Jefferson v. Rosenblatt et al

Filing 85

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION; For the foregoing reasons, Plaintiff's Objections (Docket Entry 80) are OVERRULED, Judge Lindsay's R&R (Docket Entry 73) is ADOPTED in its entirety, and this case is DISMISSED. Defen dants' motion to dismiss for lack of prosecution (Docket Entry 78) is TERMINATED AS MOOT. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperi s status is DENIED for the purpose of any appeal. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Plaintiff and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 8/10/2018. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
KEVIN L. JEFFERSON,
Plaintiff,
MEMORANDUM & ORDER
13-CV-5918(JS)(ARL)

-againstCRAIG ROSENBLATT, SALVATORE SALVAGGIO,
ROBERT MEYER, and COUNTY OF SUFFOLK,

Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Kevin L. Jefferson, pro se
170 Commack Rd.
Deer Park, NY 11729
For Defendants:

Brian C. Mitchell, Esq.
Suffolk County Dep’t of Law
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788

SEYBERT, District Judge:
Currently pending before the Court are: (1) Magistrate
Judge Arlene R. Lindsay’s Report and Recommendation dated May 7,
2018 (the “R&R”) recommending dismissal of this action against
defendants Craig Rosenblatt, Salvatore Salvaggio, Robert Meyer,
and the County of Suffolk (collectively, “Defendants”) due to
plaintiff Kevin L. Jefferson’s (“Plaintiff”) failure to prosecute,
(R&R, Docket Entry 73), and (2) Plaintiff’s objections to the R&R
(“Objections”), (Pl.’s Obj., Docket Entry 80).
set

forth

below,

Plaintiff’s

Objections

are

For the reasons
OVERRULED,

Judge

Lindsay’s

R&R

is

ADOPTED

in

its

entirety,

and

this

case

is

DISMISSED.
BACKGROUND
The

Court

assumes

familiarity

with

the

facts

and

procedural history of this matter, which are set forth in the
Court’s March 2015 Order and the R&R, (See Mar. 2015 Order, Docket
Entry 16; R&R), and will discuss the procedural history only
insofar as it is relevant.

In short, Plaintiff filed this action

on October 25, 2013, (see Compl., Docket Entry 1), and after
failing to comply with a number of court orders, failed to appear
for jury selection and trial.

(R&R Tr., Docket Entry 73 at ECF pp

3-13, 2:9-3:5.)
First, Plaintiff failed to comply with Judge Lindsay’s
March 29, 2017 Scheduling Order, which directed him to file his
written narrative statement of facts on or before May 15, 2017.
(See Mar. 2017 Sched. Order, Docket Entry 37, at 1.) Additionally,
Plaintiff failed to comply with Judge Lindsay’s July 5, 2017 Order
directing him to file his written narrative statement with the
Court on or before July 28, 2017 and advising him that his failure
to comply may result in sanctions, including a recommendation that
this case be dismissed for failure to prosecute.
2017 Elec. Order.)

(See July 5,

On August 9, 2017, Plaintiff filed a document

entitled “Plaintiff’s Submission for Pre-Trial Order” that the

2

Court treated as his written narrative statement.

(See Pl.’s

Narrative Stmt., Docket Entry 48.)
Although Plaintiff filed a document that served as his
narrative statement, Plaintiff failed to file a revised narrative
statement, exhibit list, witness list, and summary of each witness’
testimony on or before October 13, 2017, as directed in Judge
Lindsay’s March 29, 2017 Scheduling Order.
Order at 2.)

(See Mar. 2017 Sched.

Further, he failed to comply with Judge Lindsay’s

November 2, 2017 Order providing Plaintiff “one final opportunity
to serve the defendants with a revised pretrial order by November
17, 2017” and warning him that his “[f]ailure to do so will result
in a recommendation that the case be dismissed with prejudice for
failure to prosecute pursuant to FED. R. CIV. P. 37 and 41(b).”
(Nov. 2, 2017 Order, Docket Entry 51.)

