Garcia v. City of New York et al

Filing 29

ENDORSED ORDER ADOPTING REPORT AND RECOMMENDATION. This report and recommendation is accepted by the court; plaintiff has not timely appealed. Ordered by Judge Jack B. Weinstein on 8/27/2019. (Barrett, C)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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LLOYD GARCIA,

Plaintiff,

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REPORT AND
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17-CV-6068-JBW-SJB
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-againstCI1Y OF NEW YORK,
NEW YORK CI1Y POLICE DEPARTMENT,

OFFICER LEWIS
POLICE OFFICER JOHN DOES 1-4,
Defendants.

-------------------------------------------------------X

FILED

IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

* SEP O5 2019 *
BROOKLYN OFFICE

BULSARA, United States Magistrate Judge:

Plaintiff Lloyd Garcia ("Garcia") brought this action against the City of New York,
the New York City Police Department, Officer Lewis, and Police Officer John Does 1
through 4 (collectively, "Defendants") on October 17, 2017 alleging violations of 42
U.S~C § 1983 ("§ 1983") and state law. (Compl. dated Oct. 17, 2017, Dkt. No. 1). Garcia
proceeded pro se after his attorney moved to withdraw and this Court granted the
motion on September 11, 2018. (See Mot. to Withdraw as Att'y dated Aug. 23, 2018,
Dkt. No. 17; Order granting Mot. to Withdraw as Att'y dated Sept. 11, 2018). Since that
time, Garcia has failed to comply with repeated Court orders. (See Order to Show Cause
dated Dec.13, 2018; Scheduling Order dated Dec. 13, 2018). Defendants filed a motion
to dismiss for lack of prosecution after Garcia took no action in the case for almost four
months. (Mot. to Dismiss ("Mot.") dated Jan. 7, 2019, Dkt. No. 22). The Honorable
Jack B. Weinstein referred the motion to the undersigned for a report and
recommendation. The Court recommends granting Defendants' motion and dismissing
Garcia's claims with prejudice for two reasons: (1) failure to abide by this Court's
Orders; and (2) failure to prosecute.

..

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FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Garcia, represented by counsel Michael A. Delakas, commenced this suit on
October 17, 2017, alleging violations of§ 1983 and state law by Defendants. Garcia
alleged that Defendants had subjected him to excessive force, false arrest and
imprisonment, assault and battezy, intentional infliction of emotion distress, and
malicious prosecution, among other violations of federal and state law. (Compl. at 1).
The Complaint stems from Garcia's arrest after the Defendants allegedly recovered a
controlled substance at Garcia's residence. (Id. ,r,r 16-17). While in custody, Garcia
claimed he was assaulted by Defendants. (Id. ,r,r 18-19). He also alleged that
Defendants prosecuted him without probable cause, resulting in his incarceration for 12
days. (Id. ,r 20).
The case proceeded through discovery, and on August 23, 2018, Garcia's counsel
moved to withdraw. (Mot. to Withdraw as Att'y dated Aug. 23, 2018, Dkt. No. 17). The
Court held a hearing on the motion to withdraw on September 11, 2018. (Min. Entzy
dated Sept. 11, 2018). At the hearing, the Court granted the motion and gave Garcia
until November 9 to obtain new counsel and have that counsel make an appearance in
the case.· (Order dated Sept. 11, 2018). The Court also ruled that "[i]f no appearance
from new counsel is filed, Plaintiff will be proceeding pro se." (Id.).
Since that time, Garcia has not contacted the Court. A status conference was
scheduled for December 12, 2018, at which Garcia failed to appear. He then failed to
respond to the Court's order to show cause, which directed him to write a letter
explaining why he did not attend the conference. (Order to Show Cause dated Dec. 13,
2018, Dkt. No. 20). The Court scheduled another status conference for February 5,
2019, at which Garcia was directed to appear. (Scheduling Order dated Dec. 13, 2018).

