Gary v. United States of America

Filing 60

SUMMARY ORDER - That defendants' 55 and 56 motions to dismiss are GRANTED. That Gary's 17 amended complaint is DISMISSED. Signed by Senior Judge Gary L. Sharpe on 1/15/2020. (Copy served via regular and certified mail upon plaintiff)(jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
RONALD GARY,
Plaintiff,

1:17-cv-174
(GLS/ATB)

v.
UNITED STATES OF AMERICA et
al.,
Defendants.
________________________________
SUMMARY ORDER
Plaintiff pro se Ronald Gary commenced this action against
defendants United States of America and Sterling Medical Associations,
Inc., alleging claims of medical malpractice and negligence. (See
generally Am. Compl., Dkt. No. 17.) Pending are defendants’ unopposed
motions to dismiss for failure to prosecute. (Dkt. Nos. 55, 56.) For the
reasons that follow, defendants’ motions are granted.
On October 3, 2018, Gary’s then-counsel moved to withdraw. (Dkt.
No. 44.) Defendants did not oppose this motion. (Dkt. Nos. 45, 46.) On
October 16, 2018, the court granted the motion, and provided Gary thirty
days to obtain new counsel. (Dkt. Nos. 47, 48.) After a telephone
conference held on December 10, 2018, the court extended Gary’s time to

retain counsel, and ordered him to provide a status update as to his
progress if no attorney was retained or appeared by January 14, 2019.
(Dkt. No. 50.) No attorney appeared, and Gary did not provide a status
update. The court subsequently issued two warnings to Gary, while also
affording Gary additional time to attempt to retain an attorney. (Dkt.
Nos. 51, 54.) After deadlines expired, with no update from Gary,
defendants filed their motions to dismiss. (Dkt. Nos. 55, 56.) Despite yet
another extension, this time to respond to the motions, Gary did not
respond. (Dkt. No. 57.) On July 16, 2019, Gary was sent a pro se
handbook and notice, with instruction to read, sign, and return the notice
for filing. (Dkt. No. 59.) Gary failed to do so. In sum, nearly nine months
have passed since Gary was ordered, and has failed, to obtain new
counsel, albeit multiple extensions and warnings.
As pertinent here, Fed. R. Civ. P. 41(b)1 permits dismissal of an
action upon the motion of a defendant “[i]f the plaintiff fails to prosecute or

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“Courts in this district analyze motions under [Local] Rule 41.2
using the same framework and standards as motions under Rule 41(b).”
Ireland v. Hickey, 220 F.R.D. 388, 390 (N.D.N.Y. 2004) (citation omitted).
Local Rule 41.2(a) provides that “[w]henever it appears that the plaintiff
has failed to prosecute an action or proceeding diligently, the assigned
judge shall order it dismissed.”
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to comply with . . . a court order.” “[D]ismissal for failure to prosecute is a
‘harsh remedy to be utilized only in extreme situations.’” United States ex
rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004) (quoting
Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)). To
determine whether dismissal for failure to prosecute is appropriate, the
court must consider the five factors—none of which are
dispositive—articulated in Drake:
whether: (1) the plaintiff’s failure to prosecute caused
a delay of significant duration; (2) plaintiff was given
notice that further delay would result in dismissal; (3)
defendant was likely to be prejudiced by further delay;
(4) the need to alleviate court calendar congestion
was carefully balanced against plaintiff’s right to an
opportunity for a day in court; and (5) the trial court
adequately assessed the efficacy of lesser sanctions.
Id. at 254 (citations omitted).
The court notes that Gary’s failure to respond in opposition to the
pending motions to dismiss is not without significance; under this court’s
Local Rules, a party’s failure to respond to a properly filed motion can
constitute consent to the granting of that motion, so long as the court
determines that the moving party has met its burden demonstrating
entitlement to the relief requested. See N.D.N.Y. L.R. 7.1(b)(3); Herring v.

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Tabor, No. 9:12-cv-1739, 2014 WL 2946545, at *5 (N.D.N.Y. June 30,
2014) (noting that where a defendant’s motion to dismiss is unopposed,
the “burden of persuasion is lightened such that, in order to succeed, the
motion need only be ‘facially meritorious.’” (citation omitted)). Additionally,
under the Local Rules, “plaintiff’s failure to take action for four (4) months
shall be presumptive evidence of lack of prosecution.” N.D.N.Y.
L.R. 41.2(a).
Defendants have accurately cited proper legal authority supporting
the ground upon which their motions are based, (Dkt. No. 55, Attach. 6 at
2; Dkt. No. 56, Attach. 2 at 3-4), and have sufficiently argued the relevant
factors which favor dismissal, (Dkt. No. 55, Attach. 6 at 2-3; Dkt. No. 56,
Attach. 2 at 4-6). For all of the reasons explained in defendants’ motion
papers, which the court adopts, dismissal is warranted. Accordingly, the
motions are granted, and Gary’s action is dismissed for failure to
prosecute.
Accordingly, it is hereby
ORDERED that defendants’ motions to dismiss (Dkt. Nos. 55, 56)
are GRANTED; and it is further
ORDERED that Gary’s amended complaint (Dkt. No. 17) is
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DISMISSED; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
January 15, 2020
Albany, New York

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