Lopa et al v. Fireman's Fund Insurance Company

Filing 57

ORDER ADOPTING REPORT AND RECOMMENDATIONS. See attached. Ordered by Judge Sterling Johnson, Jr on 3/31/2014. (Droubi, Luna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FRANK LOPA and
ROSEMARY LOPA,
Plaintiffs,
11-CV-2973(SJ) (VMS)
v.
ORDER ADOPTING
REPORT AND
RECOMMENDATION

FIREMAN’S FUND INSURANCE
COMPANY,

Defendant.
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APPEARANCES
LAW OFFICES OF JERRY BROWN
201 West Lake Street, Suite 142
Chicago, IL 60606
By:
Jerry Brown
Attorney for Plaintiffs
ROBINSON & COLE LLP
280 Trumbull Street
Hartford, CT 06103
By:
John P. Malloy
Benjamin B. Adams
Attorney for Defendant
JOHNSON, Senior District Judge,
Plaintiff Frank Lopa and Rosemarie Lopa (collectively, “Plaintiffs” or “the
Lopas”) brought this action alleging breach of contract against Defendant Fireman’s
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Fund Insurance Company (“Defendant” or “Fireman’s Fund”) after a fire caused
extensive damage to their residence.
Presently before the Court is Defendant’s motion to dismiss pursuant to
Federal Rule of Civil Procedure 41(b), alleging failure to prosecute. The matter was
referred to Magistrate Judge Vera M. Scanlon for a Report and Recommendation
(“Report”). Judge Scanlon issued a Report on February 18, 2014, recommending: (1)
Defendant’s motion be denied without prejudice, (2) Plaintiffs be ordered to pay
Defendant’s reasonable attorneys’ fees and costs in bringing this motion, or some
portion thereof, and (3) Defendant be ordered to submit its time records concerning
the present motion.
Following the issuance of the Report, Defendant made a timely objection to the
Court on March 4, 2014. In its submission, Defendant objected to the Report insofar
as Judge Scanlon recommended denying the Motion to Dismiss for Failure to
Prosecute, without prejudice. Upon review of the parties’ filings, the Report, and
Defendant’s objection, this Court adopts and affirms Judge Scanlon’s Report in its
entirety.
DISCUSSION
I.

Applicable Law
a. Standard of Review

A district court judge may designate a magistrate judge to hear and determine
certain motions pending before the Court and to submit to the Court proposed findings
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of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. §
636(b)(1). Within 14 days of service of the recommendation, any party may file
written objections to the magistrate’s report. See id. If either party objects to the
magistrate judge’s recommendations, the district court “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” See id.; see also United States v.
Tortora, 30 F.3d 334, 337 (2d Cir. 1994).

A de novo determination entails an

independent review of all objections and responses to the magistrate’s findings and
recommendations. See, e.g., Tortora, 30 F.3d at 337–38; cf. Bristol-Myers Squibb Co.
v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1045 (2d Cir. 1992).
The Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the report
and recommendation to which no objections are addressed. See Thomas v. Arn, 474
U.S. 140, 150 (1985). In addition, failure to file timely objections may waive the right
to appeal this Court’s Order. See 28 U.S.C. § 636(b)(1); Small v. Sec’y of Health &
Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).

b. Failure to Prosecute
Rule 41(b) of the Federal Rules of Civil Procedure provides that “[i]f the
plaintiff fails to prosecute or to comply with these rules or a court order, a defendant
may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b).

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However, dismissal for failure to prosecute is a “harsh remedy to be utilized only in
extreme situations.” Storey v. O’Brien, 482 F. App’x. 647, 648 (2d Cir. 2012)
(quoting U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004)).
“Because the sanction of dismissal with prejudice has harsh consequences for
clients, who may be blameless, we have instructed that it should be used only in
extreme situations, . . . and even then only upon a finding of willfulness, bad faith, or
reasonably serious fault.” Drake, 375 F.3d at 254 (internal quotation marks and
citations omitted). With respect to a pro se litigant, claims should be dismissed for
failure to prosecute “only when the circumstances are sufficiently extreme.” LeSane v.
Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (internal quotation marks
omitted).
Although dismissal under Rule 41(b) lies within the discretion of the court, the
Second Circuit has set forth five factors to be considered in determining whether
dismissal is appropriate: (1) the plaintiff's failure to prosecute caused a delay of
significant duration; (2) the plaintiff was given notice that failure to comply or further
delay would result in dismissal; (3) the defendant is likely to be prejudiced by further
delay; (4) the need to alleviate court calendar congestion balanced against plaintiff's
right to an opportunity for a day in court; and (5) the efficacy of lesser sanctions.
Drake, 375 F.3d at 254; Shannon v. Gen. Elec. Co., 186 F.3d 186, 193–94 (2d Cir.
1999). No one factor is dispositive. Drake, 375 F.3d at 254.

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II.

Application

Here, Defendant objects to Judge Scanlon’s recommendation that its motion be
denied without prejudice, and requests that the motion instead be granted and
Plaintiffs’ claims be dismissed with prejudice. Defendant argues that “Plaintiffs have
repeatedly failed to comply with numerous orders of the Court compelling them, on
pain of sanctions including dismissal, to either respond to discovery, communicate
with counsel, or otherwise comply with court orders.” (Def.’s Obj. to Report (Dkt. No.
54) at 1.) Defendant also argues that an “insubstantial document production” has
“prejudiced its ability to fully defend itself.” (Def.’s Obj. to Report (Dkt. No. 54) at
4.)
In the case at bar, after conducting a de novo review of the Report, the Court
concludes that Magistrate Judge Scanlon’s Report should be approved and adopted,
for the reasons that follow. The parties were not experiencing any issues with respect
to the conduct of discovery until Plaintiff’s counsel moved to withdraw on January 12,
2012. After Plaintiffs’ counsel withdrew, Plaintiffs proceeded pro se. (See Report at 4
n.1.) On March 26, 2013, Fireman’s Fund filed its Motion to Dismiss. On April 4,
2013, Plaintiffs opposed the motion via letter, and indicated that they were
experiencing a number of health issues that caused delays in the case. (Dkt. No. 43.)
Plaintiffs later retained counsel in May of 2013 (Dkt. No. 38), and filed a full response
to the motion soon thereafter. (Dkt. No. 44.)

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Magistrate Judge Scanlon performed a detailed analysis of the five Drake
factors, determining that the first two factors might tilt in favor of dismissal, but that
the last three did not. As a result, she concluded that dismissal of the Plaintiffs’ claims
was not warranted at this time.
The Court recognizes Fireman’s Fund’s frustration; the nearly two year delays
are significant. The Court, mindful that dismissal is an extreme remedy, agrees with
Magistrate Judge Scanlon’s balancing of the Drake factors, and agrees that monetary
sanctions in the form of attorneys’ fees are the appropriate remedy in light of the
Circuit’s preference for resolution on the merits. Accordingly, at the present time, the
Court will not dismiss Plaintiffs’ claims.

III.

Conclusion

In sum, upon review of Judge Scanlon’s Report and Defendant’s objections,
and after reviewing de novo those portions of the record to which the objections were
made, the Court adopts the Report and Recommendation and hereby denies Fireman
Fund’s Motion to Dismiss.
SO ORDERED.

DATED: March 31, 2014
Brooklyn, New York

_____________/s/__________________
Sterling Johnson, Jr, U.S.D.J.

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