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Garcia was warned that "[i]f he fails to appear, the Court may be forced to impose a
sanction[,] which could include dismissal of his case." (Order to Show Cause, Dkt. No.
20,

at 1).
Before the Februacy conference, counsel for Defendants moved to dismiss the

case for lack of prosecution. (Mot. to Dismiss for Lack of Prosecution ("Mot."), dated
Jan. 7, 2019). The motion to dismiss was served on Garcia at his address in Jamaica,
New York, (Deel. of Service dated Jan. 17, 2019, Dkt. No. 23), which is the address he
provided the Court. In the motion, counsel for the Defendants stated that "[f]or nearly
four months, plaintiff Lloyd Garcia ... has indicated no desire to proceed forward ....
The Court has already granted plaintiff several opportunities to inform the Court of his
intentions[,] but plaintiff remains unresponsive." (Mot. at 2). Garcia did not respond to
the motion. And he did not appear at the February 5 conference.
After Garcia failed to appear at the February conference, the Court indicated in
an order that it would recommend dismissing the case. (Order dated Feb. s, 2019 ("The
Court will issue a Report & Recommendation in short order recommending dismissal of
this action for, among other things, failing to obey repeated court orders.")). A copy of
the docket sheet reflecting the Court's order was mailed to Garcia's address in Queens.
Garcia never responded to this order, and he never opposed the Defendants' motion to
dismiss.
As of the date of this report and recommendation, Garcia has not filed a letter

with the Court, nor has any attorney appeared on his behalf.

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DISCUSSION
I.

Dismissal with Prejudice under Rules 16{0 and 3z{b)
"A court has the inherent power to supervise and control its own proceedings and

to sanction counsel or a litigant ... for disobeying the court's orders[.]" Mickle v.

Morin, 29f,F.3d 1i4, 125 (2d Cir. 2002). "The imposition of sanctions pursuant to Rule
37 (and ... Rule 16(f)) is a matter committed to the sound discretion of the District
Court." Neufeld v. Neufeld, 172 F-.R.D. 115, 118 (S.D.N.Y. 1997). The purpose of such
sanctions, including dismissal, is "not merely to penalize those whose conduct may be
deemed to warrant such a sanction, but to deter those who might be tempted to such
conduct in the absence of such a deterrent." Valentine v. Museum ofModern Art, 29
F.3d 47, 49-50 (2d Cir. 1994) (quoting Nat'l Hockey League v. Metro. Hockey Club,

Inc., 427 U.S. 639, 643 (1976)). The Court recommends that Garcia's claims be
dismissed with prejudice because he has repeatedly failed to appear at pretrial
conferences and failed to comply with multiple Court orders.
Rule 16(0 of the Federal Rules of Civil Procedure provides that a "court may issue
any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party ...
fails to appear at a scheduling or other pretrial conference" or "fails to obey a scheduling
or other pretrial order." Fed. R. Civ. P. 16(f)(1)(A) & (C). Rule 37(b) provides that a
court may issue sanctions if a party "fails to obey an order to provide or permit
discovecy," Fed. R. Civ. P. 37(b)(2)(A), while Rule 16(f) provides that a court may issue
sanctions if a party "fails to appear at a scheduling or other pretrial conference" or "fails
to obey a scheduling or other pretrial order," Fed.-R. Civ. P. 16(f)(1)(Aj & (C). Here,
Garcia failed to appear at two pretrial conferences and failed to obey three Court orders.
First, he failed to appear at the status conference scheduled for December 12, 2018,

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despite being notified, thereby missing a conference and disobeying the Court's order to
appear. (See Scheduling Order dated Sept.

