Wade v. The County of Nassau et al
ORDER granting 25 Motion to Dismiss for Lack of Prosecution - Based on the foregoing, and upon due consideration of the relevant legal standards, the Court, in its discretion, grants the Defendants motion to dismiss this action, without prejudice and with leave to re-file, in accordance with and subject to, the Federal Rules of Civil Procedure; the Local Civil Rules of the Eastern District; and this Courts Individual Rules of Practice. So Ordered by Judge Arthur D. Spatt on 1/21/2016. c/ecf Judgment Clerk; c/m Pltff Raymond Wade. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-againstTHE COUNTY OF NASSAU, POLICE
OFFICER KENNY RODRIGUEZ, POLICE
OFFICER DONALD COUPE, DETECTIVE
LIEUTENANT JOHN AZZATA, FORMER
POLICE COMMISSIONER LAWRENCE W.
MULVEY and POLICE OFFICERS JOHN AND
JANE DOES 1-3,
Kevin P. O’Donnell, Esq.
Attorney for the Plaintiff
125-10 Queens Blvd., Suite 15
Kew Gardens, NY 11415
Nassau County Attorney’s Office
Co-Counsel for the Defendants
One West Street
Mineola, NY 11501
By: Pablo A. Fernandez, Deputy County Attorney
SPATT, District Judge:
On September 6, 2013, the Plaintiff Raymond Wade (the “Plaintiff” or
“Wade”) commenced this civil rights action against the Defendants County of
Nassau (the “County”), Police Officer Kenny Rodriguez (“Rodriguez”), Police Officer
Donald Coupe (“Coupe”), Detective Lieutenant John Azzata (“Azzata”), and Former
Police Commissioner Lawrence W. Mulvey (“Mulvey,” together with the County,
Rodriguez, Coupe, and Azzata, the “Defendants”).
The complaint alleges causes of action based on false imprisonment, false
arrest, malicious prosecution, and municipal liability under 42 U.S.C. § 1983; as
well as inadequate training and Brady violations, under 42 U.S.C. § 1981.
Presently before the Court is an unopposed motion by the Defendants,
pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 41, to dismiss the
complaint for failure to prosecute.
As noted above, the complaint was filed on September 6, 2013. The Plaintiff’s
claims arise from his allegedly wrongful arrest on a 2010 murder charge.
asserts violations of his civil rights, and seeks resultant damages.
On October 3, 2013, United States Magistrate Judge A. Kathleen Tomlinson
scheduled an initial conference for November 25, 2013.
This conference was
subsequently adjourned to December 17, 2013.
On that date, Magistrate Judge Tomlinson adopted the parties’ proposed
discovery plan, and formalized this plan in an Initial Case Management and
Scheduling Order (the “Scheduling Order”). Among other things, the Scheduling
Order required the parties to submit a report regarding the status of discovery no
later than May 1, 2014, which would be followed by a status conference on May 6,
2014. In the meantime, the parties were to begin exchanging written discovery.
By May 5, 2014, the parties did not file the status report which had been due
four days earlier. Magistrate Judge Tomlinson issued an electronic order directing
the report to be filed by 5:00 P.M. that day.
In response to this directive, the Defendants filed a status report, which
outlined numerous instances of inaction by the Plaintiff and his counsel, Kevin P.
O’Donnell, Esq. (“O’Donnell”).
For example, the Defendants asserted that, on
December 16, 2013, they had circulated a proposed Electronically Stored
Information Agreement and Stipulation of Confidentiality to O’Donnell for his
review and comments.
Since then, nearly five months had passed without a
Further, at the December 17, 2013 initial conference, the court ordered
O’Donnell to supply HIPAA-compliant records release authorizations to the
Defendants by January 3, 2014. However, approximately four months after the
expiration of this deadline, he had not done so.
The Defendants further advised that, although the Scheduling Order
required document production and responses to requests for interrogatories to be
completed by March 18, 2014, both remained incomplete.
In this regard, the
Defendants asserted that they were unable to access critical documents regarding
the Plaintiff’s claims because the Plaintiff had not provided the necessary
authorization to unseal his criminal records.
The assigned Deputy County Attorney advised the Court that he had
attempted to communicate with O’Donnell regarding these outstanding issues, but
had not received a response.
