Schaefer v. Commissioner of Social Security

Filing 18

DECISION & ORDER, dismissing the Complaint WITH PREJUDICE for failure to prosecute, with attached decisions as follows: Folk v. Rademacher, Freeman v. Lundrigan, and Nolan v. Primagency, Inc. Signed by Magistrate Judge Therese Wiley Dancks on 2/11/2019. (copy served on pro se party via regular mail and certified mail, RRR)(sg)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
JEREMY R. S.,
Plaintiff,
1:17-CV-00714(TWD)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________________________
APPEARANCES:

OF COUNSEL:

JEREMY R. S.
Plaintiff, pro se
9281 US Route 9W, Rm 1
Athens, NY 12015
HON. GRANT JAQUITH
United States Attorney
for the Northern District of New York
Counsel for Defendant
Room 218
James T. Foley U.S. Courthouse
Albany, New York 12207

JOHANNY SANTANA, ESQ.
Special Assistant U.S. Attorney

OFFICE OF GENERAL COUNSEL
Social Security Administration
26 Federal Plaza, Room 3904
New York, New York 10278
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
DECISION and ORDER
I.

INTRODUCTION
This matter is presently before the Court to consider whether this action, essentially an

appeal from an unfavorable determination of the Social Security Administration regarding
Plaintiff’s disability, should be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil

Procedure based upon pro se Plaintiff’s failure to prosecute. For the reasons that follow, the
Court dismisses Plaintiff’s Complaint (Dkt. No. 1) with prejudice.
II.

PROCEEDINGS TO DATE
Plaintiff commenced this action pursuant to 42 U.S.C. §405(g) for review of an adverse

decision of the Commissioner of Social Security by the filing of a Complaint on June 30, 2017.
(Dkt. No. 1.) A Consent to the Jurisdiction of the Magistrate Judge was filed with the
Complaint. (Dkt. No. 4.) Plaintiff was originally represented by Peter M. Margolius, Esq., who
died in the Fall of 2017, prior to the time any briefs were due.1 The Commissioner filed the
certified administrative record on December 7, 2017. (Dkt. No. 9.) Thereafter, the Court
issued a Text Order staying all deadlines to permit Plaintiff an opportunity to obtain new
counsel and directed Plaintiff to advise the Court in writing whether he would be proceeding
pro se or if he would retain new counsel to represent him. (Dkt. No. 10.) By letter dated
January 26, 2018, Plaintiff timely informed the Court he would proceed pro se and advised the
Court of his mailing address as directed. (Dkt. No. 12.) The Clerk then provided Plaintiff with
a copy of the Court’s Pro Se Handbook and Notice. (Dkt. No. 13.) The Court also directed the
Defendant to serve Plaintiff with a paper copy of the administrative record, which was
completed by Defendant on February 12, 2018. (Dkt. Nos. 14, 15.)
Plaintiff was ultimately directed to file a brief by November 21, 2018, and to provide
the Court with his proper mailing address since a previous mailing from the Court sending
Plaintiff a copy of the Text Order at Dkt. No. 14 was returned as undeliverable. (Dkt. Nos. 16,

1

See www.hudsonvalley360.com/article/peter-margolius-strong-legal-voice-dies-71, last
visited February 11, 2019.
2

17.) Plaintiff was also notified that failure to file his brief by November 21, 2018, and provide
a proper mailing address by that same date “will result in dismissal of the action for failure to
prosecute, failure to provide a proper mailing address, and failure to follow Court orders.”
(Dkt. No. 17.) Notably, Dkt. No. 17, sent to the only address the Court has on file for Plaintiff,
was not returned as undeliverable although it was sent to the same address used for the mailing
of Dkt. No. 14, which was returned per Dkt. No. 16. (See, generally, Docket.) As of the date
of this Decision and Order, Plaintiff has failed to file a brief, or request an extension of any of
the deadlines set by the Court. Plaintiff has likewise failed to contact the Court with any further
information and he has not indicated he intends to prosecute this case, nor has he otherwise
communicated with the Clerk regarding this action.
III.

DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its

discretion, dismiss an action based upon the failure of a plaintiff to prosecute the case, or to
comply with the procedural rules or orders of the court. Fed. R. Civ. P. 41(b); see also Link v.
Wabash R.R. Co., 370 U.S. 626 (1962). This power to dismiss may be exercised when
necessary to achieve orderly and expeditious disposition of cases. See Freeman v. Lundrigan,
No. 95-CV-1190, 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996) (Pooler, J.).2 Even
though Rule 41(b) speaks only of a dismissal on a motion by a defendant, courts have
recognized that the rule does not abrogate a district court’s inherent power to dismiss a
complaint, sua sponte, for failure to prosecute. See Saylor v. Bastedo, 623 F.2d 230, 238-39

2

The Court will provide pro se Plaintiffs with a copy of all of the unpublished decisions
cited in this Report-Recommendation in accordance with the Second Circuit’s decision in Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
3

(2d Cir. 1980). It is also well-settled that the term “these rules” in Fed. R. Civ. P. 41(b) refers
not only to the Federal Rules of Civil Procedure but also to the local rules of practice for a
district court. See Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006). In Social Security
cases, General Order 18, under the heading “NOTIFICATION OF THE CONSEQUENCES
OF FAILING TO FILE A BRIEF AS REQUIRED BY PARAGRAPH C.(1)(A-D)”
(emphasis in original), provides that an “[a]ction may be dismissed with prejudice on the basis
of the plaintiff’s failure to file a brief.” N.D.N.Y. General Order 18. Also, Local Rule 41.2
provides that “Whenever it appears that the plaintiff has failed to prosecute an action or
proceeding diligently, the assigned judge shall order it dismissed.” N.D.N.Y. L.R. 41.2(a). The
Rule also provides that “failure to notify the Court of a change of address . . . may result in the
dismissal of any pending action.” Id. at 41.2(b).
The correctness of a Rule 41(b) dismissal is determined in light of five factors: (1) the
duration of the plaintiff’s failure to comply with the court order (or the court’s procedural
rules); (2) whether plaintiff was on notice that failure to comply would result in dismissal; (3)
whether the defendant is likely to be prejudiced by further delay in the proceedings; (4) a
balancing of the court’s interest in managing 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. Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).
In considering the duration of Plaintiff’s failure to prosecute his claim, the Court notes
that Local Rule 41.2(a) of the Northern District states that “the 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). Upon review of the docket, it appears that Plaintiff has failed to file anything since he
4

informed the Court in a letter received on January 29, 2018, that he would proceed pro se.
(Dkt. No. 12.) Also, after not having any further contact from Plaintiff either in person, by
telephone, or by letter, the Court provided him with an opportunity to file a brief and he did not
do so. (Dkt. No. 17.) Plaintiff was warned that failure to file a brief would result in dismissal
of the action. Id. Despite prodding from the Court, Plaintiff has not followed the Court’s Order
and directives after being given an opportunity to do so. Accordingly, the Court finds the first
factor weighs in favor of dismissal.
“The Second Circuit requires that the plaintiff receive adequate notice that the case
could be dismissed due to inaction.” Folk v. Rademacher, No. 00-CV-199S, 2005 U.S. Dist.
LEXIS 32899, at *10, 2005 WL 2205816, *4 (W.D.N.Y. Sept. 9, 2005) (citing Martens v.
Thomann, 273 F.3d 159, 180-81 (2d Cir. 2001). Here, Plaintiff failed to contact the Court or
file a brief or request an extension after being given an opportunity to do so by the Court. (Dkt.
No. 17.) As noted above, Plaintiff was specifically notified by Text Order (Dkt. No. 17) that
his failure to file a brief would result in dismissal. See Nolan v. Primagency, Inc., No. 07 Civ.
134, 2008 U.S. Dist. LEXIS 31268, at *10, 2008 WL 1758644, at *3 (S.D.N.Y. Apr. 16, 2008)
(“The Second Circuit has held that where a court puts a plaintiff on notice that the court is
considering dismissal, and a plaintiff fails to file a document explaining the failures and
outlining why the action should not be dismissed, this element has been met.”) (citing Shannon
v. General Elec. Co., 186 F.3d 186, 194-95 (2d Cir. 1999)); Europacific Asset Mgmt. Corp. v.
Tradescape, Corp., 233 F.R.D. 344, 353 (S.D.N.Y. 2005) (“A court’s prior warning of
dismissal, and subsequent inaction by a plaintiff, weighs in favor of dismissal.”). Thus, the
second factor weighs in favor of dismissal.
5

The third factor is also satisfied as further delay is likely to prejudice Defendant who has
filed required documents in accordance with General Order 18 or as directed by the Court.
(Dkt. Nos. 9, 14, 15.) Nothing of substance has been completed in this case since the filing of
the administrative transcript (Dkt. No. 9) over a year ago. Therefore, the third factor also
weighs in favor of dismissal.
Under the circumstances, the Court finds the need to alleviate congestion on the Court’s
docket, and move cases toward trial, outweighs Plaintiff’s right to receive a further chance to be
heard in this case. It is the need to monitor and manage cases such as this when one party
refuses to participate that delays the resolution of this and other cases, and that contributes to
the Second Circuit’s relatively long median time to disposition for social security cases.
Finally, the Court has carefully considered sanctions less drastic than dismissal of
Plaintiff’s complaint and finds them to be inadequate under the circumstances.
IV.