11,

2018); Garcia then failed to show cause

why he did not appear for that conference, despite being mailed a copy of the Order to
Show Cause. (See Order to Show Cause dated Dec. 13, 2018). Lastly, he failed to appear
at the status conference scheduled for February 5, 2019, (Scheduling Order dated Dec.
13, 2018), thereby missing a second conference and disobeying another Court order to
appear in person, (Order dated Feb. 5, 2019). These repeated failures warrant sanctions
under both Rule 16(0(1)(A) (failure to appear at a scheduling or other pretrial
conference) and 16(0(1)(C) (failure to obey a scheduling or other pretrial order). See,

e.g., Johnson v. New York City, No. 14-CV-4278, 2015 WJJ12999661, at *1 (E.D.N.Y.
Jan. 12, 2015) (recommending dismissal under Rules 16(0 and 37(b)(2)(A)(v) for
lateness and failure to appear at two Court-ordered conferences), report and

recommendation adopted, 2015 WL 12990999 (Feb. 2, 2015), affd, 646 F. App'x 106
(2d Cir. 2016).
As stated above, Rule 16(0 adopts the sanctions authorized by Rule

37(b)(2)(A)(ii)-(vii), including "dismiss[al of] the action or proceeding in whole or in
part." Fed. R. Civ. P.-37(b)(2)(A)(v); see Fed. R. Cfv. P. 16 advisory committee's note to
1983 amendment ("Rule 16(0 incorporates portions of Rule 37(b)(2), which prescribes
sanctions for failing to make discovery."); Fonar Corp. v. Magnetic Plus, Inc., 175 F.R.D.
53, 55 (S.D.N.Y. 1997) (collecting cases) ("[T]he standards to be applied in imposing
sanctions under Rule 16 are identical to the familiar standards contained in Rule 37.").
Such a dismissal may be with prejudice. See Agiwal v. Mid Island Mortg. Corp., 555
F.3d ·298,'302 (2d Cir. 2009) ("[A]ll litigants ... have an obligation to comply with court
orders, and failure to comply may result in sanctions, including dismissal with

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prejudice.") (citations and quotations omitted) (emphasis added). 1 "[D]ismissal with
prejudice is a harsh remedy to be used only in extreme situations, and then only when a
court finds willfulness, bad faith, or any fault by the non-compliant litigant." Id.
(quotations omitted).
The Court considers several factors in determining whether to impose a sanction
of dismissal with prejudice: "(1) the willfulness of the non-compliant party or the reason
for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of
noncompliance, and (4) whether the non-compliant party had been warned of the
consequences of ... noncompliance." Id. (quotations omitted); S. New England Tel. Co.

v. Glob. NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010) (same). "[T]hese factors are not
exclusive, and they need not each be resolved against" the non-compliant party for
dismissal to be appropriate, S. New England Tel. Co., 624 F.3d at 144. Ultimately, the
Court must conclude under all of the circumstances whether dismissal would be "just."

Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F:3d 130,135 (2d Cir. 2007). "[T]he
district court 'is free to consider the full record in the case"' in making this
determination. In re Bear Stearns Cos., Inc. Sec., Derivative, & ERISA Litig., 308

Prose litigants are afforded some leeway in litigation; however, "[t]he sanction
of dismissal 'may be imposed even against a plaintiff who is proceeding pro se, so long
as warning has been given that noncompliance can result in dismissal."' Johnson, 2015
WL 12999661, at *1 (quoting Valentine, 29 F.3d at 49); seeAgiwal, 555 F.3d at 302
("Pro se litigants, though generally entitled to special solicitude before district courts,
1

are not immune to dismissal as a sanction for noncompliance with discovecy orders.")
(citations and quotations omitted). Here, Garcia has been prose since November 9,
2018. (See Order dated Sept. 11, 2018). Although his noncompliance has occurred
while he was prose, Garcia's claims should still be dismissed because he has not given
this Court any indication that he intends to cure his failures to obey court orders or
prosecute his case.
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F.R.D. 113, 120 (S.D.N.Y. 2015) (quoting S. New England Tel. Co., 624 F.3d at 144). The
balance of factors here justifies the dismissal with prejudice of Garcia's claims.
A.