On May 6, 2014, Magistrate Judge Tomlinson held the scheduled status
conference, but O’Donnell did not appear. In a related Civil Conference Minute
Order, Judge Tomlinson stated the following:
Counsel for the plaintiff did not appear at today’s conference. Plaintiff
has not participated in discovery nor complied with the prior Orders of
this Court. Therefore, the Court will enter a separate Order directing
plaintiff’s counsel to appear and show cause why this action should not
be dismissed for plaintiff’s failure to prosecute his claims and his
failure to comply with the Orders of this Court.
Docket Entry (“DE”) .
This was formalized in an order to show cause, made returnable on May 27,
2014 at 12:00 P.M. The Court notes that Judge Tomlinson’s order cautioned that if
O’Donnell did not appear on the return date, she would recommend to this Court
that the case be dismissed.
On May 27, 2014, counsel for all parties appeared before Judge Tomlinson for
the scheduled order to show cause hearing.
As indicated in a related Civil
Conference Minute Order, O’Donnell “offered a sincere apology to the Court and
explained that there ha[d] been a series of complicating events which have made
the course of discovery [in this case] problematic.” In this regard, O’Donnell advised
Judge Tomlinson that the Plaintiff had recently been indicted on a new murder
charge. He indicated that he was in discussions with the Plaintiff concerning the
need to withdraw this civil action, and that if he could not resolve this issue, he
would likely move to be relieved as counsel.
Judge Tomlinson granted O’Donnell additional time to continue these
discussions with his client, and scheduled a telephone conference for June 26, 2014.
However, on that date, O’Donnell failed to appear.
Due to O’Donnell’s non-
appearance, Judge Tomlinson adjourned the telephone conference to July 8, 2014,
and cautioned that “the adjourned date will not be further extended and plaintiff’s
counsel is required to participate and provide the Court with an update on his
meetings/conversations with his client as directed at the last conference.”
On July 8, 2014, counsel for all parties appeared by telephone for a status
conference with Judge Tomlinson.
A related Civil Conference Minute Order
indicates that, despite O’Donnell’s recommendation, the Plaintiff did not consent to
withdraw this action. Accordingly, O’Donnell indicated that he would seek to be
relieved as counsel. Judge Tomlinson gave O’Donnell until July 31, 2014 to make a
motion to withdraw as counsel, and stayed discovery until further notice.
The July 31, 2014 motion deadline passed, without any filings by O’Donnell.
Approximately eight months later, on March 2, 2015, the Defendants made
the instant motion to dismiss the case for failure to prosecute. Upon receiving the
motion, Judge Tomlinson scheduled a conference for March 25, 2015 at 9:30 A.M.
On that date, O’Donnell again failed to appear for the conference.
related Civil Conference Minute Order, Judge Tomlinson stated, in relevant part:
This case cannot remain in its current status. Likewise, defendants
are entitled to a decision on their motion [to dismiss for failure to
prosecute]. However, the Court has a concern that the plaintiff
himself, Raymond Wade, may not have any idea of the status of this
case. Therefore, the Court will issue an Order To Show Cause directly
to Raymond Wade apprising him of the circumstances and giving him
an opportunity to oppose the motion seeking dismissal of the case for
failure to prosecute by a date certain. If Raymond Wade does not
respond, then the Court will proceed to treat the motion as unopposed.
The Court also intends to issue an Order To Show Cause to Attorney
O’Donnell requiring him to appear and show cause, as attorney of
record, why he should not be sanctioned for his failure to act in this
matter and his failure to appear and comply with the Orders of this
On March 26, 2015, counsel for the Defendants served a copy of the abovequoted Civil Conference Minute Order upon the Plaintiff at the Nassau County
On April 9, 2015, the Plaintiff sent a responsive letter to Judge Tomlinson,
which stated the following:
In reference to the civil conference minute order I received at Nassau
County Correctional center.