CONCLUSION
The Court’s records fail to reveal that any meaningful steps have been taken by Plaintiff

to pursue his claims in this action. Despite several orders from the Court directing Plaintiff to
take specific steps to pursue this action, Plaintiff has failed to comply and has provided no
information to the Court concerning any measures taken to continue the action, or from which
the Court could meaningfully gauge his level of persistence and enthusiasm for pursuing the
action. Accordingly, based upon Plaintiff’s failure to comply with directives from the Court or
to file a brief, and after considering the factors relevant to a dismissal under Rule 41(b) of the
Federal Rules of Civil Procedure, Plaintiff’s complaint is dismissed with prejudice.

6

WHEREFORE, it is hereby
ORDERED that the Complaint is DISMISSED with prejudice, for failure to
prosecute; and it is further
ORDERED that the Clerk provide Plaintiff with copies of Folk v. Rademacher, No.
00-CV-199S, 2005 U.S. Dist. LEXIS 32899, 2005 WL 2205816 (W.D.N.Y. Sept. 9, 2005);
Freeman v. Lundrigan, No. 95-CV-1190, 1996 U.S. Dist. LEXIS 12296, 1996 WL 481534
(N.D.N.Y. Aug. 22, 1996); and Nolan v. Primagency, Inc., No. 07 Civ. 134, 2008 U.S. Dist.
LEXIS 31268, 2008 WL 1758644 (S.D.N.Y. Apr. 16, 2008); and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on Plaintiff in
accordance with the Court’s local rules.
IT IS SO ORDERED.
Dated: February 11, 2019
Syracuse, NY

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Folk v. Rademacher, Not Reported in F.Supp.2d (2005)
2005 WL 2205816

2005 WL 2205816
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Wattie FOLK, Plaintiff,
v.
P. RADEMACHER, et al., Defendants.
No. 00-CV-199S.
|
Sept. 9, 2005.
Attorneys and Law Firms
Wattie Folk, Great Meadow Corr. Facility, Comstock,
NY, pro se.
William Lonergan, New York State Attorney General’s
Office, Stephen F. Gawlik, Assistant Attorney General,
Buffalo, NY, for Defendants.

DECISION AND ORDER
SKRETNY, J.

I. INTRODUCTION
*1 Plaintiff commenced this action under 42 U.S.C. §
1983 on March 3, 2000, by filing a Complaint in the
United States District Court for the Western District of
New York. Presently before this Court is a Motion to
Dismiss filed by the remaining defendants in this case-P.
Rademacher, Sgt. Stachewiez, Lt. Hendel, W.Kelley,
Hartman, Fleming, Booker, Piasa and Sgt. Baker
(“Defendants”)-on September 2, 2004. Defendants bring
their motion pursuant to Rules 41(b) and 37(b) of the
Federal Rules of Civil Procedure. This is the third motion
filed by Defendants on these grounds. For the reasons
stated below, Defendants’ motion is granted and this case
is dismissed with prejudice.