Upon Plaintiff’s failure

to comply with this order, Defendants requested that Judge Lindsay
issue a report and recommendation that this matter be dismissed
for failure to prosecute.
52, at 1-2.)

(Defs.’ Nov. 2017 Mot., Docket Entry

Judge Lindsay denied Defendants’ motion and instead

directed Defendants to incorporate Plaintiff’s “August submission
into their proposed pretrial order.”

(Nov. 28, 2017 Order, Docket

Entry 55, at 1-2.)
Finally, after participating in the February 21, 2018
pretrial conference setting the trial date, Plaintiff failed to

3

appear for jury selection and trial on May 7, 2018.

(Feb. 2018

Minute Entry, Docket Entry 63; See R&R Tr. 2:9-3:1.)
The R&R
On May 7, 2018, after Plaintiff failed to appear to
select a jury for the trial of his case, Judge Lindsay issued her
R&R on the record.

After reviewing the procedural history of this

matter, Judge Lindsay explained:
Well, this case was, as I noted, filed in
2013. I know through my experience with this
case that basically every effort has been made
to
give
[Plaintiff]
an
opportunity
to
participate in this action and pursue his
case. Multiple times as we’ve noted on the
record, he’s failed to adhere to the orders of
the Court and notwithstanding that, we tried
to make due with what we had in order to give
[Plaintiff] an opportunity to prosecute his
claims.
He knows based on multiple court orders
that have been issued to keep the Court
advised of his whereabouts and his address.
He has been warned repeatedly that his failure
to comply with the orders could lead to a
dismissal of this case and now we’re at the
point where we have actually brought in jurors
to go forward with this case. He knows about
the requirement to be here at 9:30 this
morning. He was present during the conference
with Judge Seybert at which he was advised and
instructed to be here.
It’s now 10:30, an hour past the time he
was
to
be
here.
We’ve
received
no
communication from him. I have no reason to
believe he’s coming and I don’t wish to wait
any longer for [Plaintiff].
I am going to
discharge and release the jurors who have made
the effort to be here today and I am not going

4

to make you wait any longer, Mr. Mitchell
[(defense counsel)].
I am going to conclude this with a
recommendation, a strong recommendation to
Judge Seybert, that she dismiss this case for
failure to prosecute.
(R&R Tr. 10:1-11:4.)
On June 7, 2018--after receiving an extension of time to
object to the R&R--Plaintiff filed his Objections.
Obj.)

(See Pl.s’

In his Objections, Plaintiff highlights delays in this case

not attributable to him, (Pl.’s Obj. § II), and explains why he
did not appear for jury selection and trial, (Pl.’s Obj. § III).
Essentially, Plaintiff forgot that he was scheduled to try his
case on May 7, 2018.

(Pl.’s Obj. § III (“Although Plaintiff did

take notes regarding the jury selection date and other matters
discussed during the [pretrial] telephone conference, that, in and
of itself, did not remind Plaintiff per se[ ] of his May 7, 2018
court date. . . . However, on said date, Plaintiff awakened around
10:40 am and deciding to review some of his legal papers, did
observe his notes and that he was required to be in court. . . .
[Plaintiff] had inadvertently forgotten about the May 7, 2018 court
date . . . .”)).
balance

the

He then argues that Judge Lindsay “did not

Court’s

interest

in

managing

its

docket

with

Plaintiff’s interest in being heard,” (Pl.’s Obj. § IV.A), and
concludes that this matter could not have proceeded to trial
because Plaintiff “had intended to announce the fact that he was
5

in preparation of filing a new suit against the Suffolk County
Jail and is naming Brian Mitchell as a Defendant,” (Pl.’s Obj.
§ IV.B).
Defendants oppose Plaintiff’s Objections and principally
argue that Plaintiff fails to address his non-compliance with court
orders and the history leading to the R&R’s recommendation of
dismissal.

(Defs.’ Resp., Docket Entry 82, at 3-4.)
DISCUSSION
“When evaluating the report and recommendation of a

magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are not
facially erroneous.”