Mr Kevin P O’Donnell should be
disbarred or sanction for what he has done to me in this present case &
my current law suit with Nassau County. Mr O’Donnell informed me
that he owed his friend ADA Martin Meaney a favor and he needed me
to cooperate with Mr. Meaney. When I refused to, he went through
great length to sabotage my current case and my lawsuit with Nassau
Mr O’donnell last visit to me was May 2014 where he keeps pressuring
me to drop my lawsuit against Nassau County or else the Federal
Government will be filing charges against me on conspiracy how he’s
been in contact with Nicole Boeckmann. He did everything but
accused me of being a gang member.
I advised Mr. O’Donnell that I was not dropping my lawsuit against
Nassau County. I have not heard from Mr. O’donnell. This legal
system should be just & fair. Attorneys are supposed to obey the law
they take an oath to defend the law. Mr. O’Donnell has not nothing
but sabotage my new case and now my lawsuit against Nassau County.
Judge Tomlinson had you not ordered these papers served to me at
Nassau County Correctional Center I would not have known any of
this. My parents filed papers to the Bar Association against Mr.
O’Donnell. We trusted him and he went through great length to
sabotage me at every length possible.
This letter from the Plaintiff attached correspondence from O’Donnell, dated
May 7, 2014. The Plaintiff asserts that this correspondence, from approximately
eleven months earlier, reflects the last time he heard from O’Donnell. The letter
also attached a written complaint, dated July 28, 2014, that the Plaintiff’s mother
made about O’Donnell.
However, it is not clear to whom this complaint was
On April 30, 2015, Judge Tomlinson issued a Notice of Contempt Hearing,
requiring O’Donnell to appear on May 28, 2015 at 2:00 P.M. and show cause why he
should not be found in contempt of court for failing to appear at court conferences;
failing to comply with court orders; and why the court should not take further
action as to attorney discipline against him. A copy of this notice was served on the
Plaintiff at the Nassau County Correctional Center.
O’Donnell did not appear for his scheduled contempt hearing. Nor did he
attempt to contact the court or defense counsel.
In a related Civil Conference
Minute Order, which was posted on the Court’s public docket and mailed to
O’Donnell’s office, Judge Tomlinson provided notice that she “intends to refer this
matter to the Grievance Committee of the federal court for the Eastern District of
New York for its review as to attorney O’Donnell’s conduct is this case.” However,
Judge Tomlinson agreed to give O’Donnell one final opportunity to avert such
action, namely, to contact the court by June 10, 2015.
On June 2, 2015, O’Donnell wrote a letter to Judge Tomlinson expressing
“deep[ ] regret” for his inaction and requesting permission to file a letter under seal
to explain certain “personal issues” which he claimed “distracted him” from his
professional responsibilities. Judge Tomlinson granted this request, and directed
O’Donnell to file his letter no later than June 30, 2015.
To date, more than six months has passed since the expiration of this
deadline and O’Donnell filed nothing. Nor has he communicated with the court or
Of particular note, the instant motion to dismiss has been pending for more
than ten months without any response or opposition by the Plaintiff.
The Applicable Legal Standards
“A district court may dismiss a complaint pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure for, inter alia, failure to prosecute or to comply
with a court order.” Brown v. Cnty. of Nassau, 14-cv-0247, 2015 U.S. Dist. LEXIS
44654, at *4 (E.D.N.Y. Apr. 6, 2015) (citing Lewis v. Rawson, 564 F.3d 569, 575 (2d
Cir. 2009); U.S. ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 250 (2d Cir.
2004)). “Courts have repeatedly found that ‘[d]ismissal of an action is warranted
when a litigant, whether represented or instead proceeding pro se, fails to comply
with legitimate court directives. . . .’ ” Kuar v. Mawn, 08-cv-4401, 2012 U.S. Dist.
LEXIS 125270, at *9 (E.D.N.Y. Sept. 4, 2012) (quoting (quoting Yulle v. Barkley,
05-cv-0802, 2007 U.S. Dist. LEXIS 99051, at *3 (N.D.N.Y. July 3, 2007) (Report and
Recommendation), adopted, 2007 U.S. Dist. LEXIS 53832 (N.D.N.Y. July 25, 2007)).
