiff, proceeding pro se, has alleged both federal and state
law claims, seeking to hold liable for these damages A. Russo Wrecking, Inc. ("Russo
Wrecking"), the New York City School Construction Authority (the "SCA"), Assemblyman Louis
Tobacco, and the City Defendants 1 (together "Defendants"). Defendants have filed a joint
motion to dismiss Plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure
41 (b), asserting that Plaintiff's failure to comply with court orders constitutes a failure to
prosecute. For the reasons that follow, the court grants Defendants' motion.

I. BACKGROUND RELEVANT TO THE INSTANT MOTION
The following facts are derived from Defendants' motion and the record before the court
and are not disputed by Plaintiff.
Plaintiff filed his initial complaint on March 5, 2009. On February 18, 2010, Plaintiff filed
an amended complaint. Russo Wrecking, the SCA, Tobacco, and the City Defendants each
filed a separate answer to that complaint. An initial conference was held before Magistrate
Judge Joan M. Azrack on November 4, 2010 after which the court issued a scheduling order for
discovery directing that the parties serve their Rule 26 initial disclosures by December 20,2010,

1 The "City Defendants" refers, collectively, to the City of New York, Vito Mustaciuolo, Ira
Gluckman, William Deluca, Robert Ruvolo, Stephen Coyle, Albert Girimonte, Richard Gutch,
Lieutenant Falcone, Jeffrey Walter, Tracy Lavelle, and Eugene McArdle.

their additional discovery demands by January 18, 2011, their responses to those demands by
February 28, 2011, and their privilege logs and settlement letters by March 18, 2011 in
contemplation of a settlement conference set for March 24, 2011. In accordance with that
order, Defendants made their initial disclosures and served their discovery demands on
Plaintiff.
Despite Defendants' compliance with the court's order, Plaintiff served Defendants
deficient Rule 26 disclosures. On March 24, 2011, at the settlement conference, the court
ordered Plaintiff, then represented by counsel, to produce the overdue Rule 26 disclosures as
well as responses to interrogatories and documents by March 31,2011. The court also
apparently discussed Plaintiff's counsel's potential withdrawal from the case and ordered that a
motion to that effect be filed by March 31, 2011. (Document No.1 06.) On March 31, 2011,
Plaintiff's counsel requested permission to withdraw from the case "for three reasons: (1)
nonpayment of fees, (2) lack of cooperation, and (3) breakdown in communications."
(Document No. 107.) On July 14, 2011, the court granted Plaintiff's counsel's request to
withdraw and directed that Plaintiff's new counsel appear by the next status conference,
scheduled for September 14, 2011. The court warned Plaintiff that his failure to appear would
result in a recommendation that his case be dismissed for failure to prosecute. (Document No.
109.) On September 14, 2011, Plaintiff appeared, pro se, and Defendants appeared
telephonically. The court ordered Defendants to re-serve their discovery requests on Plaintiff
by September 23, 2011 and ordered Plaintiff to respond by October 21, 2011. On October 25,
four days after the deadline passed, Plaintiff requested additional time to comply with the
court's order. (Document No. 112.) The court granted that request and directed Plaintiff to
serve his complete discovery responses by November 14, 2011. (Dkt. Entry at 10/26/2011.)
Prior to the November 14 deadline, Plaintiff served separate discovery responses on Russo
Wrecking, Tobacco, and the City Defendants that only partially responded to the discovery
demands of Russo Wrecking and the City Defendants. (Defendants' Motion to Dismiss ("Defs.

