Mitchell v. One West Bank, FSB et al

Filing 26

MEMORANDUM AND ORDER DISMISSING CASE. For the reasons stated in the attached Memorandum and Order, this action is dismissed pursuant to Fed. R. Civ. P. 16(f), 37(b), and 41(b). The Clerk of Court is respectfully directed to enter judgment for defendants, close this case, and serve a copy of this Memorandum and Order on plaintiff. The Clerk of Court shall also note service to the pro se plaintiff on the docket. Ordered by Judge Kiyo A. Matsumoto on 2/27/2017. (Fletcher, Camille)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------x
LAMEL MITCHELL,

NOT FOR PUBLICATION

Plaintiff,
MEMORANDUM AND ORDER
-against16-CV-707 (KAM)(LB)
ONE WEST BANK, FSB, ARTHUR N.
TERRANOVA, CIT BANK N.A., DOES 1-100,
MCCABE, WEISBERG AND CONWAY, P.C.,
HOGAN LOVELLS US LLP.

Defendants.
--------------------------------------x
MATSUMOTO, United States District Judge:
Pro

se

plaintiff

Lamel

Mitchell

pursuant to 15 U.S.C. § 1692 (“§ 1692”).

brings

this

action

For the reasons stated

herein, this action is dismissed for failure to prosecute and for
failure to comply with the court’s orders pursuant to Federal Rules
of Civil Procedure 16(f), 37(b), and 41(b).
BACKGROUND
Pro se plaintiff Lamel Mitchell initiated this civil
action pursuant to the Fair Debt Collection Practices Act, 15
U.S.C. § 1692, on February 10, 2016.

(ECF No. 1.)

filed the Amended Complaint on April 19, 2016.

Plaintiff

(ECF No. 3.)

On

May 13, 2016 a telephonic pre-motion conference was held on motion
from defendant CIT Bank N.A. (“CIT Bank”).

(See Minute Entry

dated May 13, 2016.)

A paralegal who identified himself as Fitz

El appeared at the May 13, 2016, pre-motion conference and advised
the court that plaintiff had retained attorney Emanuel F. Saris,
Esq. on May 12, 2016.

(Id.)

The court ordered Mr. Saris to enter

a Notice of Appearance if he intended to represent plaintiff in
the instant action by close of business May 13, 2016.
briefing

schedule

dismiss.

(Id.)

was

set

for

CIT

Bank’s

proposed

(Id.)

A

motion

to

A copy of the May 13, 2016 Minute Entry was

served on plaintiff on May 13, 2016.

(Id.)

On May 31, 2016, counsel for CIT Bank submitted a letter
requesting

permission

to

serve

its

Motion

to

Dismiss

papers

directly on plaintiff as a pro se party because Emanuel F. Saris
had failed to appear.

(ECF No. 10.)

The court granted CIT Bank’s

request and ordered that plaintiff be treated as pro se litigant.
(Order dated June 1, 2016.)

CIT Bank served its Motion to Dismiss

on plaintiff on June 2, 2016. (ECF No. 14.)

On June 30, 2016,

pursuant to the court’s chambers’ practices and the briefing
schedule set at the May 13, 2016 conference, CIT Bank filed its
Motion

to

Dismiss.

(See

ECF

Nos.

11-16.)

In

a

letter

accompanying its motion papers, CIT Bank informed the court that
its Motion to Dismiss was unopposed by plaintiff.

(ECF No. 16.)

On July 11, 2016, defendant McCabe, Weisberg and Conway,
2

P.C. (“McCabe”) requested a pre-motion conference. (ECF No. 18.)
The court granted McCabe’s request and the conference was scheduled
for August 2, 2016.
2016,

defendant

(Order dated July 12, 2016.)

McCabe

scheduling

the

plaintiff.

served

pre-motion

a

copy

conference

of
for

the

On, July 12,
court’s

August

2,

order

2016

on

(ECF No. 19.)
At the August 2, 2016 conference, Robert W. Seiffert,

Esq. appeared on plaintiff’s behalf. (Minute Entry dated August 2,
2016.)

The court ordered Mr. Seiffert to file a Notice of

Appearance no later than August 3, 2016, and serve a copy of that
order on plaintiff and file an affidavit of service by August 5,
2016.