II. BACKGROUND
This motion arises from a discovery ruling issued by the
Honorable Hugh B. Scott, United States Magistrate Judge.
On October 15, 2002, Defendants filed a Motion to
Compel Plaintiff to respond to their First Set of
Interrogatories because Plaintiff’s initial response had
been inadequate. On May 27, 2003, Judge Scott granted
Defendants’ Motion to Compel and directed Plaintiff to
file appropriate interrogatory responses within twenty
days. Despite being granted an extension of time in which
to respond, Plaintiff failed to file his interrogatory
response. As a result, on August 19, 2003, Defendants
filed a Motion to Dismiss pursuant to Rules 41(b) and
37(b) of the Federal Rules of Civil Procedure.
On November 5, 2003, this Court denied Defendants’
Motion to Dismiss after Plaintiff satisfactorily explained
the reason he failed to comply with Judge Scott’s Order.
This Court granted Plaintiff an additional thirty days
within which to file his response to Defendants’ First Set
of Interrogatories. Plaintiff filed and served his response
to Defendants’ First Set of Interrogatories on November
21, 2003. This response, however, was simply a
photocopy of the response Plaintiff initially filed on
August 29, 2002, the one Judge Scott found to be
inadequate.
Consequently, Defendants filed a second Motion to
Dismiss on December 19, 2003. Plaintiff filed a response
in opposition. Therein, Plaintiff did not deny that he
simply re-filed his initial interrogatory response. Rather,
he argued that Judge Scott did not have dispositive
jurisdiction, and therefore lacked the proper authority to
find his initial interrogatory response inadequate. Further,
Plaintiff argued that he did not fail to respond as
Defendants alleged because he did indeed file a response.
On May 24, 2004, this Court denied Defendants’ Second
Motion to Dismiss. In doing so, however, this Court
rejected Plaintiff’s arguments and excuses for not
complying with Judge Scott’s Order. Nonetheless,
because Plaintiff is proceeding pro se, this Court
determined that granting the relief Defendants requested
would be too drastic a measure at that stage of the
litigation. See Bobal v. Rensselaer Polytecnic Inst., 916
F.2d 759, 764 (2d Cir.1990) ( “dismissal with prejudice
[under Rule 37] is a harsh remedy to be used only in
extreme situations ...”). This Court warned Plaintiff that
his lawsuit may be dismissed with prejudice if he did not
file and serve appropriate responses to Defendants’ First
Set of Interrogatories within thirty days. Cf. id. at 764

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Folk v. Rademacher, Not Reported in F.Supp.2d (2005)
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(discussing that a court may dismiss an action brought by
a pro se plaintiff if such plaintiff has been advised by the
court that further non-compliance with a court order could
result in dismissal of the case with prejudice).
*2 On June 17, 2004, Plaintiff filed a Motion to Extend
the thirty-day response deadline. By Order filed July 7,
2004, this Court directed Defendants to provide Plaintiff
with another copy of their First Set of Interrogatories,
extended Plaintiff’s deadline to respond to August 30,
2004, and warned Plaintiff that this was his final
extension of time and that his failure to respond could
result in his case being dismissed with prejudice. On
August 13, 2004, Plaintiff filed his response to
Defendants’ First Set of Interrogatories.
On September 2, 2004, Defendants filed their instant
Third Motion to Dismiss pursuant to Rules 41(b) and
37(b) of the Federal Rules of Civil Procedure. By Order
filed October 7, 2004, this Court directed Plaintiff to file a
response to Defendants’ motion on or before October 29,
2004. On October 29, 2004, Plaintiff filed a Motion for
Extension of Time to respond. By Order filed November
4, 2004, this Court extended Plaintiff’s response deadline
to November 29, 2004, and warned Plaintiff that his
failure to file a response could lead to Defendants’ motion
being granted as uncontested. To date, Plaintiff has not
filed a response to Defendants’ motion.

III. DISCUSSION
A. Dismissal under Rule 41(b) For Failure to Prosecute
This case first warrants dismissal based on Plaintiff’s
failure to prosecute, pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure, which provides that:
[f]or failure of the plaintiff to
prosecute or to comply with these
rules or any order of court, a
defendant may move for dismissal of
an action or of any claim against the
defendant. Unless the court in its
order
for
dismissal
otherwise
specifies, a dismissal under this
subdivision and any dismissal not
provided for in this rule, other than a
dismissal for lack of jurisdiction, for
improper venue, or for failure to join
a party under Rule 19, operates as an
adjudication upon the merits.