As one district court has explained:
In considering whether to dismiss an action for failure to prosecute or
to comply with a Court order, courts must consider the following
factors, although no one factor is dispositive: (1) the duration of the
plaintiff’s failures or non-compliance; (2) whether the plaintiff was on
notice that the delay would result in dismissal; (3) whether the
defendant is likely to be prejudiced by any further delay in the
proceedings; (4) whether the court’s interest in managing its docket
outweighs the plaintiff’s interest in receiving an opportunity to be
heard; and (5) whether a lesser sanction is available and would be
Brown, 2015 U.S. Dist. LEXIS 44654, at *5 (citing Baptiste v. Sommers, 768 F.3d
212, 216 (2d Cir. 2014); Lewis, 564 F.3d at 576).
“The decision to grant dismissal pursuant to Rule 41(b) is committed to the
discretion of the trial court.” Nicastro v. Sloan Kettering Mem. Hosp., 94-cv-2406,
1996 U.S. Dist. LEXIS 5179 (S.D.N.Y. Apr. 22, 1996) (citing Colon v. Mack, 56 F.3d
5, 7 (2d Cir. 1995)).
Application of the Relevant Factors to the Facts of this Case
In the Court’s view, the simple fact that this case is more than two years old
and has not progressed in any meaningful way past the initial discovery conference
is sufficient, without more, to justify dismissal. However, even if this were not the
case, consideration of the relevant evaluative factors produces the same result.
The First Factor – The Duration of the Plaintiff’s Inaction or
The first factor, namely, the duration of the Plaintiff’s non-compliance,
weighs decidedly in favor of dismissal. In this regard, the record is clear that, since
filing the complaint in September 2013, the Plaintiff has taken no action
whatsoever to advance the litigation, and in fact, has embarked on a course of
conduct the effect of which has been to unnecessarily delay the proceedings.
Also, apparently, to date, the Plaintiff has not fulfilled any of his discovery
In a May 5, 2015 status report, defense counsel advised Judge
Tomlinson that, for five months after the initial conference, the Plaintiff had not
provided responses to proposed confidentiality and ESI agreements; had not
supplied court-ordered HIPAA release authorizations; had not produced any
relevant documents or responded to the Defendants’ requests for interrogatories;
had not provided authorization to unseal the Plaintiff’s relevant criminal records;
and, importantly, had not responded to any of the attempts by defense counsel to
confer about these issues. There is no evidence to suggest that these deficiencies
were cured prior to the date of this Order.
Further, Plaintiff’s counsel has repeatedly disobeyed court orders and failed
to attend scheduled court conferences. For example, O’Donnell did not appear for a
May 6, 2014 status conference, prompting Judge Tomlinson to order that he show
cause why this action should not be dismissed for failure to prosecute. On May 27,
2014, after Judge Tomlinson granted O’Donnell additional time to discuss this case
with his client, he failed to appear for the scheduled follow-up conference. On July
8, 2014, O’Donnell asked Judge Tomlinson for leave to file a motion to withdraw as
counsel, which she granted.
However, he never filed the motion.
scheduled another conference approximately eight months later, on March 25, 2015,
after the Defendants sought dismissal of this action.
O’Donnell again failed to
Apparently, throughout all of this time, O’Donnell may have failed to adhere
to his responsibilities to his client. In a lengthy letter to the court, the Plaintiff
himself indicated that he had no knowledge of the numerous scheduled court
conferences and ongoing discovery. In fact, the Plaintiff indicated that O’Donnell
had not spoken to him in approximately eleven months.
As noted above, upon receiving this information, Judge Tomlinson scheduled
a contempt hearing for May 28, 2015, which O’Donnell did not attend. Only after
Judge Tomlinson warned that she planned to refer him to the grievance committee
did O’Donnell contact the court and request an opportunity to explain himself in a
sealed letter. Judge Tomlinson granted this request, but O’Donnell never filed any
Under these circumstances, clear Second Circuit precedent favors dismissal.
See, e.g., Hunter v. N.Y. State Dep’t of Corr. Servs., 515 F. App’x 40 (2d Cir. 2013)
(affirming dismissal where the only action taken by the plaintiff to prosecute her
case over a fourteen-month period was submitting to a single deposition); Smalls v.
Port Auth., 120 F. App’x 396, 396-98 (2d Cir. 2005) (affirming dismissal where,
“[f]or twenty-one months after commencement of th[e] action, plaintiff took no
action to prosecute th[e] case” and eventually failed to comply with an order to show
cause why the case should not be dismissed for failure to prosecute); Shannon v.
