Graham v. Quirk et al

Filing 401

MEMORANDUM & ORDER: The defendants motion to dismiss for failure to prosecute pursuant to Rule 41(b) is granted and Grahams complaint is dismissed in its entirety with prejudice. The Clerk of Court is respectively directed to close this case and mail a copy of this order to Ms. Graham. Order attached. Ordered by Judge Eric R. Komitee on 4/16/2024. (PMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JESSICA C. GRAHAM,
Plaintiff,

MEMORANDUM & ORDER
14-CV-5815 (EK)(LB)

-againstVALERIE MATTEO, FRANK CALLAGHAN,
DANIELLE SINGER, STANSILAV ZUBYK, and
JASON PORTEE,
Defendants.
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ERIC KOMITEE, United States District Judge:
Plaintiff Jessica Graham commenced this action on
October 2, 2014. 1

Proceeding pro se, she alleged that the

defendants violated her constitutional rights during a series of
incidents that occurred between October 2013 and August 2015 in
Richmond County.
Ten years into the case, Graham has failed to maintain
an up-to-date address, has missed or arrived late to multiple
status conferences, has regularly failed to meet court-ordered
deadlines for motion practice, and has failed to submit adequate
pretrial filings despite repeated court orders to do so.

1 Graham is plaintiff’s maiden name.
She has also filed cases in this
district under the name Jessica Szabo — her ex-husband’s surname. See, e.g.,
Szabo v. City of New York et al, Case No. 16-cv-3683. The court will refer
to the plaintiff as Jessica Graham, as that is how she has referred to
herself in recent filings and she is proceeding under the name in this case.

Throughout, the court has indulged Graham, often sua sponte
granting her extensions of time to meet deadlines and denying
several of the defendants’ unopposed motions to dismiss for
failure to prosecute.
At the final pretrial conference on April 15, 2024, at
which Graham failed to appear, the defendants moved — for a
fourth time — to dismiss the case for failure to prosecute
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
I granted that motion orally and dismissed the case.

This order

summarizes — without intending to cover a decade of procedural
history comprehensively — the reasons for that dismissal.
Background
In late 2016, the defendants moved to dismiss the
operative complaint under Rules 12(b) and (c).
192, 199.

ECF Nos. 185,

Graham failed to serve or file any opposition to that

motion by the court-ordered due date, December 23, 2016.
No. 177.

ECF

When the defendants asked the court to address their

motions as unopposed, ECF Nos. 196, 201, 203, Judge Chen,
recognizing Graham’s pro se status, sua sponte granted her until
February 24, 2017 to file opposition.

January 19, 2017 Order. 2

Graham filed a two-page letter nominally opposing the motions,
but did not address any of the defendants’ arguments.

2

ECF No.

This case was transferred to the undersigned on February 3, 2020.
2

204.

Nonetheless, the court declined to dismiss several of her

claims.

ECF Nos. 216 (R&R), 219 (order adopting the R&R).
In March 2020, the defendants informed the court that

they had reached a settlement in principle with Graham regarding
both the instant case and a companion case, Szabo v. City of New
York et al., No. 16-CV-368. 3

ECF No. 291.

When Graham reported

to Judge Bloom three months later that she no longer wished to
settle, see July 17, 2020 Order, the defendants moved to enforce
the settlement agreement.

ECF No. 327.

Graham was granted two

extensions of time to oppose that motion but failed to do so.
See December 9, 2020 Order; January 28, 2021 Order.
lack of opposition, the court denied the motion.

Despite the

ECF No. 348.

On February 19, 2021, defendants served Graham with a
motion for summary judgment.

ECF No. 331.

Graham failed to

oppose that motion by the court’s March 19, 2021 deadline.
Again, in light of her pro se status, the court sua sponte
granted Graham additional time to respond, and warned her that
if she failed to do so, the court would deem the motion fully
briefed and unopposed.

April 5, 2021.

Graham failed to meet

that extended deadline and did not seek any further extension.

3 Graham “is a serial litigant with a filing injunction against her in
this Court.” Szabo v. Parascandolo, No. 16-CV-3683, 2019 WL 481925, *2 n.3
(E.D.N.Y. Feb. 6, 2019); Case No. 16-CV-3683, ECF No. 5 (noting that, as of
July 2016, “[t]his is the tenth action that Plaintiff Jessica C. Szabo (a/k/a
Jessica C. Graham) has filed since October 2, 2014”).

3

May 10, 2021 Order. 4

The court declined to grant summary

judgment on certain of her claims, and five defendants were left
in the case: Callaghan, Matteo, Portee, Singer, and Zubyk.