FED. R. CIV. P. 41(b).
Rule 41(b) does not define what constitutes failure to
prosecute. However, the Second Circuit has stated that
failure to prosecute “can evidence itself either in an action
lying dormant with no significant activity to move it or in
a pattern of dilatory tactics.” Lyell Theatre Corp. v. Loews
Corp., 682 F.2d 37, 42 (2d Cir.1982). Dismissal pursuant
to Rule 41(b) falls within the court’s discretion. See id. at
42-43 (“the scope of review of an order of dismissal is
confined solely to whether the trial court has exercised its
inherent power to manage its affairs within the
permissible range of its discretion”). It is, however, “a
harsh remedy to be utilized only in extreme situations.”
Harding v. Fed. Reserve Bank, 707 F.2d 46, 50 (2d
Cir.1983) (quoting Theilmann v. Rutland Hosp., Inc., 455
F.2d 853, 855 (2d Cir.1972) (per curiam); see also Chira
v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d
Cir.1980) (discussing the sanction of dismissal for failure
to prosecute as “pungent, rarely used, and conclusive”).
This is particularly true in cases involving pro se litigants,
where dismissal for failure to prosecute should only be
granted “when the circumstances are sufficiently
extreme.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.1996)
(citing Nita v. Connecticut Dep’t of Envtl. Prot., 16 F.3d
482, 487 (2d Cir.1994)).
*3 The following factors, none of which is dispositive,
must be considered in determining whether dismissal for
failure to prosecute is warranted: (1) the duration of the
plaintiff’s failures, (2) whether the plaintiff received
notice that further delays would result in dismissal, (3)
whether the defendant is likely to be prejudiced by further
delay, (4) whether an appropriate balance has been struck
between alleviating the court’s calendar congestion and
protecting the litigants’ due process rights, and (5)
whether lesser sanctions would be appropriate. See United
States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248,
255 (2d Cir.2004); Nita, 16 F.3d at 485; Feurtado v. City
of New York, 225 F.R.D. 474, 477 (S.D.N.Y.2004)
(quoting Jackson v. City of New York, 22 F.3d 71, 74 (2d
Cir.1994)). In the present case, these factors weigh in
favor of dismissal.

1. Duration of Failures
The relevant inquiry on this factor is twofold: (1) whether
the plaintiff is at fault for failing to prosecute, and (2)
whether the plaintiff’s failures were of significant
duration. See Norden Sys., 375 F.3d at 255.
In this case, Plaintiff has failed in two ways. First, as
noted above, Plaintiff has failed to respond to Defendants’
Third Motion to Dismiss, despite twice being directed by

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this Court to do so. Second, and more significant, Plaintiff
has failed to adequately comply with Judge Scott’s
discovery Order of May 27, 2003. Plaintiff has been
afforded numerous opportunities to file an appropriate
response to Defendants’ First Set of Interrogatories. This
Court alone has twice extended Plaintiff the benefit of the
doubt by denying two Motions to Dismiss for Plaintiff’s
failure to engage in discovery. While Plaintiff did, in fact,
file a response to Defendants’ First Set of Interrogatories
on August 13, 2004, his response is wholly inadequate.
Plaintiff’s response contains multiple objections to
Defendants’ basic interrogatory requests and does not
provide anything by way of meaningful discovery. In fact,
no useful information whatsoever is contained in
Plaintiff’s response. Clearly, Plaintiff alone is responsible
for repeatedly filing inadequate responses to Defendants’
discovery request. As a result, Defendants still have not
received any meaningful response to their interrogatory
requests.
With respect to the second inquiry, which concerns the
duration of Plaintiff’s failures, it has been almost one year
that Plaintiff has failed to file a response to Defendants’
Third Motion to Dismiss. The delay caused by Plaintiff’s
failure to response to Defendants’ interrogatory request is
even more significant. Defendants filed and served their
First Set of Interrogatories on August 17, 2001. It has thus
been more than four years and Plaintiff still has not filed
an adequate response. This is a failure of significant
duration. Cf. Chira, 634 F.2d at 666-67 (delay of six
months sufficient to warrant dismissal for failure to
prosecute); Antonios A. Alevizopoulos & Assoc., Inc. v.
Comcast Int’l Holdings, Inc., No. 99 Civ. 9311, 2000 WL
1677984, at *2 (S.D.N.Y. Nov.8, 2000) (delay of four
months warranted dismissal). Thus, this Court finds that
this factor weighs in favor of dismissal. In this Court’s
view, all delay in this case is attributable to Plaintiff and it
is of significant duration.

2. Notice of Dismissal
*4 The Second Circuit requires that the plaintiff receive
adequate notice that the case could be dismissed due to
inaction. See Martens v. Thomann, 273 F.3d 159, 180-81
(2d Cir.2001). In the present case, Plaintiff had adequate
notice. First, both the initial Scheduling Order on
Defendants’ Third Motion to Dismiss and the Order
granting Plaintiff’s request for an extension of time
warned Plaintiff that his failure to file a response as
directed could lead to Defendants’ motion being granted
as uncontested. Second, this Court’s Decision and Order
denying Defendants’ First Motion to Dismiss explicitly
stated that Defendants were free to seek dismissal of
Plaintiff’s Complaint if he failed to respond to the First

Set of Interrogatories as directed. Moreover, this Court’s
Decision and Order denying Defendants’ Second Motion
to Dismiss warned Plaintiff that his failure to file
appropriate responses to Defendants’ First Set of
Interrogatories could result in this action being dismissed
with prejudice. Because Plaintiff was repeatedly put on
notice that his case could be dismissed due to his
continued inaction, this factor strongly weighs in favor of
dismissal. See Lyell Theatre, 682 F.2d at 42-43 (Rule
41(b) dismissal upheld where plaintiff was warned by
opposing counsel and the court that dismissal for failure
to prosecute was possible).