(Id.)

The court also set a briefing schedule for McCabe’s

proposed motion to dismiss. 1 (Id.)

Mr. Seiffert failed to comply

with the court’s August 2, 2016 order by not entering a Notice of
Appearance.
On
advising

the

August

9,

parties

2016,

that

the

the

court

court

issued

will

another

continue

to

order
treat

plaintiff as a pro se party because although two attorneys had
indicated that they would represent plaintiff in the instant
action, neither attorney had filed a Notice of Appearance.

(Order

1 On August 23, 2016, defendant McCabe sought an extension of time to file its
Motion to Dismiss.
(ECF No. 25.)
The court granted defendant’s request.
(Order dated August 23, 2016.)

3

dated August 9, 2016.)

The court also advised plaintiff that he

was expected to adhere to the briefing schedule set during the
August 2, 2016 conference.

(Id.)

The court further noted that

plaintiff had been served with all previous orders, and ordered
that plaintiff be served with a copy of the docket, including its
August 9, 2016 order; plaintiff was served with the August 9, 2016
Order by the Clerk of Court on August 10, 2016.

(Id.; Docket

Entry dated August 10, 2016.)
On

August

15,

2016,

defendant

Arthur

N.

Terranova

(“Terranova”) moved for a pre-motion conference; Terranova served
plaintiff with his motion on August 16, 2016.

(ECF Nos. 22-23.)

On August 22, 2016, the court scheduled the pre-motion conference
for September 1, 2016.

(Order dated August 22, 2016.)

Defendant

Terranova filed an Affidavit of Service noting that he had served
plaintiff with a copy of the court’s August 22, 2016 order.
No. 24.)

(ECF

At the September 1, 2016 conference, counsel for Mr.

Terranova, David Louis Cohen, Esq., advised the Court that he had
called Mr. Seiffert’s office, a paralegal named Fritz, and two
numbers that were associated with plaintiff, but was unable to
reach

either

plaintiff

September 1, 2016.)

or

Mr.

Seiffert.

(Minute

Entry

dated

Mr. Cohen also advised that Mr. Seiffert had

faxed him a Notice of Appearance dated August 2, 2016 that was not
4

filed, and a Stipulation of Discontinuance, signed by Mr. Seiffert
but

not

by

plaintiff.

(Id.)

During

the

September

1,

2016

conference, the court called Mr. Seiffert’s cell and office phone
numbers, the paralegal named Fritz, and plaintiff’s cell phone
number as listed on the docket. (Id.) The court spoke to the
paralegal, Mr. Fritz but he did not provide the court with any
useful

information

regarding

Mr.

Seiffert’s

plaintiff’s prosecution of the action.

representation

or

(Id.)

Neither Mr. Seiffert nor plaintiff answered the court’s
calls.

(Id.)

The court left Mr. Seiffert a voicemail and ordered

the following on the docket: By September 6, 2016, Mr. Seiffert
was ordered to either file a Notice of Appearance and a Status
Letter, advising the court and the parties whether plaintiff
intended to prosecute the action, or advise the court that he did
not represent plaintiff.

(Id.)

Mr. Seiffert was also ordered to

show good cause for why he should not be sanctioned for failing to
follow the court’s order to file his Notice of Appearance by August
3, 2013.

(Id.)

Plaintiff was also advised that failure to

prosecute his action and future failures to appear either with
counsel or pro se would cause this case to be dismissed.

(Id.)

The September 1, 2016, Minute Entry was mailed to Mr. Seiffert and
to plaintiff on September 1, 2016.
5

To date, neither Mr. Seiffert

nor plaintiff has contacted the Court.
DISCUSSION
A
diligently.

plaintiff

has

the

duty

to

prosecute

his

case

Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43

(2d Cir. 1982); Djangmah v. Hiram, No. 14–CV–732 (PKC)(JLC), 2015
WL 5675061, at *2 (S.D.N.Y. Sept. 25, 2015). “[A]ll litigants,
including pro ses, have an obligation to comply with court orders,”
and to diligently advance their case; failure to do either may
result in dismissal of the action.

Agiwal v. Mid Island Mortg.