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MTD") at 2.) Plaintiff did not respond to SCA's demands at all and had not responded at the
time Defendants filed their motion to dismiss. (Id. at 3.)
On November 14, 2011, the court held a status conference that all parties attended.
Plaintiff was again directed to provide Defendants with detailed responses to interrogatories
and document requests, as well as information relating to his medical/emotional claims. At this
time, Plaintiff claimed that he had some documents in his car and left during the conference to
retrieve them, but returned empty-handed because he discovered that his car had been towed.
(Defs. MTD at 3.) On January 25,2012, the court held a telephone conference, but, due to
Plaintiff's failure to timely appear, the court adjourned the conference until a later date.
On February 23, 2012, the court held a status conference at which all parties appeared.
At that conference, the court directed Plaintiff to serve on Defendants, by February 28, 2012,
various documents that had been previously requested. (Document No. 118.) The court noted
that "[i]n light of plaintiff's failure to timely produce the [identified] materials following previous
conferences with the Court, [his] failure to produce said materials by February 28,2012, will
result in my recommendation to Judge Townes that [his] case be dismissed for failure to
prosecute." (Id.) The court also scheduled dates for Plaintiff's deposition and the deposition of
his daughter. (Id.) Finally, the court ordered Defendants to file a request for a pre-motion
conference with Judge Townes by May 5, 2012. (Id.)
Despite the court's warning, Plaintiff failed to comply with the court's order. Instead, on
March 5,2012, nearly one week after the February 28,2012 deadline passed, Plaintiff
requested additional time to furnish the documents the court ordered produced. Defendants
acknowledge in their motion that on March 5, Plaintiff did partially comply with the court's
February 23, 2012 order by producing one of the documents ordered produced by the court.
(Defs. MTD at 3.) Nonetheless, on March 15, 2012, the court denied Plaintiff's request for
additional time, noting Plaintiff's "protracted failure to sufficiently respond to defendants'
discovery requests despite the numerous and concerted efforts of the Court to help him do so."

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(Dkt. Entry at 3/15/2012.) The court additionally noted that Defendants "are hereby permitted
leave to file a motion to dismiss plaintiff's complaint for failure to prosecute" and ordered
Defendants "to coordinate the filing of a single motion in which all defendants are permitted to
join." (Id.) The instant motion followed.
II. DISCUSSION
Under Rule 41 (b), a court may dismiss a complaint "for failure of the plaintiff to
prosecute or to comply with ... any order of court." FED. R. CIV. P. 41 (b). Proper dismissal
under Rule 41 (b) requires consideration of the following five factors: (1) the duration of
noncompliance; (2) whether the noncompliant party was on notice that failure to obey an order
could result in dismissal; (3) whether the opposing party would be prejudiced by further delay;
(4) balancing the court's interest in managing its docket against the noncompliant party's
interest in having an opportunity to be heard; and (5) whether less drastic sanctions are more
appropriate. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206,209 (2d Cir. 2001). No single
factor alone is dispositive. See Nita v. Connecticut Oep't of Env. Protection, 16 F.3d 482, 485
(2d Cir. 1994). The court considers each factor in turn.
A. Duration of Noncompliance
"In applying the first factor - duration - the court must consider (1) whether the failures
to prosecute were those of the plaintiff; and (2) whether these failures were of significant
duration." Samman v. Conyers, 231 F.R.D. 163, 165 (S.D.N.Y. 2005) (citing Spencer v. Doe,
139 F.3d 107, 113 (2d Cir. 1998». The court finds both elements here. As is clear from the
record, Plaintiff has done nothing to advance the discovery process, but rather has been solely
responsible for delay. As described, from the initial February 18, 2010 conference, Plaintiff
disobeyed the court's orders and consistently refused to serve the required discovery on
Defendants, despite that Plaintiff was represented by counsel for part of that time. Moreover,
the court finds that Plaintiff's failures have existed for a "significant duration," given that his
noncompliance with the court's discovery orders spans more than a two year period from the

