Romero v. Baumann & Sons Bus Company

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS - The Court dismisses this action with prejudice pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure. The Clerk of the Court shall close this case. The Court certifiespursuant 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.. Ordered by Judge Joseph F. Bianco on 7/26/2017. (Bollbach, Jean)

FILE 0

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

IN CLERK'S OFFICE

U.S. DISTRICT COURT E:.O.N.Y.

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OSCAR ROMERO,

JUL 26 2017

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LONG ISLAND OFFICE

Plaintiff,

ORDER
15-CV-4150 (JFB) (SIL)

-againstBAUMANN & SONS BUS COMPANY,
Defendant.

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JOSEPH F. BIANCO, District Judge:

Before the Court is a Report and Recommendation dated April 26, 2017 (the "R&R")
from Magistrate Judge Steven Locke recommending that the Court dismiss this action for failure
to prosecute pursuant to Federal Rule of Civil Procedure 41 (b). The R&R instructed that any
objections be submitted by May 10, 2017. The date for filing any objections has since expired,
. and plaintiff has not filed any objection to the R&R. For the reasons set forth below, the Court
adopts the R&R in its entirety and dismisses plaintiffs complaint with prejudice.
Where there are no objections, the Court may adopt the report and recommendation
without de novo review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that
Congress intended to require district court review of a magistrate's factual or legal conclusions,
under a de novo or any other standard, when neither party objects to those findings."); see also

Mario v. P & C Food Mlcts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear
notice of the consequences, failure timely to object to a magistrate's report and recommendation
operates as a waiver of further judicial review of the magistrate's decision."); cf 28 U.S.C. §
636(b)(l)(c) and Fed. R. Civ. P. 72(b)(3) (requiring de1 novo review after objections). However,
because the failure to file timely objections is not jurisdictional, a district judge may still excuse
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the failure to object in a timely manner and exercise its discretion to decide the case on the merits

to, for example, prevent plain error. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003)
("[B]ecause the waiver rule is non jurisdictional, we 'may excuse the default in the interests of
justice."' (quoting Thomas, 474 U.S. at 155)).
Although plaintiff has waived any objection to the R&R and thus de novo review is not
required, the Court has conducted a de novo review of the R&R in an abundance of caution.
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 Linkv. 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 [41(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 Le Sane 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 Rule 41 (b) also gives the
district court authority to dismiss a plaintiffs 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 proceedingpro se, 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
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failure to prosecute and/or to comply with a court order pursuant to Rule 41(b) must consider:

1) the duration of plaintiffs failures or non-compliance; 2) whether plaintiff had
notice that such conduct would 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 plaintiffs 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
ofEnv. 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)).
Here, plaintiff failed to appear at the three most recent status conferences scheduled by
Magistrate Judge Locke without explanation (see ECF Nos. 24-26), and plaintiff has not filed
any papers with the Court since his attorney filed a motion to withdraw in December 2016 (see
ECF No. 20). Magistrate Judge Locke granted that motion and granted plaintiff leave to obtain
new counsel. (ECF No. 22.) Plaintiff has not communicated with the Court since that time.
Moreover, the R&R recommended dismissal with prejudice, and plaintiff still failed to
communicate with the Court.
Plaintiffs failure to appear at the status conferences and to otherwise communicate with
the Court is prejudicial to defendants, who bear the costs and burdens of having this open civil
litigation, and also contributes to calendar congestion. In short, having conducted a review of the
full record and the applicable law, and having reviewed the R&R de novo, the Court adopts the
analysis and recommendation contained in the R&R in their entirety.
The Court dismisses this action with prejudice pursuant to Rule 41 (b) of the Federal
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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).

SO~REJ{>.
/

Jose
. ianco
Uni d States District Judge
Dated: July 26, 2017
Central Islip, New York