Willfulness

Noncompliance is willful where the party has received notice of a court's orders
and repeatedly fails to comply. See Coach Inc. v. O'Brien, No. 10-CV-6071, 2011 WL
6122265, at *3 (S.D.N.Y. Nov. 28, 2011) ("The Court deems the noncompliance willful
given that these orders were mailed directly to [defendant's] address, and yet she
repeatedly failed to comply."), report and recommendation adopted and modified on

other grounds, 2012 wt 1255276 (Apr. 13, 2012). "[T]his factor as formulated by the
Second Circuit is not just willfulness, but the willfulness of the non-compliant party or

the reason for non-compliance .... [T]he Second Circuit's inclusion of the latter phrase
recognizes that dismissal may be warranted even in the absence of such open defiance."

Jin Fang Luo v. Panarium Kissena Inc., No. 15-CV-3642, 2019 WL 360099, at *s
(E.D.N.Y. Jan.

11,

2019) (quotations omitted), report and recommendation adopted,

2019 WL 356939 (Jan. 29, 2019).
Garcia failed to comply with three court orders and to appear at two conferences:
(1) to appear at the status conference scheduled for December 12, 2018, (Scheduling
Order dated Sept. 11, 2018); (2) to show cause why he did not appear for that
conference, (Order to Show Cause dated Dec. 13, 2018); and (3) to appear at the status
conference scheduled for February 5, 2019, (Scheduling Order dated Dec. 13, 2018).
During each of these failures, Garcia was served with a copy of the Court's order via first
class mail at his home address. (Entry dated Dec. 13, 2018 (staff notes indicating docket
sheet reflecting the Order to Show Cause and Scheduling Order was mailed to Garcia's
Jamaica address); Entry dated Feb. 6, 2019 (staff notes indicating docket sheet

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reflecting February Order was mailed to Garcia at his Jamaica address)). As such, he
was aware of the obligations to comply, and his failure to do so is willful. See, e.g., Lopa

v. Safeguard Props. Mgmt., LLC, No. 14-CV-3193, 2018 WL 3104456, at *8 (E.D.N.Y.
May 16, 2018) ("Having received these multiple notices, Rosemarie Lopa had other
options besides appearing or responding as directed. She could have written to the
Court seeking an adjournment or extension of time to respond; or retained counsel, as
she had previously done, to appear or respond on her behalf. Having done none of these
things and having failed to appear or respond personally, the only conclusion to be
drawn is that her disregard of the Court's orders was willful."), report and

recommendation adopted, 2018 WL 3019875 (June 18, 2018) and 2018 WL 3094940
(June 22, 2018); Coach Inc., 2011 WL 6122265, at *3 ("The Court deems noncompliance
willful given that these orders were mailed directly to [defendant's] address, and yet she
repeatedly failed to comply.").

B.

Efficacy of Lesser Sanctions

A sanction less than dismissal would not be effective in this case. When it is

apparent a plaintiff has abandoned the action, "[t]he Court need not afford [him]
unlimited opportunities to appear," and "[n]o lesser sanction than dismissal is
appropriate under these circumstances." Bey v. Gursky, No. 17-CV-6447, 2018 WL
1611665, at *2 (E.D.N.Y. Mar. 15, 2018), report and recommendation adopted, 2018 WL
1611377 (Apr. 3, 2018).

The record allows for no reason to believe that a lesser sanction, such as a
monetary fine or a sanction short of dismissal, would encourage Garcia to reengage in
this litigation, especially given the repeated failure to abide by prior Court orders
warning that his case could be dismissed should he fail to appear. It has been over

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seven months since the Court warned Garcia that dismissal was a possibility. (See Order
to Show Cause dated Dec. 13, 2018, Dkt. No. 20). At this point, having been afforded
multiple opportunities to participate in the case, the Court has no reason to believe any
sanction other than dismissal is appropriate. See, e.g., Adams v. City ofNew York, No.
17-CV-1465, 2018 WL 1157976, at *3 (S.D.N.Y. Mar. 2, 2018) ("The Court has considered

whether a lesser sanction is appropriate, and concludes-in light of Mr. Adams'
demonstrated disinterest in prosecuting this case and the time he has wasted of both the
defendants and the Court-that it is not."); Dungan v. Donahue, No. 12-CV-5139, 2014
WL 2941240, at *4 (E.D.N.Y. June 30, 2014) (adopting report and recommendation)
("[I]n light of plaintiff's ongoing unresponsiveness to the Court, no sanctions other than
dismissal would be effective. The record presents no reason to believe that a monetary
fine or other sanction short of dismissal would inspire in plaintiff the dedication to this
litigation that he currently lacks[.] ... This case therefore presents an example of
extreme circumstances warranting the harsh remedy of dismissal[.]"); Gordon v.