Walker v. Vaughan, 216 F. Supp. 2d 290, 291

(S.D.N.Y. 2002) (citation omitted).

A party may serve and file

specific, written objections to a magistrate judge’s report and
recommendation within fourteen days of being served with the
recommended disposition.
receiving

any

timely

See FED. R. CIV. P. 72(b)(2).

objections

to

the

magistrate

Upon
judge’s

recommendation, the district court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
magistrate judge.”
P. 72(b)(3).

28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV.

The Court conducts a de novo review of any portion

of the report and recommendation to which a party objects. Walker,
216 F. Supp. 2d at 292.

6

Federal Rule of Civil Procedure 41(b) provides that
“[i]f the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the action
or any claim against it.”

FED. R. CIV. P. 41(b).

“‘Although the

text of [FRCP] 41(b) expressly addresses only the case in which a
defendant moves for dismissal of an action, it is unquestioned
that Rule 41(b) also gives the district court authority to dismiss
a plaintiff’s case sua sponte for failure to prosecute.’”

Crozier

v. Doe, No. 10-CV-3695, 2011 WL 3477124, at *1 (S.D.N.Y. Aug. 4,
2011) (alteration in original) (quoting LaSane v. Hall’s Sec.
Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001)), R&R adopted, No.
10-CV-3695 (S.D.N.Y. Aug. 30, 2011).

Dismissal pursuant to Rule

41(b) is a “harsh remedy” reserved for “extreme cases” and courts
are particularly reluctant to dismiss pro se claims on this basis.
Melendez v. City of N.Y., No. 12-CV-9241, 2014 WL 6865697, at *2
(S.D.N.Y.

Dec.

4,

2014).

“Nevertheless,

in

appropriate

circumstances, courts have dismissed such claims for failure to
prosecute.”
In

Id. (collecting cases).
determining

whether

to

dismiss

for

prosecution, the Court weighs the following factors:
(1) the duration of the plaintiff’s 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
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lack

of

its docket with the plaintiff’s interest in
receiving a fair chance to be heard, and
(5) whether
the
judge
has
adequately
considered a sanction less drastic than
dismissal.
Watkins v. Matarazzo, No. 13-CV-2477, 2016 WL 3351079, at *2
(S.D.N.Y. Jun. 14, 2016) (quoting Baptiste v. Sommers, 768 F.3d
212,

216

(2d

dispositive.”

Cir.

2014)).

“No

single

factor

is

generally

Baptiste, 768 F.3d at 216.

The Court has reviewed the R&R and finds no error in
Judge Lindsay’s recommendation that this action be dismissed for
failure to prosecute.

First, as set forth above and in the R&R,

Plaintiff’s failure to comply with court orders dates back to May
2017, when he failed to file his written narrative statement, and
continues until May 7, 2018, when he failed to appear for jury
selection and trial.

While he submitted a document that the Court

treated as his narrative statement, he filed it months after Judge
Lindsay’s initial deadline to do so had passed.
Sched. Order; Aug. 14, 2017 Elec. Order.)

(See Mar. 2017

He failed to submit a

revised narrative statement by its original due date, October 13,
2017, or by its extended due date, November 17, 2017.

(See Mar.

2017 Sched. Order at 2; Nov. 28, 2017 Order, Docket Entry 55.)
Additionally, while Plaintiff indicates in his Objections that he
was ready to proceed to trial on March 7 or 8, 2018, (Pl.’s Obj.
§§ III, IV.B), he later contradicts himself, explaining that he

did not intend to proceed to trial “as Plaintiff had intended to
8

announce the fact that he was in preparation of filing a new suit
against the Suffolk County Jail and is naming Brian Mitchell as a
Defendant,” (Pl.’s Obj. § IV.B.) In other words, Plaintiff planned
to appear in Court only to announce that he could not proceed to
trial, because he had decided--on the date the trial was scheduled
to take place--to file a new lawsuit naming defense counsel as a
defendant and seeking to have him and his office enjoined from
representing Defendants in this case.1

(Pl.’s Obj. § IV.B.)