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.
date Plaintiff filed his amended complaint to the date of Defendants' current motion to dismiss.
See Samman, 231 F.R.D. at 165 (dismissal proper, in part, because plaintiff's failures existed
for "a significant duration, as the amended complaint was filed in this case more than two years
ago").
B. Notice of Dismissal
The court further finds that Plaintiff received adequate notice that his failure to obey the
court's orders could result in dismissal. Magistrate Judge Azrack apprised Plaintiff on at least
two occasions that failure to prosecute his action would result in dismissal. In its July 14, 2011
order, following the withdrawal of Plaintiff's counsel and given Plaintiff's prior noncompliance
with court orders, the court indicated that Plaintiff's new counsel must appear by the next
scheduled status conference or else it would "recommend to Judge Townes that the case be
dismissed for failure to prosecute." (Document No. 109.) Moreover, at the February 23,2012
status conference, Plaintiff, who at this point was proceeding pro se, was ordered to produce:
(1) copies of the television newscast documenting the alleged trespass to Plaintiffs property by
Defendants; (2) copies of the photograph of Plaintiffs property taken prior to the alleged
trespass and damage to said property by Defendants; and (3) an itemized list and description of
Plaintiffs property alleged to have been converted and/or destroyed by Defendants. Plaintiff
was warned that "[i]n light of [his] failure to timely produce the above materials following
previous conferences with the Court, plaintiff's failure to produce said materials by February 28,
2012, will result in [a] recommendation to Judge Townes that plaintiff's case be dismissed for
failure to prosecute." (Document No. 118.) Plaintiff failed to fully comply with this order,
although Defendants acknowledge that six days after the court's deadline passed, Plaintiff
served on them one of the three documents ordered produced by the court. In all, Plaintiff
failed to comply with five court orders. Given that the court explicitly instructed Plaintiff on the
consequence of any failure to comply with its February 23 order, Plaintiff was aware that his
noncompliance with the court's orders could result in dismissal of his case for failure to

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prosecute.
C. Prejudice to Defendants
As to the third factor, the court notes that "prejudice resulting from unreasonable delay
may be presumed as a matter of law." Peart v. City of New York, 992 F.2d 458,462 (2d Cir.
1993). Nonetheless, even absent such a presumption the court concludes that Defendants will
be prejudiced by any further delay. This case involves damages that occurred in 2007 and
complains of conduct that, in some circumstances, dates to the 1990s, including consultations
and reviews by various city authorities and the SCA regarding construction plans for the school
and the potential environmental impact of such construction on the community. As time
passes, it becomes increasingly difficult for Defendants to locate relevant witnesses, whose
memories will fade, and relevant documents, that may not be adequately preserved. Moreover,
the court notes that Defendants have incurred the costs of attending multiple conferences and
otherwise litigating a case that has failed to progress in any meaningful way, because of
Plaintiff, who through his noncompliance with the court's discovery orders, has prevented
Defendants from effectively preparing their defense. See Samman, 231 F.R.D. at 166; see also

Salten v. County of Suffolk, 2011 WL 5024307, at *6 (E.D.N.Y. Oct. 19,2011) (finding
defendants prejudiced by plaintiff's delay because "the incident at issue ... occurred ... close
to six years ago" and "[f]urther delay will risk faded memories, loss of evidence, and witness
unavailability."). The court finds, therefore, that the third factor further tips the scale in favor of
dismissal.
D. The Balance Between Managing the Court's Docket and Plaintiff's Right to be Heard
and Consideration of Lesser Sanctions
The court finds that Plaintiff has had an adequate opportunity to be heard, despite the
fact that he has taken no substantive steps to move his case forward. Magistrate Judge Azrack
issued a series of discovery orders with which Plaintiff continually failed to comply, and has held
multiple conferences, one of which Plaintiff failed to attend. Moreover, as of the date
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Defendants filed their motion to dismiss, Plaintiff had only partially complied with the court's
discovery orders and had not responded at all to SCA's discovery requests. Thus, the fourth
factor weighs against Plaintiff as well. See Zinnamon v. Outstanding Bus Co., 2009 WL
3048722, at *5 (E.D.N.Y. Sept. 23, 2009) ("The interest of justice is not served by giving
plaintiffs unlimited chances to obey the Court's orders"); Antonio v. Beckford, 2006 WL
2819598, at *4 (S.D.N.Y. Sept. 29, 2006) (noting that "Plaintiff's repeated failure to comply with
the Court's Orders diminishes her right to have her claim heard by the Court.").
Finally, the court finds that lesser sanctions would be ineffective in motivating Plaintiff to
advance this litigation. As described, numerous extensions of discovery deadlines and explicit
warnings to Plaintiff that dismissal would result from failure to advance his case have not
prompted Plaintiff to adequately comply with the court's orders. Further, as Defendants have
suffered not just costs of litigation but also prejudice in their ability to prepare for trial, sanctions
would provide an inadequate remedy. See Samman, 231 F.R.D. at 166 (concluding that
imposing lesser sanctions on plaintiff would be ineffective in light of history of noncompliance
with prior orders and warnings that case would be dismissed for his failure to advance his
case). In sum, the court finds that the factors all weigh in favor of dismissal.
For his part, Plaintiff does not dispute that he failed to comply with most of the court's
orders, only partially complied with one, and has generally failed to advance his case in any
meaningful way. Nor does he appear to dispute that, on the record before the court, the fivefactor test favors dismissal. Nonetheless, Plaintiff, seeking to avoid that result, states that he
mistakenly believed he would be able to proceed without the assistance of an attorney,
indicates that he suffers from certain psychological issues that made compliance with the
court's orders difficult, if not impossible, and requests additional time to obtain new counsel.
Plaintiff's request comes too late. Magistrate Judge Azrack granted Plaintiff's counsel
permission to withdraw on July 14, 2011. At that time, the court provided Plaintiff with
approximately two months to obtain new counsel. Rather than secure substitute counsel,