See

ECF No. 390.
On August 9, 2023, the court held a status conference
and set a date for trial: May 6, 2024.

ECF No. 391.

At that

conference, the court specifically warned Graham of the
importance of completing the joint pre-trial order (“JPTO”) and
directed the defendants to provide her with a template JPTO as
well as a copy of the court’s Individual Rules.

Those rules

require each party to provide the information necessary for the
opposing party to prepare for trial and to make targeted motions
in limine prior to trial.

For example, parties are required to

list the names of “fact and expert witnesses whose testimony is
to be offered,” and to designate “all exhibits to be offered in
evidence.”

Individual Rules and Practices, Rule V.B.1.

These

requirements are important: they allow the parties to “resolve
before trial all issues of authenticity, chain of custody, and
related grounds.”

Id.

They also facilitate the filing of

motions in limine, which are critical to ensuring the efficient
use of the jury’s time at trial.

Graham filed a handwritten letter over a year later, on June 6, 2022,
requesting without further argument that “the State Defendants’ Motion for
summary judgment next be denied” and “proceed to trial.” ECF No. 370.
4

4

On October 5, 2023, the five remaining defendants
filed their first motion to dismiss for failure to prosecute,
citing Graham’s failure to complete her portion of the JPTO.
ECF No. 392.
exhibit.

The motion attached Graham’s JPTO portion as an

ECF No. 392-1.

Under a section titled “Damages,”

Graham wrote: “Unable to state damages.
Amended Complaint.”

Id.

Plaintiff does not have

Under a section titled “Plaintiff’s

Witnesses,” she wrote: “This box is too small to add all of the
Plaintiff’s witnesses.”

Id.

She wrote that she “is not sure if

she is going to give testimony.”

Id.

In a section titled

“Plaintiff’s Exhibits,” Graham wrote “over 8,000” and “not
enough room to answer in these boxes.”

Id.

She did not attach

an addendum listing her exhibits.
On October 24, the court ordered Graham to “draft and
file her portion of the Joint Pretrial Order by November 23,
2023 in accordance with the court’s instructions at the August
9, 2023 status conference.”
failed to do so.

October 24, 2023 Order.

Graham

On December 1, 2023, the defendants filed a

second motion to dismiss for lack of prosecution.

ECF No. 393.

The defendants noted that they “sent plaintiff a new template of
a JPTO via USPS certified mail, which was received by Clinton
Correction Facility on October 27, 2023” and attached a USPS
confirmation receipt.

ECF Nos. 393, 393-2.

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Graham failed to respond to either motion.

Still,

given Graham’s pro se status, and despite her lack of
opposition, the court denied the defendants’ first and second
motions to dismiss for failure to prosecute.
Order.

December 28, 2023

The court once again ordered Graham to complete her

portion of the JPTO by listing “her expected witnesses and
exhibits, even if she must append additional pages in order to
do so.”

Id.

The court also scheduled a pretrial conference for

February 1, 2024, in addition to the previously scheduled
January 17, 2024 status conference.

Id.

The court notified

Graham that “if she does not participate in the preparation of
the joint pretrial order and appear at the pretrial conference,
the court will consider dismissing the case for failure to
prosecute.”

Id.

Graham failed to appear at the January 17, 2024 status
conference or to update her JPTO.

On January 22, 2024, the

defendants filed a letter indicating “that Plaintiff was
released from the State of New Jersey’s Edna Mahan Correctional
Facility during November 2023.”

ECF No. 394.

Graham failed to

update her address or otherwise communicate with the court or
the defendants upon her release, “an obligation that rests with
all pro se plaintiffs.”

Greene v. Sposato, No. 16-CV-1243, 2019

WL 1559421, at *1 (E.D.N.Y. 2019); see ECF No. 381.

As a

result, neither the court nor the defendants had any dependable
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method for reaching her.

Nonetheless, and as directed by the

court, the defendants emailed their letter to two email
addresses on file for Graham.

ECF No. 394.

The letter also

noted that Graham “has not responded to any emails sent to these
email addresses since January 12, 2021” and had not been in
contact with the defendants since September 2023.

ECF No. 394.

On February 1, 2024, the court held an initial
pretrial conference at which Graham finally appeared — half an
hour late.

See Conf. Tr., ECF No. 396, at 2.

At that

conference, the court expressly warned Graham that if she failed
to submit a JPTO compliant with the court’s Individual Rules,
the court would consider prohibiting her from calling any
witness not listed on the JPTO or dismissing the case for
failure to prosecute.

Conf. Tr. at 9:24-11:5.