Peralta, No. 10-CV-5148, 2012 WL 2530578, at *2 (E.D.N.Y. June 11, 2012) ("[T]he
Court has tried the lesser sanction of ... warning [plaintiff] of possible dismissal to no
avail. Requiring defendant's counsel to appear again or imposing lesser sanctions on
plaintiff would be futile at this juncture.") (citations and quotations omitted), report

and recommendation adopted, 2012wi 2530106 (June 29, 2012).
C.

Duration

The duration of Garcia's noncompliance warrants dismissal. "[D]urations of time
as brief as a few months have been held to weigh in favor of dispositive sanctions."

Local Union No. 40 of the Int'l Ass'n of Bridge, Structural and Ornamental Iron
Workers v. Car-Win Constr., 88 F. Supp. 3d 250, 265 (S.D.N.Y. 2015) (collecting cases)

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(adopting report and recommendation). "[P]eriods of six months or more weigh even
more heavily toward such remedies." Id. at 266 (collecting cases).
Garcia has failed to comply with Court orders since December 2018, beginning
with his failure to appear at the December 12 conference. This is more than seven
months ago. This extended period of non-compliance is sufficient to warrant dismissal.
See, e.g.,Agiwal, 555 F.3d at 303 (affirming dismissal sanction where disregard of

magistrate judge's orders spanned approximately six months); Rodriguez v. Oak Room,
No. 12-CV-2921, 2012 WL 5305551, at *2 (S.D.N.Y. Oct. 23, 2012) (dismissing after
period of non-compliance of "more than five months").
D.

Notice

Garcia has received sufficient notice to justify dismissal of his claims. "[T]he
Second Circuit has repeatedly upheld dismissal as an appropriate sanction where the
non-compliant parties were warned of the possibility." Local Union No. 40, 88 F. Supp.
3d at 266 (quotations omitted). Garcia was warned two separate times that failure to
appear could result in dismissal. Garcia was warned in the Court's December 13 Order
to Show Cause that if he failed to appear at the next status conference "the Court may be
forced to impose a sanction[,] which could include dismissal of his case." (Order to
Show Cause, Dkt. No. 20, at 1). He was again warned in the Court's February 5 Order
that his failure to appear at the conference would result in a "Report &
Recommendation ... recommending dismissal of this action for, among other things,
failing to obey repeated court orders." (Order dated Feb. 5, 2019). This notice, which

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was served on him at his listed address, is sufficient to permit dismissal. 2 See, e.g.,

Agiwal, 555 ·F.3d at 303 (Plaintiff "defied all of [the Magistrate Judge's] orders, each of
which warned of the possibility of sanctions, including dismissal."); Cadet v. ADP, Inc.,
No. 11-CV-3240, 2013 WL 6058918, at *8 (E.D.N.Y. Nov. 14, 2013) (adopting report and
recommendation) ("Plaintiff has been explicitly warned ... that his case would be
dismissed ifhe failed to appear for court conferences."); Martin v. Metro. Museum of

Art, 158 F.R.D. 289, 292-93 (S.D.N.Y. 1994) (adopting report and recommendation)
(finding it "clear," after one warning by the court, that "plaintiff received adequate
notice that his failure [to comply with a court order] would result in dismissal").
All four factors discussed above, therefore, warrant dismissal with prejudice of
Garcia's claims, pursuant to Rule 37(b)(2)(A)(v), for his violations of Rules 16(f)(1)(A)
and 16(f)(1)(C).

II.

