Drummonds v. Aurora Loan Services, LLC et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION: For the reasons set forth in the attached Memorandum and Order,the magistrate judge's Report and Recommendation is adopted in its entirety, and the case is dismissed for lack of prosecution. The Clerk of the Court is directed to send a copy of this Memorandum and Order by overnight mail to plaintiff pro se at the address listed for him on the docket, and note the mailing and the accompanying tracking number. The Clerk is further directed to close this case. Ordered by Judge Roslynn R. Mauskopf on 6/30/2015. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ALANDO DRUMMONDS,
Plaintiff,
- against -

MEMORANDUM AND ORDER
14-CV-1994 (RRM) (RML)

AURORA LOAN SERVICES, LLC et al.,
Defendants.
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ROSLYNN R. MAUSKOPF, United States District Judge.
Pro se plaintiff Alando Drummonds has filed this action for, inter alia, “rescission of an
illegal and void Mortgage and Note to certain real estate.” Complaint, Doc. No. 1, ¶ 5. Before the
Court is the Report and Recommendation (“R&R”) of the Honorable Robert M. Levy
recommending that this action be dismissed for failure to prosecute. See Doc. No. 10. Judge Levy
reminded the parties that, pursuant to 28 U.S.C. § 636(b)(1), any objection to the R&R was due
within fourteen days of his R&R. To date, no party has filed any objection.
Pursuant to 28 U.S.C. § 636(b), the Court has reviewed the R&R for clear error and, finding
none, concurs with the R&R in its entirety. See Covey v. Simonton, 481 F. Supp. 2d 224, 226
(E.D.N.Y. 2007).
A district court has the inherent power to manage its own affairs “so as to achieve the
orderly and expeditious disposition of cases.” Lewis v. Rawson, 564 F.3d 569, 575 (2d Cir. 2009)
(quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962)). Consistent with that inherent
authority, applicable law explicitly empowers a district court, in the exercise of its sound discretion,
to dismiss an action “[i]f the plaintiff fails to prosecute or to comply with these rules or a court
order[.]” Fed. R. Civ. P. 41(b); see Lewis, 564 F.3d at 575 (noting that the standard of review is
abuse of discretion). Because dismissal on such grounds is unquestionably a “harsh remedy” that
should be used only in “extreme situations,” Lewis, 564 F.3d at 576 (citations omitted).

A court considering such action should examine five factors. Specifically, a court should
consider whether:
(1) the plaintiff’s failure to prosecute caused a delay of significant duration; (2)
plaintiff was given notice that further delay would result in dismissal; (3) defendant
was likely to be prejudiced by further delay; (4) the need to alleviate court calendar
congestion was carefully balanced against plaintiff’s right to an opportunity for a day
in court; and (5) the trial court adequately assessed the efficacy of lesser sanctions.
Id. (quoting United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004)). No
one factor is dispositive. Id.
Here, on balance, these factors fully support the Magistrate Judge’s recommendation to
dismiss this action for failure to prosecute. As noted in the R&R, Judge Levy scheduled an initial
conference for November 14, 2014, but at plaintiff’s request, adjourned the conference to January
22, 2015. Plaintiff failed to appear at that conference or to request another adjournment, and the
Court’s attempts to reach plaintiff by telephone were unsuccessful. Judge Levy then rescheduled
the conference for February 3, 2015 and warned plaintiff that his failure to appear could result in
sanctions, including a possible dismissal for failure to prosecute. Plaintiff failed to appear for the
rescheduled conference. The Court again attempted unsuccessfully to reach plaintiff by phone.
The docket reflects that copies of Judge Levy’s scheduling orders were mailed to plaintiff at
the address provided for him on the docket. In addition, a copy of the R&R was sent to plaintiff by
Federal Express. A search of the Federal Express tracking number indicates that the package was
successfully delivered on January 30, 2015. See https://www.fedex.com/apps/fedextrack/?
action=track&trackingnumber=772761111190&cntry_code=ca_english (last visited June 30, 2015).
Plaintiff has failed to appear or otherwise contact this Court since his November 2014
request to adjourn the initial conference. Plaintiff has not advised the Clerk of Court of any change
of address as he is required to do. He has shown no interest in pursuing this action, and has been on
notice that failure to appear could result in dismissal of this action. Magistrate Judge Levy made
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considerable efforts to contact plaintiff by telephone, and ensured that each and every court order
was sent to plaintiff at the address listed for him on the docket. And as indicated by the Federal
Express tracking, the R&R was delivered to that address.
This action has been pending on the Court’s docket for well over a year and has not
progressed in any way, solely due to plaintiff’s conduct. Such unreasonable delay is presumptively
prejudicial to defendant. See, e.g., Shannon v. Gen. Elec. Co., 186 F.3d 186, 195 (2d Cir. 1999)
(citing Lyell Theatre Corp., 682 F.2d at 43). The Court has considered lesser sanctions. However,
“given the duration of plaintiff's dilatory conduct, and its persistence in the face of efforts by the
court and opposing counsel to move the case forward, there is no basis to conclude that sanctions
short of dismissal would remedy the situation.” Yan v. Kohler, 91-CV-1689 (LAP), 1994 U.S. Dist.
LEXIS 1626 at *11 (S.D.N.Y. 1994).
CONCLUSION
Accordingly, it is hereby ORDERED that the magistrate judge’s R&R is adopted in its
entirety, and the case be dismissed for lack of prosecution. The Clerk of the Court is directed to
send a copy of this Memorandum and Order by overnight mail to plaintiff pro se at the address
listed for him on the docket and note the mailing and the accompanying tracking number. The
Clerk is further directed to close this case.

SO ORDERED.
Roslynn R. Mauskopf
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ROSLYNN R. MAUSKOPF
United States District Judge

Dated: Brooklyn, New York
June 30, 2015

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