At the same conference, with Graham present, the court
also set a series of pre-trial deadlines.

The court scheduled a

final pretrial conference for April 15, at 4:00 p.m.; prior to
that, the parties were directed to (i) submit proposed voir dire
questions and proposed jury instructions by April 5, 2024; (ii)
finalize the JPTO by the week of April 1 and schedule a status
conference with Judge Bloom to review it; and (iii) file any
motions in limine by March 1, 2024, with responses due by March
15.

February 1, 2024 Minute Entry.

7

Prior to any of those deadlines, on February 28, the
defendants filed a third motion to dismiss for lack of
prosecution.

ECF No. 397.

The defendants wrote that they “have

yet to receive any response” from Graham, who “refuses to speak
with” defendants’ counsel.

As with the prior motions,

Id.

Graham failed to respond.
The defendants also requested an extension of time to
comply with the court’s order to meet with Judge Bloom to review
the parties’ JPTO, citing Graham’s failure to comply with the
court’s order to complete the JPTO, and her refusal to
communicate with the defendants.

ECF No. 398.

Despite Graham’s

lack of participation, the defendants filed their proposed voir
dire and jury instructions on time.

ECF Nos. 399, 400.

No

corresponding filings were made by Graham, who has made no
communication or filing since the February 1 conference.
Finally, the court held its final pretrial conference
on April 15.

Graham again failed to appear.

At the conference,

the defendants’ moved — for a fourth time — to dismiss the case
for lack of prosecution, noting that Graham refused to speak
with defense counsel other than to inform him that she had not
completed a JPTO.

The court granted that motion, with this

order to follow.

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Legal Standard
Under Rule 41(b) of the Federal Rules of Civil
Procedure, an action may be dismissed if “the plaintiff fails to
prosecute or to comply with these rules or a court order.”
R. Civ. P. 41(b).

Such dismissals are “largely a matter of the

[district] judge’s discretion.”
(2d Cir. 1966). 5

Fed.

Taub v. Hale, 355 F.2d 201, 202

The Supreme Court has recognized that such

dismissals are necessary “to prevent undue delays in the
disposition of pending cases and to avoid congestion in the
calendars of the District Courts.”

Link v. Wabash R.R. Co., 370

U.S. 626, 629-30 (1962).
In the Second Circuit, district courts must consider
five factors before dismissing a case under Rule 41(b): 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 efficacy of lesser sanctions.”

U.S. ex rel. Drake

v. Norden Syst’s., Inc., 375 F.3d 248, 254 (2d Cir. 2004).

No

one factor is dispositive, and a court must review the record as
Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
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a whole.

Such dismissals often arise in cases where the

Id.

plaintiff has exhibited a “failure to comply with a scheduling
order or timely to respond to pending motions.”

Lewis v.

Rawson, 564 F.2d 569, 576 (2d Cir. 2009) (collecting cases).
The Second Circuit has cautioned that “district courts
should be especially hesitant to dismiss for procedural
deficiencies where, as here, the failure is by a pro se
litigant.”

Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).

“However, even pro se litigants must prosecute claims
diligently, and dismissal . . . is warranted where the Court
gives warning.”

Jacobs v. Cty. of Westchester, No. 99-CV-4976,

2008 WL 199469, at *3 (S.D.N.Y. Jan. 22, 2008).
Discussion
Here, all five factors weigh in favor of dismissing
for failure to prosecute.

First, over the course of this

decade-long litigation, Graham has frequently missed deadlines
and failed to respond to court orders, consistently slowing the
litigation process by requiring numerous extensions of time or
by failing to keep her address up-to-date.

In 2016, for

example, defendants’ motions to dismiss remained pending for
three additional months to allow Graham an extension of time to
file her opposition — ultimately a two-page letter.
at 2; ECF No. 204.

See supra

In 2020, Judge Bloom granted Graham two

extensions of time, spanning multiple months, to file opposition
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to the defendants’ motion to enforce a settlement agreement —
opposition that Graham never ultimately filed.
December 9, 2020 Order; January 28, 2021 Order.

See supra at 3;
And in 2021,

the court granted Graham a sixty-day extension of time to
respond to the defendants’ motion for summary judgement; despite
the court’s hopeful indulgences, she ultimately failed to file
any opposition.

See supra at 3; April 5, 2021.

“In this

Circuit, a delay of merely a matter of months may be sufficient
to warrant dismissal under Rule 41.”

Balderramo v. Go New York

Tour Inc., No. 15-CV-2326, 2019 WL 5682848, at *3 (S.D.N.Y. Nov.
1, 2019).