GE, 186 F.3d 186, 194 (2d Cir. 1999) (affirming dismissal where the only action the
plaintiff took during a two-year period was to file an untimely notice of appeal). As
the court noted in the Shannon case, “those cases in which [the Second Circuit] has
reversed dismissal for failure to prosecute have involved substantially shorter
delays than the one at issue here.” Id. (collecting cases).
In the Court’s view, this conclusion is particularly appropriate here because
O’Donnell has provided no explanation for his failures; has not opposed the instant
motion to dismiss; and has displayed “complete intransigence in the face of
[multiple] clear court order[s].” Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 667
(2d Cir. 1980); see Feurtado v. City of New York, 225 F.R.D. 474, 479 (S.D.N.Y.
2004) (collecting cases for the proposition that, although “[t]here is no time frame
specifically identifying the point at which a Rule 41(b) dismissal is warranted,” even
a “ ‘short delay’ by the plaintiff may ‘still properly result in dismissal if [plaintiff]
had willfully failed to comply with multiple court orders’ during the course of the
action” (quoting Graham v. Sullivan, 86-cv-163, 1999 U.S. Dist. LEXIS 17172
(S.D.N.Y. Nov. 5, 1999))); Antonios A. Alevizopoulos & Assoc. v. Comcast Int’l
Holdings, Inc., 99-cv-9311, 2000 U.S. Dist. LEXIS 16154, at *6-*7 (S.D.N.Y. Nov. 8,
2000) (granting dismissal where the plaintiff, among other things, failed to comply
with two court-ordered deadlines; failed to oppose the motion to dismiss; and failed
to “provide[ ] any reasonable explanation for his complete inaction and willful
disregard of th[e] Court’s orders”).
The Second Factor – Whether the Plaintiff Received Adequate
Notice of the Risk of Dismissal
The second analytical factor on a motion for a default judgment, namely,
whether the Plaintiff was on notice that further delays would result in dismissal,
also weighs decidedly in favor of dismissal.
On three separate occasions, Judge Tomlinson gave direct notice to O’Donnell
that further delays and noncompliance with the court’s orders would result in
dismissal or worse, namely, attorney discipline.
There is no question that
O’Donnell received these notices, as he repeatedly offered apologies to the Court and
requested leniencies, such as extensions of time and leave to file explanatory
papers. However, on each such occasion, O’Donnell failed to attend subsequent
court appearances, and declined the very opportunities to submit papers that he
had previously sought.
Further, this matter is presently before the Court on a motion to dismiss,
notice of which was provided to the Plaintiff, but which has gone unopposed for
approximately ten months. Thus, the facts of this case clearly satisfy the relevant
Second Circuit standard, namely, that the adequacy of notice turns on whether the
Plaintiff was advised that further delays would result in dismissal. See Feurtado,
225 F.R.D. at 479 (quoting Norden Sys., 375 F.3d at 255 (internal quotation marks
omitted)); Id. at 479-80 (finding dismissal appropriate where the plaintiff received
notice on two separate occasions that further delays would result in dismissal and
failed to oppose a motion to dismiss for failure to prosecute); see also Aybar v. City
of New York, 13-cv-825, 2014 U.S. Dist. LEXIS 125087, at *11-*12 (E.D.N.Y. Sept.
8, 2014) (finding dismissal appropriate where the plaintiff failed to respond to the
defendant’s motion to dismiss, despite being cautioned by the court on four separate
occasions of the possibility that “further inaction would result in dismissal”; noting
that “plaintiffs have failed to take any substantial steps to move their case forward
for approximately one year, despite their stated desire to continue the case, and
have not offered any reason for their inaction”).
The Third Factor – Whether the Defendants Will be Prejudiced
by Further Delay
With regard to the third factor, the Second Circuit has noted that “prejudice
to defendants resulting from unreasonable delay may be presumed.” Shannon, 186
F.3d at 195 (quoting Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir.
