Friederland v. 6th Precient Suffolk County et al

Filing 12

ORDER: SO ORDERED that the above-referenced factors favor dismissal of the instant case without prejudice pursuant to Rule 4l(b) of the Federal Rules of Civil Procedure. The Clerk of the Court shall close this case. 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 pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438,444-45 (1962). CM to pro se plaintiff by chambers. Ordered by Judge Joseph F. Bianco on 12/29/2014. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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BRADLEY FRIEDLANDER,

Plaintiff,

ORDER

-against-

13-CV-7429 (JFB)(AKT}

FILED

6th PRECINCT, Suffolk County, TARGET
DEPARTMENT STORE,
Defendants.

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JOSEPH F. BIANCO, District Judge:

IN CLERK'S 0
U S DISTRICT COUj[.i~~ N y

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UiC 2 9 2014

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LONG ISU\ND OFFICE

On December 26, 2013,pro se plaintiff filed a complaint in this action alleging a
violation of his civil rights. On February 14, 2014, the Court dismissed plaintiff's complaint.
The Order dismissing the complaint granted plaintiff leave to file an amended complaint within
thirty days of that Order. Over eight months elapsed, and plaintiff did not file an amended
complaint. On October 24, 2014, the Court ordered plaintiff to submit a letter to the Court no
later than November 24, 2014, explaining why his entire case should not be dismissed pursuant
to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. (See Docket Entry
10.) That Order was returned to the Court as undeliverable. (See Docket Entry 11.)
Rule 41 (b) authorizes a district court to "dismiss a complaint for failure to comply with a
court order, treating the noncompliance as a failure to prosecute." Simmons v. Abruzzo, 49 F.3d
83, 87 (2d Cir. 1995) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962)); see Lucas v.

Miles, 84 F.3d 532, 535 (2d Cir. 1996) ("[D]ismissal [pursuant to Rule 41(b)] is a harsh remedy
and is appropriate only in extreme situations."); Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir.
2004) ("Rule [4J(b)] is intended to serve as a rarely employed, but useful, tool of judicial
administration available to district courts in managing their specific cases and general
caseload."). Moreover, it is well-settled that a district court "may act sua sponte to dismiss a suit

for failure to prosecute." Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (citing Link, 370
U.S. at 630); see also LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206,209 (2d Cir. 2001)
("Although the text of Fed. R. Civ. P. 4l(b) expressly addresses only the case in which a
defendant moves for dismissal of an action, it is unquestioned that Ru1e 41 (b) also gives the
district court authority to dismiss a plaintiff's case sua sponte for failure to prosecute.").
Courts have repeatedly found that "[d]ismissal of an action is warranted when a litigant,
whether represented or instead proceeding prose, fails to comply with legitimate court
directives." Yulle v. Barkley, No. 9:05-CV-0802, 2007 WL 2156644, at *2 (N.D.N.Y. July 25,
2007) (citations omitted). A district court contemplating dismissal of a plaintiff's claim for
failure to prosecute and/or to comply with a court order pursuant to Ru1e 4l(b) must consider:
1) the duration of plaintiff's failures or non-compliance; 2) whether plaintiff had
notice that such conduct wou1d result in dismissal; 3) whether prejudice to the
defendant is likely to result; 4) whether the court balanced its interest in managing
its docket against plaintiff's interest in receiving an opportunity to be heard; and
5) whether the court adequately considered the efficacy of a sanction less
draconian than dismissal.

Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000). In deciding
whether dismissal is appropriate, "[g]enerally, no one factor is dispositive." Nita v. Conn. Dep 't

of Env. Prot., 16 F.3d 482, 485 (2d Cir. 1994); see Peart v. City ofNew York, 992 F.2d 458,
461(2d Cir. 1993) ('"[D]ismissal for want of prosecution is a matter committed to the discretion
of the trial judge [and] the judge's undoubtedly wide latitude is conditioned by certain minimal
requirements.'") (quoting Merker v. Rice, 649 F.2d 171, 173-74 (2d Cir. 1981)).
Further, "[w]hen a party changes addresses, it is his or her obligation to notifY the Court
of the new address." Garcia v. Hynes, No. 08 Civ. 2155,2009 WL 890640, at *1 (E.D.N.Y.
Mar. 31, 2009) (citing Concepcion v. Ross, No. 92 Civ. 770, 1997 WL 777943, at *1 (E.D.N.Y.

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Oct. 28, 1997)) (citing Local Civil Rule 1.3(d) and holding "[t]he responsibility for keeping the
court informed of changes of address rests with the petitioner.").
Here, a review of the docket sheet indicates that plaintiff has not communicated with the
Court since Februazy 24, 2014. The return of the Court's mailing to plaintiff as "undeliverable"
indicates that plaintiff has failed to update his address with the Court, as is his obligation. In
short, plaintiff has shown no interest in continuing with this action. Under these circumstances,
no sanction less than dismissal will alleviate the prejudice to defendants of continuing to keep
this action open. Moreover, the Court needs to avoid calendar congestion and ensure an orderly
and expeditious disposition of cases. Therefore, all the above-referenced factors favor dismissal
of the instant case. However, under the circumstances described above, the Jesser sanction of
dismissal without prejudice (rather than with prejudice) is appropriate in order to strike the
appropriate balance between the right to due process and the need to clear the docket and avoid
prejudice to defendants by retaining open lawsuits with no activity.
Accordingly, the above-referenced factors favor dismissal of the instant case without
prejudice pursuant to Rule 4l(b) of the Federal Rules of Civil Procedure. The Clerk of the Court
shall close this case. 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 pauperis status is denied for
the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438,444-45 (1962).
SOOJ.WERED.

s/ Joseph F. Bianco
F. BIANCO
Dated:

ITED STATES DISTRICT JUDGE

December~ 2014
Central Islip, New York
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