Here, Graham has caused delays of several months for

each motion filed over the course of ten years, resulting in
litigation at a resource-draining pace.
Within the last six months alone, Graham has
steadfastly refused to comply with the effort to ready this case
for trial.

She failed to complete an adequate JPTO, despite

being given numerous opportunities to do so over the course of
six months.

See, e.g., October 24, 2023 Order; December 28,

2023 Order; February 1, 2024 Minute Entry.

Another district

court dismissed under similar circumstances, where the plaintiff
failed to contribute to “his portion of the joint pretrial
submissions,” resulting in a “failure to comply with two orders
over seven months.”

Murray v. City of Yonkers, No. 19-CV-1192,

2022 WL 464131, at *3 (S.D.N.Y. Feb. 15, 2022).
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Here, in the

crucial period leading up to trial, Graham has failed to comply
with at least five court orders — including by failing to appear
at the final pretrial conference before the court on April 15.
That is sufficient to support dismissal.
Second, Graham has been warned repeatedly that failure
to prosecute the case diligently could result in dismissal.

On

September 21, 2022, after learning that she had been released
from custody over a month earlier, the court warned Graham that
failure to notify the court of her changes of address could
result in a dismissal for failure to prosecute.
2022 Order.

September 21,

Nonetheless, as Graham acknowledged at the February

1 conference, just one year later she failed to update her
address after she was (again) released from custody in November
of 2023.

Conf. Tr. at 11:17-23, 13:7-15.
The court also warned Graham, on at least two

occasions, that failure to complete the JPTO could result in
dismissal of this action.

First, the court issued a warning on

December 28, 2023 that if Graham “does not participate in the
preparation of the joint pretrial order and appear at the
pretrial conference, the Court will consider dismissing the case
for failure to prosecute.”

December 28, 2023 Order.

And

second, the court explicitly warned Graham — face-to-face at the
February 1 conference — that if she failed to complete an
adequate JPTO, the case may be dismissed for failure to
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prosecute.

Conf. Tr. at 9:24-11:5.

Such warnings were

sufficient to put Graham on notice of the possibility of
dismissal.

See Pena v. Zazzle Inc., 587 F. Supp. 3d 109, 114

(S.D.N.Y. 2022) (holding that three warnings was sufficient, and
citing cases holding that one or two warnings were also
sufficient).
Third, the defendants have been prejudiced by Graham’s
failures.

This case has now dragged on for a decade, consuming

untold hours of the court’s — and defense counsels’ — time.

The

Second Circuit has stated that in circumstances like this,
“[p]rejudice to defendants resulting from unreasonable delay may
be presumed.”

Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37,

43 (2d Cir. 1982).

A defendant “should not be forced to bear

the expense of defending a lawsuit when the plaintiff has shown
little or no interest in pursuing that lawsuit.”

Baptiste v.

Gonzalez, No. 17-CV-6837, 2020 WL 1165689, at *5 (S.D.N.Y. Mar.
11, 2020).
Fourth, the court’s interest in managing its docket
outweighs Graham’s sporadic interest in pursuing her right to be
heard.

Graham’s claims have languished for ten years, sitting

with Judge Chen for six years before spending four years before
the undersigned.

After substantial effort, the court finally

set a trial date — May 6, 2024 — nearly six months ago.

But

that date has been put at risk by Graham’s nonparticipation in
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the pretrial process.

The court has no confidence that Graham

will actually appear for the scheduled jury trial.
After that trial date, the court has four trials
scheduled — effectively back-to-back — between May 20 and midAugust.

Graham’s noncompliance with the court’s orders

“undermines the ability of the Court to manage its docket and
dispense justice to all litigants in an expeditious manner.”
Mahoney v. City of New York, No. 12-CV-6717, 2013 WL 5493009, at
*2 (S.D.N.Y. Oct. 1, 2013).
Finally, the court has considered the possibility of a
“less drastic sanction than dismissal.”
844 F. App’x 459, 460 (2d Cir. 2021).

Kaplan v. Hezbollah,
But Graham’s “continued

disregard for the district court’s orders” across the years
makes evident that “no less drastic sanctions, short of
dismissal, would be effective.”

Yadav v. Brookhaven Nat. Lab.,

487 F. App’x 671, 673 (2d Cir. 2012).
Conclusion
The defendants’ motion to dismiss for failure to
prosecute pursuant to Rule 41(b) is therefore granted and
Graham’s complaint is dismissed in its entirety with prejudice.

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The Clerk of Court is respectively directed to close this case
and mail a copy of this order to Ms. Graham.

SO ORDERED.

/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated:

April 16, 2024
Brooklyn, New York

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