1982)). “This is because delay by one party increases the likelihood that evidence in
support of the other party’s position will be lost and that discovery and trial will be
made more difficult.” Id. (citing Romandette v. Wheetabix Co., 807 F.2d 309, 312
(2d Cir. 1986)). “A presumption of prejudice is particularly appropriate where, as
here, the plaintiff’s delay was prolonged.” Shannon, 186 F.3d at 195 (citing Lyell
Theatre, 682 F.2d at 43 (noting that “in cases where delay is more moderate or
excusable, the need to show actual prejudice is proportionally greater”)).
In this case, the Court finds that the Defendants will be prejudiced by further
delay. To date, the Defendants have spent more than two years actively defending
an essentially inactive lawsuit.
In this regard, the assigned Deputy County
Attorneys have appeared for numerous court conferences; have substantially
complied with outstanding court orders; have served discovery demands and sought
authorization to view relevant underlying records; and have apparently made
diligent efforts to communicate with the Plaintiff’s attorney to advance the case
forward. Nevertheless, as noted above, the Plaintiff has done almost nothing to
prosecute the matter, and the litigation has effectively stalled at the pleading
Under these circumstances, the Court finds that it would be manifestly
unfair to require the Defendants to continue participating in this action. See Aybar,
2014 U.S. Dist. LEXIS 125087, at *12 (finding prejudice where “defendants ha[d]
expended time and money to fully defend a lawsuit that plaintiffs ha[d] shown no
real interest in pursuing”); see also Blanc v. Experian Info. Solutions, Inc., 13-cv7209, 2015 U.S. Dist. LEXIS 170411, at *17 (S.D.N.Y. Dec. 17, 2015) (“With regard
to possible prejudice . . . , a failure to dismiss would likely leave the case pending for
an indefinite time into the future, or at least until plaintiffs changed their minds or
the court lost patience. Accordingly, we may infer the likelihood of some prejudice if
the motion were not granted” (internal citation and alterations omitted)); Paige v.
LaCoste, 10-cv-3356, 2014 U.S. Dist. LEXIS 137722, at *15-*16 (E.D.N.Y. May 8,
2014) (Report and Recommendation) (presuming prejudice to the defendants where
the plaintiff failed to serve discovery responses for more than a year after the
applicable deadline expired; noting that “Plaintiff’s non-compliance has left
Defendants unable to proceed in this case because the requested discovery would
provide the basic information necessary to proceed”), adopted, 2014 U.S. Dist.
LEXIS 136555 (E.D.N.Y. Sept. 22, 2014).
Further, the Plaintiff has alleged civil right violations arising from a murder
investigation that took place in 2010.
In the Court’s view, the passage of time
occasioned by the Plaintiff’s nonparticipation and nonappearance has likely had a
deleterious effect upon the Defendants’ ability to defend themselves, and will
continue to do so – a circumstance from which the Court may infer prejudice. See
Shannon, 186 F.3d at 195 (“Because the events at issue in this lawsuit took place
more than a decade before the district court dismissed the case, the likelihood that
evidence in support of the federal defendants’ position had become unavailable and
that their witnesses’ recollection had diminished was quite large. The district court
was therefore entitled to presume prejudice to the federal defendants”); Paige, 2014
U.S. Dist. LEXIS 137722, at *15 (finding prejudice where “Plaintiff’s inaction
continues to delay the litigation, increasing the likelihood of ‘fading memories and
lost evidence’ ” (quoting Bhalla v. JP Morgan Chase & Co., 03-cv-6051, 2005 U.S.
Dist. LEXIS 33430, at *6 (E.D.N.Y. Apr. 6, 2005) (Report and Recommendation),
adopted, 2005 U.S. Dist. LEXIS 9049 (E.D.N.Y. Apr. 26, 2005))).