Dismissal with Prejudice for Failure to Prosecute
There is a separate basis to dismiss Garcia's claims-his failure to prosecute his

case against Defendants. Defendants have moved to dismiss Garcia's claims pursuant to
Rule 41(b), (Mot. at 2), which provides that "a defendant may move to dismiss the action
or any claim against it" "[i]f the plaintiff fails to prosecute or to comply with [the Federal
Rules] or a court order," Fed. R. Civ. P. 41(b). "A dismissal for failure to prosecute is
committed to the court's sound discretion," and such a dismissal may be with prejudice.

That Garcia may have moved, without providing any forwarding address or
means of contact, does not entitle him to continue with his case. "Uis plaintiff's
obligation to notify the Court of any change in address." Gordon, 2012 WL 2530578, at
*2; see, e.g., Islam v. Athlete's Needs, Inc., No. 18-CV-1562, 2018'WL5781228, at *1
(E.D.N.Y. Sept. 5, 2018) (finding the warning adequate to justify dismissal when order
was sent to plaintiff and never returned as undelivered), report and recommendation
adopted, 2018.WL 5777020 (Nov. 1, 2018).
2

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Jin Fang Luo, 2019 WL 360099, at *2; see, e.g., Kaur v. Royal Arcadia Palace, Inc., No.
05-CV-4725, 2007 WL4276837, at *3 (E.D.N.Y. Nov. 30, 2007) (adopting report and
recommendation) (dismissing plaintiffs claims with prejudice under Rule 41(b)).
Courts in this Circuit consider five factors when deciding whether to grant a
defendant's motion to dismiss under Rule 41(b) for failure to prosecute:
(1) the duration of the plaintiffs failure to comply with the court order, (2)
whether plaintiff was on notice that failure to comply would result in
dismissal, (3) whether the defendants are likely to be prejudiced by further
delay in the proceedings, (4) a balancing of the court's interest in managing
its docket with the plaintiffs interest in receiving a fair chance to be heard,
and (5) whether the judge has adequately considered a sanction less drastic
than dismissal.

Jin Fang Luo, 2019 WL 360099, at *2 (citing United States ex rel. Drake v. Norden
Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004)); see also Lopa v. Safeguard Props. Mgmt.,
LLC, No. 14-CV-3324, 2018 WL 3'019875, at *1 (E.D.N.Y. June 18, 2018) (adopting
report and recommendation). These factors overlap with many of the factors under a
Rule 37(b) dismissal. "Because of the substantial overlap between the factors commonly
used to decide whether to dismiss an action under Rule 41(b) and under Rule
37(b)(2)(A), [there is] no need to repeat [the] discussion of redundant factors in detail."

Dungan, 2014 WL 2941240, at *6. The Court therefore proceeds to discuss only the
third and fourth factors in this analysis. See Lopa, 2018 'WL3019875, at *2 (dismissing

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claims under Rules 16(f) and 37 and addressing the third and fourth factors of the Rule
41 analysis for the sake of completeness).3
As to the third factor-prejudice to defendants-courts have found dismissal to be

appropriate "when a party has become completely inaccessible, as inaccessibility
strongly suggests that [plaintiff] is not diligently pursuing [his] claim." Caussade v.
United States, 293 F.R.D.. 625~ 630 (S.D.N.Y. 2013) (quotations omitted). "Where a

plaintiff has become inaccessible for months at a time, courts presume prejudice." Id.;
see, e.g., Dong v. United States, No. 02-CV-7751, 2004 WL 385117, at *3 (S.D.N.Y. Mar.

2, 2004) ("[T]he vecy fact that Dong has been inaccessible for the last two months-

without notifying the Court, the Government, or the Pro Se Office of a change of
address-strongly suggests that he is not diligently pursuing this claim. Dong's totally
unexplained disappearance is manifestly unreasonable and therefore presumptively
prejudices the Government.") (citations omitted).
Garcia's repeated failure to attend hearings and failure to comply with Court
orders has clearly prejudiced Defendants. See, e.g., Lopa, 2018 WL 3019875, at *2
("Defendants' inability to collect information that would enable them to determine the
viability of potential defenses and/ or arrive at a view as to their potential exposure
would certainly prejudice them."); Schwed v. Gen. Elec. Co., 193 F.R.D. 70, 72 (N.D.N.Y.