This

new lawsuit--which would have been Plaintiff’s twentieth suit
filed in this Court--appears to have been intended to further delay
the trial of this matter.
Second,
failure

to

Judge

comply

Lindsay

with

court

cautioned
orders

Plaintiff
could

that

result

in

his
a

recommendation that his case be dismissed for failure to prosecute.
(See July 5, 2017 Elec. Order; Nov. 2, 2017 Order (providing
Plaintiff “one final opportunity to serve the defendants with a
revised pretrial order” and warning him that his “[f]ailure to do
so will result in a recommendation that the case be dismissed with
prejudice for failure to prosecute”).)
Third, “prejudice resulting from unreasonable delay may
be presumed as a matter of law.”

Peart v. City of N.Y., 992 F.2d

458, 462 (2d Cir. 1993) (citation omitted).

1

To date, no such suit has been filed.
9

This matter has been

significantly delayed by Plaintiff, and it appears that he intended
to introduce further delay by announcing a new lawsuit on the date
of trial. Moreover, “even absent such a presumption” of prejudice,
Defendants have been prejudiced by preparing for a trial that did
not go forward.

See id.

Fourth, while Plaintiff’s failures to comply with court
orders have not significantly burdened the Court, his failure to
appear for jury selection and trial weighs in favor of dismissal.
See Peart, 992 F.2d at 462 (quoting Davis v. United Fruit Co., 402
F.2d 328, 330 (2d Cir. 1968)) (“[I]t is well established that
‘[t]he failure to be ready for trial . . . is one of the basic
causes creating a backlog of calendars.’”) (second and third
alteration in original).

The Court has a busy trial calendar and

a strong interest in managing its docket.

Balancing this burden

against Plaintiff’s right to have his day in Court, the scale tips
in favor of dismissal.
(“Plaintiff

has

been

See Melendez, 2014 WL 6865697, at *3

provided

with

numerous

opportunities

to

participate in this litigation and has not taken them.”).
Fifth, the Court has considered the efficacy of lesser
sanctions and determined that they will not be effective.

As

Plaintiff is proceeding in forma pauperis, imposing a monetary
sanction is unlikely to be successful. Further, even the “repeated
threat of dismissal has not caused [Plaintiff] to proceed with his
claim.”

Id. (citations omitted).
10

Finally,
Objections,

the

including

Court
his

is

not

persuaded

accusations

of

by

Plaintiff’s

favoritism

towards

Defendants and his position that this action could not have
proceeded to trial because he intends to sue defense counsel and
have him and his office enjoined from representing Defendants “in
Plaintiff’s active cases.”

(Pl.’s Obj. §§ IV.A, IV.B.)

In sum, the Court will not allow Plaintiff to continue
to prosecute--or not prosecute--this matter at his convenience,
and agrees with Judge Lindsay that dismissal is appropriate.

See

Peart, 992 F.2d at 461-63 (2d Cir. 1993) (affirming dismissal for
failure to prosecute where plaintiff’s counsel did not appear for
trial); Ali v. A & G Co., 542 F.2d 595, 596 (2d Cir. 1976)
(affirming dismissal for failure to prosecute where “the trial
date was known well in advance and appellants should have arranged
their affairs so as to be available for trial, [but] they failed
to do so”).
CONCLUSION
For

the

foregoing

reasons,

Plaintiff’s

Objections

(Docket Entry 80) are OVERRULED, Judge Lindsay’s R&R (Docket Entry
73) is ADOPTED in its entirety, and this case is DISMISSED.
Defendants’ motion to dismiss for lack of prosecution (Docket Entry
78) is TERMINATED AS MOOT.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
11

and therefore in forma pauperis status is DENIED for the purpose
of any appeal.

See Coppedge v. United States, 369 U.S. 438, 444-

45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to the pro se Plaintiff and mark this
case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

August
10 , 2018
Central Islip, New York

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