The Fourth Factor – Balancing the Court’s Docket Against the
Plaintiff’s Opportunity to be Heard
“Under the fourth factor, a court considers ‘the balance between district court
calendar congestion and the plaintiff’s right to an opportunity to be heard.’ ”
Feurtado, 225 F.R.D. at 480 (quoting Norden Sys., 375 F.3d at 257). Although it
has been recognized that “[t]here must be compelling evidence of an extreme effect
on court congestion before a litigant’s right to be heard is subrogated to the
convenience of the court,” Lucas v. Miles, 84 F.3d 532, 536 (2d Cir. 1996), it is also
true that “ ‘fairness to other litigants, whether in the same case or merely in the
same court (as competitors for scarce judicial resources),’ may require a district
court to dismiss a case pursuant to Rule 41(b),” Feurtado, 225 F.R.D. at 480
(quoting Chira, 634 F.2d at 668); see Yacub v. Coughlin, 105 F.R.D. 152, 153
(S.D.N.Y. 1985) (“The Court cannot permit this litigant, or any litigant, to abuse its
scarce resources while many others, desirous and deserving of relief, must patiently
await their turn”).
Courts have routinely held that where, as here, plaintiffs have “squandered
multiple opportunities” to advance their cases, “and have caused needless
expenditures of judicial resources to monitor their compliance with multiple court
orders,” dismissal is appropriate. Aybar, 2014 U.S. Dist. LEXIS 125087, at *12-*13;
see Feurtado, 225 F.R.D. at 480 (“[T]he fact that [the plaintiff] repeatedly disobeyed
court orders vastly diminishes his right to have his claim heard by this
Court. . . . Because [the plaintiff] has made no effort to comply with the Court’s
directives or to prosecute his action, it would be unfair to the numerous other
litigants who await the attention of this Court to permit [the plaintiff]’s suit to
remain on the Court’s docket”); Paige, 2014 U.S. Dist. LEXIS 137722, at *16 (“[T]he
Court has expended a good deal of time and resources in addressing Plaintiff’s case,
however, the Plaintiff has failed to reciprocate in addressing Defendants’
The Court’s interest in managing its docket greatly outweighs
Plaintiff’s interest in being heard as evinced by his noncompliance with numerous
Court Orders and obligations”).
Applying these standards, the Court is of the view that the Plaintiff’s conduct
to date demonstrates a severely diminished interest in having his claims heard. As
discussed more fully above, over a two-year period, Judge Tomlinson has extended
numerous leniencies to the Plaintiff and his attorney, repeatedly providing curative
opportunities to appear in court; comply with her orders; fulfill discovery
obligations; move this case forward; and otherwise act with the level of diligence
and professionalism expected of federal court litigants and practitioners. However,
the Plaintiff and his attorney have repeatedly declined to avail themselves of these
opportunities, opting instead to defy multiple orders of the court, as well as their
basic obligations under the Federal Rules.
In the Court’s view, such indolence
cannot be tolerated, much less rewarded, by occupying a coveted place on the
Court’s typically crowded docket.
Accordingly, the fourth factor, namely, whether the Court’s interest in
managing its docket outweighs the plaintiff’s interest in receiving an opportunity to
be heard, weighs in favor of dismissal.
The Fifth Factor – Whether a Lesser Sanction is Available and
Would be Effective
With respect to the fifth and final factor, the Court finds that a lesser
sanction would be futile in this case.
As outlined above, Judge Tomlinson not only threatened O’Donnell with
dismissal, but with serious attorney discipline for his actions in this case. Yet, he
still refused to participate, ultimately failing to attend his own contempt hearing.
As noted above, there is little doubt that the Plaintiff’s conduct has prejudiced the
Defendants’ ability to prepare for trial; has slowed the discovery process to a halt;
and has wasted the valuable resources of the Defendants, their counsel, and the
Throughout all of this, O’Donnell has made no attempt to explain his actions,
let alone cure his deficiencies; has ignored multiple orders to show cause as to why
this matter should remain active; and has not responded to the instant motion to
dismiss. Under similar circumstances, other courts have concluded that dismissal,
though harsh, is the appropriate remedy. See, e.g., Blanc, 2015 U.S. Dist. LEXIS
170411, at *18 (“Plaintiffs’ failures to appear at two court conferences, to confer
with Experian’s counsel regarding discovery as ordered by the Court, and to
respond to . . . the instant motion, as well as their continued failure to communicate
with anyone, including the Court, all render the sanction of dismissal with prejudice
appropriate in this case”); Paige, 2014 U.S. Dist. LEXIS 137722, at *17-*18 (“While
the Plaintiff has had adequate time to cure his deficiency, he has not even evinced
an attempt”); Aybar, 2014 U.S. Dist. LEXIS 125087, at *13-*14 (“[N]o lesser
sanction than dismissal is likely to be effective in light of plaintiffs’ failure to
respond to defendants’ motions to dismiss or the court’s multiple orders directing
plaintiffs to take action or else risk possible dismissal”); Feurtado, 225 F.R.D. at 480
(“[The plaintiff’s] repeated violation of orders of this Court leads to the inexorable
conclusion that no sanction short of dismissal would effectively address [the
However, under the facts and circumstances of this case, the Court is not
convinced that the dismissal of this action should be with prejudice. In this regard,
the Second Circuit has explained the following:
In deciding on the suitability of lesser sanctions, and whether the
sanctions should be aimed primarily against the party or the attorney,
it can be important for the district court to assess the relative roles of
attorney and client in causing the delay, as well as whether a tactical
benefit was sought by the delay. In making this statement, we are
cognizant of the fact that a client is ordinarily bound by the acts of his
lawyer, and this – of course – extends to behavior that would justify a
dismissal for failure to prosecute. Link [v. Wabash R. Co.],37 U.S.