Corp., 555 F.3d 298, 302 (2d Cir. 2009); Djangmah, 2015 WL 5675061,
at *2.
Rule 16(f)(1)(A) of the Federal Rules of Civil Procedure
provides: “[o]n motion or on its own, the court may issue any just
orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii),
if a party or its attorney . . .
or other pretrial conference.”

fails to appear at a scheduling
One such sanction is dismissal of

the complaint, Fed. R. Civ. P. 37(b)(2)(A), which “may be imposed
even against a plaintiff who is proceeding pro se, so long asa
warning has been given that noncompliance can result in dismissal.”
Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994).
Similarly, under Fed. R. Civ. P. 41(b), the Court may sua sponte
dismiss an action “[i]f the plaintiff fails to prosecute or to
6

comply with [the Federal Rules of Civil Procedure] or a court
order.”

Fed. R. Civ. P. 41(b); see also Lewis v. Rawson, 564 F.3d

569, 575 (2d Cir. 2009) (citing Link v. Wabash R.R. Co., 370 U.S.
626, 630-31 (1962)).
Dismissal under Rules 16 and 37 requires a finding of
“willfulness, bad faith, or any fault” on the part of the party
failing to comply with the court’s order.

See Bobal v. Rensselaer

Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990) (citation
omitted). “For practical purposes, courts have found that the
factors to be addressed in a Rule 41(b) analysis are relevant to
an analysis under 37(b), and there is little distinction between
the two.”

Sanders v. Does, No. 05 Civ. 7005 (RJS), 2008 WL

2117261, at *2 (S.D.N.Y. May 15, 2008).

The Rule 41(b) factors

are: (1) whether the plaintiff’s failure to prosecute caused a
delay of significant duration; (2) whether plaintiff was given
notice that further delay would result in dismissal; (3) whether
defendant is likely to be prejudiced by further delay; (4) the
balance between alleviating the court’s calendar congestion and
protecting a party’s right to due process and an opportunity to be
heard; and (5) the efficacy of lesser sanctions.

Lewis, 564 F.3d

at 576; see also LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d
206, 209 (2d Cir. 2001); Shannon v. Gen. Elec. Co., 186 F.3d 186,
7

193-94 (2d Cir. 1999).
“The first factor to be examined breaks down into two
parts: (1) whether the failures to prosecute were those of the
plaintiff, and (2) whether these failures were of significant
duration.”

U.S. ex rel. Drake v. Norden Sys., 375 F.3d 248, 255

(2d Cir. 2004) (citing Martens v. Thomann, 273 F.3d 159, 180 (2d
Cir. 2001)), vacated on other grounds, 320 Fed. Appx. 1 (2d Cir.
2009).
were

Here, two different attorneys have indicated that they

engaged

However,

in

by

plaintiff

violation

of

to

represent

court

orders,

him

in

neither

appeared or taken any steps to litigate this case.

this

action.

attorney

has

Plaintiff, who

received copies of this court’s orders, did not appear at the
conferences pro se as directed, nor did he otherwise comply with
the briefing schedules set by the court.

(See Minute Entries

dated

and

September

1,

2016,

August

2,

2016

May

13,

2016.)

Plaintiff has caused significant delays in his case and has taken
no action in his case for more than six months.
August 2, 2016.)

(See Docket since

Therefore, the first factor weighs in favor of

dismissal.
The second factor, whether plaintiff was given notice
that further delay would result in dismissal also weighs in favor
of dismissal.

Lewis, 564 F.3d at 576; LeSane, 239 F.3d at 209.
8

Plaintiff was warned by the court on September 1, 2016 that his
action could be dismissed if he continued to not appear at court
conferences, and if he failed to prosecute the case.
Entry dated September 1, 2016.)

(Minute

Plaintiff was therefore on notice

that further inaction would lead to the dismissal of the suit.
Therefore, the second factor militates in favor of dismissing this
case.
2013)

See Caussade v. U.S., 293 F.R.D. 625, 629-30 (S.D.N.Y.
(“Delays

of

several

months

have

been

found

to

warrant

dismissal [under Rule 41(b)].”); Europacific Asset Mgmt. Corp. v.
Tradescape, Corp., 233 F.R.D. 344, 353 (S.D.N.Y. 2005) (“A court’s
prior warning of dismissal, and subsequent inaction by a plaintiff,
weighs in favor of dismissal.”).
The third factor considers whether plaintiff’s failure
to prosecute prejudiced the defendant.