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however, Plaintiff chose to proceed pro se at the September 14, 2011 hearing and there is no
indication that Plaintiff made any effort to find substitute counsel. Moreover, at no time in the
nearly eight months between the September 14 hearing and Defendants' decision to file the
instant motion, even as Plaintiff failed to comply with the court's discovery orders and faced
admonishment for his conduct, did Plaintiff ever indicate that he was seeking to obtain new
counselor ask the court for additional time to secure substitute counsel.
The court is likewise unpersuaded by Plaintiff's assertion that he needs more time to
locate an attorney because he suffers from psychological issues that render him unable to
comply with the court's orders. To buttress his argument, Plaintiff provides a letter from Dr.
Swarna Mani, the medical director of the health clinic where Plaintiff is undergoing treatment,
although it is not clear if Mani diagnosed Plaintiff's condition or at any time personally treated
him. In any event, Mani indicates that Plaintiff has been a patient at the clinic since December
6, 2010. Crediting Mani's letter, the court discerns no reason why Plaintiff waited until
Defendants filed their motion to dismiss to bring his condition to the court's attention. Indeed,
Plaintiff would have been aware of his condition at the September 14, 2011 hearing when he
chose to proceed pro se rather than obtain new counselor ask for any additional time to obtain
counsel. Mani also states that Plaintiff has received a diagnosis of Major Depressive Disorder,
suffers form "depressed and anxious mood, features of obsessive compulsive disorder," and
has "difficulty concentrating, trouble sleeping, functioning in life is limited." (Unnumbered
Exhibit Attached to Plaintiff's Opposition.) Mani does not, however, indicate the extent or effect
of any of those limitations on Plaintiff's ability to respond to discovery requests or comply with
the court's orders. Mani's letter, alone, is therefore insufficient to warrant an extension of time
for Plaintiff to find counsel. Even were the court persuaded, however, that Plaintiff's condition
makes it difficult for him to comply with the court's orders, dismissal would nonetheless be
appropriate. First, Plaintiff's history of noncompliance with the court's orders dates back to
when Plaintiff was still represented by counsel and there is no reason to believe that such

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noncompliance resulted from Plaintiff's medical condition. Second, Plaintiff had ample
opportunity over the ten months since his attorney withdrew to raise with Magistrate Judge
Azrack his need for additional time to seek counsel and to bring to the court's attention the
existence and nature of his medical condition. Plaintiff did neither. Indeed, Defendants'
discovery requests included requests for medical authorizations to determine Plaintiff's medical
condition and Plaintiff's attorney explicitly cited Plaintiff's failure to provide such authorizations
as a reason for his request to withdraw as counsel. (See Document No. 107.) Plaintiff has
therefore failed to demonstrate why dismissal would not be appropriate pursuant to Rule 41 (b).
III. CONCLUSION
For the reasons stated, Defendants' motion to dismiss [129] for failure to prosecute is
GRANTED. Plaintiff's amended complaint, along with any other claims or cross-claims in this
case, are hereby dismissed with prejudice. The Clerk of Court is directed to close this case.

SO ORDERED.

/S/ Judge Sandra L Townes
SANDRA L. TOWNES
United States District Judge
Dated:

~ j(J',2012
Brooklyn, New York

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