3 In the context of a dismissal for failure to prosecute, notice of court orders to
plaintiff's last known address is sufficient. See, e.g., Hibbert v. Apfel, No. 99-CV-4246,
2oohWL 977683, at *2 (S.D.N.Y. July 17, 2000) ("[T]he Court attempted to notify
plaintiff of the potential dismissal of her case via its May 9 Order, which was returned to
sender. Regardless of whether plaintiff actually received notice that further delays
would result in dismissal, it remained her duty to [prosecute her] case diligently. It is
also plaintiff's obligation to inform this Court's Pro Se office of any change of address.
Plaintiff's inaccessibility for over six months is anything but diligent prosecution of her
case and she has not notified the Pro Se office of any change of address.") (quotations
and citations omitted).

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2000) ("Because plaintiffs' chronic inaction has interfered with defendant's attempt to
prepare its case, and because further delay will exacerbate these hardships, the Court
concludes that defendant will indeed be prejudiced by further delay.").
As to the fourth factor-balance of interests-the Court must consider a plaintiffs

due process interests against its own interest in managing the docket. Dungan, 2014
WL 2941240, at *6. "In deciding this factor, the Court must strike a 'balance between
district court calendar congestion and the plaintiffs right to an opportunity to be heard.'
The efficient administration of justice requires that a court effectively manage its docket,
guaranteeing that its cases progress with appropriate speed." Langdell v. Hofmann, No.
05-CV-174, 2006 WL 3813599, at *4 (D. Vt. Dec. 27, 2006) (quoting Drake, 375 F.3d at
257) (citations omitted). The Court has repeatedly invested its time addressing Garcia's
failures to appear and has given him several opportunities to pursue his claims. The
course of conduct-or the lack thereof-in prosecuting the case therefore weighs in favor
of dismissal. See, e.g., Dungan, 2014 WL 2941240, at *6 ("[B]alancing the Court's
interest in managing its docket against plaintiffs interest in receiving a fair chance to be
heard militates in favor of dismissal. It is not the duty of the Court ... to contact
plaintiffs and to urge or require them to prosecute this action. By abandoning any effort
to prosecute his case, plaintiff has demonstrated that he has no interest in being
heard.") (citations and quotations omitted); see also Langdell, 2006 WL 3813599, at *5
("Because Langdell has made no effort over the last year to prosecute his case, it is
unfair to the numerous other litigants awaiting the Court's attention to permit this suit
to remain on the Court's docket.") (citations omitted).

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Therefore, in addition to dismissal under Rules 16(t) and 37(b)(2)(A)(v),
Defendants' motion should be granted, and Garcia's claims should be dismissed with
prejudice for failure to prosecute.
CONCLUSION
For the reasons stated above, the Court respectfully recommends that the
Defendants' motion to dismiss be granted and that Garcia's claims be dismissed with
prejudice for failure to abide by Court orders and failure to prosecute.
Any objections to the Report and Recommendation above must be filed with the
Clerk of the Court within 14 days of service of this report. Failure to file objections
within the specified time waives the right to appeal any judgment or order entered by
the District Court in reliance on this Report and Recommendation. See 28 U.S.C.
§ 636(b)(1); Fed.-°R. Civ~

P. 72(b)(2); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d

Cir. 2008) ("[F]ailure to object timely to a magistrate[ ] [judge's] report operates as a
waiver of any further judicial review of the magistrate[] [judge's] decision.").
Defendants shall serve a copy of this Report and Recommendation on Garcia at
his last known address, and to any other electronic contact information known to them,
and file proof of such service in the record within 14 days of the date of this Order.

SO ORDERED.

/s/SanketJ. Bulsara July 31, 2019
SANKET J. BULSARA
United States Magistrate Judge
Brooklyn, New York

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