Lewis, 564 F.3d at 576.

“Prejudice to defendants resulting from unreasonable delay may be
presumed, but in cases where delay is more moderate or excusable,
the need to show actual prejudice is proportionally greater.”
Lyell Theatre Corp., 682 F.2d at 43 (internal citations omitted).
The defendants have been prejudiced by plaintiff’s failure to
prosecute because they have expended resources to litigate an
action that plaintiff apparently has abandoned.
third factor militates in favor of dismissal.
9

Accordingly, the
See Brandon O. v.

Woodlick,

No.

13–CV–4116

(NGG)(RML),

2014

WL

5878117,

at

*4

(E.D.N.Y. Nov. 12, 2014) (prejudice to defendants assumed where
the action was delayed, possibly indefinitely, because plaintiff
could

not

be

contacted,

and

plaintiff

had

not

provided

any

explanation for the delay or attempted to rebut the presumption of
prejudice, and where defendants had not contributed to the delay).
The

fourth

factor,

the

balance

between

the

court’s

calendar obligations, and plaintiff’s due process rights and his
right to be heard, militates in favor of dismissing this action.
Lewis, 564 F.3d at 576.

Plaintiff has had the opportunity to be

heard and has not taken advantage of it.

Plaintiff has taken no

steps to litigate this action in over six months.

Further, the

court has expended time and resources holding conferences in this
action, which plaintiff has apparently abandoned.

The court has

hundreds of cases to adjudicate and spending time on an action
that the plaintiff no longer wishes to prosecute is an unnecessary
burden on the court and is unfair to other litigants.

See

Caussade, 293 F.R.D. at 631 (finding that “it would be unfair to
the numerous other litigants who await the attention of this Court
to permit [plaintiff’s] suit to remain on the docket” and “the
balance [tipped] . . . in favor of the Court’s need to reduce
docket congestion” when plaintiff “[had] not been in contact with
10

her counsel for about five months and [had] failed to respond to
requests to schedule a deposition or to correct her interrogatory
responses”); Katz v. Mogus, No. 07 Civ. 8314(PKC)(KNF), 2009 WL
3189342, at *5 (S.D.N.Y. Oct. 6, 2009) (Even though “plaintiff’s
failure to comply with three scheduling orders did not impact
greatly on the Court’s ability to manage its docket . . . dismissal
would not deny the plaintiff his due process rights, as he [never
responded to the court order] to show cause why his case should
not be dismissed . . . which served as sufficient notice and as an
opportunity to be heard.”).

Accordingly, factor four militates

in favor of dismissal.
As for the fifth factor, warnings are likely to be futile
and undermine the court’s power and process because even though
plaintiff was warned that failure to comply with the court’s order
could lead to dismissal, plaintiff has continued his failure to
comply with the court’s order; nor has he taken steps to litigate
this action.
this

action

Accordingly, no lesser sanction than dismissal of
would

likely

be

effective

and

dismissal

at

this

juncture is appropriate. See McAllister v. Garrett, No. 10-CV03828 (LAP) (HBP), 2015 WL 1623826, at *4 (S.D.N.Y. Mar. 11, 2015)
(dismissal

is

appropriate

because

of

plaintiff’s

“historical

pattern of not responding to court orders”); Sanders, 2008 WL
11

2117261, at *5 (finding that dismissal was appropriate because the
court could not contact plaintiff through the contact information
on the docket, and prior warnings of dismissal had proven futile).
CONCLUSION
For the foregoing reasons, this action is dismissed
pursuant to Fed. R. Civ. P. 16(f), 37(b), and 41(b).

The Clerk

of Court is respectfully directed to enter judgment for defendants,
close this case, and serve a copy of this Memorandum and Order on
plaintiff.
SO ORDERED.
Dated:

February 27, 2017
Brooklyn, New York

___________/s/_______________
Hon. Kiyo A. Matsumoto
United States District Judge

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