[626,] 633-34 [82 S. Ct. 1386, 18 L. Ed. 2d 734 (1962)] & n.10; cf.
Pioneer Inv. Servs. v. Brunswick Assocs., 507 U.S. 380, 113
S. Ct. 1489, 1499, 123 L. Ed. 2d 74 (1993). Nothing we say today
contradicts that basic principle. This principle, however, does not
relieve the district court of the obligation to consider the relevant
factors before dismissing an action – especially the suitability of lesser
sanctions. When the district court considers the appropriate sanction
for failure to prosecute an action, the more the delay was occasioned by
plaintiff’s personal obstruction, or was designed to benefit the
plaintiff’s strategic interests, the more suitable the remedy of
dismissal. Conversely, the more the delay was occasioned by the
lawyer’s disregard of his obligation toward his client, the more this
factor argues in favor of a less drastic sanction imposed directly on the
Dodson v. Runyon, 86 F. 3d 37 (2d Cit. 1996).
As discussed above, the Court has no doubt that the relevant evaluative
factors dictate a sanction of dismissal at this juncture. However, the facts also
paint a disturbing picture of a client, namely, the Plaintiff, who may have endured a
great disservice at the hands of his attorney, O’Donnell. In this regard, the Court
can discern of no facts that would suggest the Plaintiff himself is responsible for the
current posture of this case.
Rather, the record is clear that O’Donnell’s
representation has fallen short of the legal standard at every turn. Aside from his
repeated disregard for court orders; court appearances; discovery obligations;
motion practice; and, apparently, possible referral to the grievance committee, the
record further demonstrates that O’Donnell has also apparently neglected his client.
A letter from the Plaintiff, which is uncontroverted, indicates that O’Donnell
pressured him to withdraw this action, and that when he declined to do so,
O’Donnell did not communicate with him for approximately eleven months. The
Court notes that O’Donnell’s conduct in this regard is particularly questionable
because the Plaintiff is incarcerated. The record indicates that, for approximately
two years, the Plaintiff – whose ability to participate in this action while in custody
was already severely constrained – may have been operating under the mistaken
belief that his claims were being diligently pursued by his attorney. However, the
reality of the situation was far more serious.
In conclusion, although the present circumstances of this case weigh in favor
of removing it from the Court’s calendar and unburdening the Defendants from
actively defending an essentially inactive case, the Plaintiff should not be held
accountable for O’Donnell’s apparent misfeasance through a permanent bar on his
ability to re-file this lawsuit.
Accordingly, after considering the availability and effectiveness of lesser
sanctions, the Court concludes that dismissal without prejudice is appropriate here.
Based on the foregoing, and upon due consideration of the relevant legal
standards, the Court, in its discretion, grants the Defendants’ motion to dismiss this
action, without prejudice and with leave to re-file, in accordance with and subject to,
the Federal Rules of Civil Procedure; the Local Civil Rules of the Eastern District;
and this Court’s Individual Rules of Practice.
It is SO ORDERED.
Central Islip, New York
January 21, 2016
/s/ Arthur D. Spatt_____________________
ARTHUR D. SPATT
United States District Judge
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