3. Prejudice to Defendants
The third factor requires an inquiry into whether the
defendant has been prejudiced by the plaintiff’s inaction.
“Prejudice to defendants resulting from unreasonable
delay may be presumed, but in cases where delay is more
moderate or excusable, the need to show actual prejudice
is proportionately greater.” Lyell Theatre, 682 F.2d at 43
(citations omitted). In Lyell Theatre, the court presumed
prejudice where the plaintiff on numerous occasions
failed to file documents as directed by the court. Id. at
39-40, 43. Similar to the present case, the plaintiff in Lyell
Theatre continued to ignore the court’s orders even after
he had been warned that he was risking dismissal. Id. at
39. Under Lyell Theatre, the prejudice to Defendants in
this case may be presumed. Thus, this factor weighs in
favor of dismissal.

4. Balance between Calendar Congestion and Due
Process Rights
The fourth factor requires the court to consider the
balance between calendar congestion and the plaintiff’s
right to present his or her case. See Norden Sys., 375 F.3d
at 257. In this regard, “ ‘a court must not let its zeal for a
tidy calendar overcome its duty to justice.” ’ Feurtado,
225 F.R.D. at 480 (quoting Davis v. United Fruit Co., 402
F.2d 328, 331 (2d Cir.1968)). Plaintiff’s failure to comply
with Judge Scott’s discovery order has resulted in this
Court having to prepare and file numerous scheduling
orders, as well as decide three separate motions to
dismiss. While this has been a needless expenditure of
judicial resources, this Court cannot conclude that the
overall effect on docket congestion has been significant.
*5 This Court notes, however, that Plaintiff has been
afforded Due Process rights in that he has been provided
numerous opportunities to comply with the Orders of this
Court. Thus, Plaintiff’s own failure to litigate this matter
is not a denial of Due Process. See Dodson v. Runyon, 957

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Folk v. Rademacher, Not Reported in F.Supp.2d (2005)
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F.Supp. 465, 470 (S.D.N.Y.1997) (“any claim that
plaintiff’s due process rights were violated thus cannot
prevail because the delay and resultant dismissal of
plaintiff’s case are of his own making”); cf. Feurtado, 225
F.R.D. at 480 (repeated failure to comply with court
orders diminishes a plaintiff’s right to present his claims).
Accordingly, this factor also weighs in favor of dismissal.

5. Consideration of Lesser Sanctions
Finally, the Second Circuit requires district courts to
consider whether lesser sanctions would sufficiently
remedy any prejudice resulting from the plaintiff’s
inaction. See Norden Sys., 375 F.3d at 257. Upon
reviewing the entire record in this case, it is the opinion of
this Court that Plaintiff has no intention of complying
with this Court’s Orders or properly litigating this case.
Plaintiff has repeatedly ignored court orders by failing to
file a response to Defendants’ Third Motion to Dismiss
and to Defendants’ First Set of Interrogatories. Given the
procedural history of this case, this Court finds that any
sanction short of dismissal would be ineffective. See
Smith v. Human Res. Admin. of New York City, 2000 WL
307367, at *3 (S.D.N.Y. Mar.24, 2000) (finding lesser
sanctions inappropriate where past court orders did not
motivate the plaintiff to move the case forward);
Alevizopoulos, 2000 WL 1677984, at 4 (finding lesser
sanctions inappropriate based on repeated failures to
comply with court orders). Thus, this final factor also
weighs in favor of dismissal.
Accordingly, this Court finds that dismissal of this case is
warranted under Rule 41(b) for Plaintiff’s failure to
prosecute.

B. Dismissal under Rule 37(b) For Failure to Comply
with Discovery Orders
“A district court may impose sanctions when ‘a party ...
fails to obey an order to provide or permit discovery.” ’
Burns v. Imagine Films Entm’t, Inc., 164 F.R.D. 594, 598
(W.D.N.Y.1996) (quoting FED. R. CIV. P. 37(b)). Rule
37 of the Federal Rules of Civil Procedure, which
concerns the discovery obligations of civil litigants, vests
district courts with “broad power” and discretion to
impose sanctions, including dismissal, on parties who fail
to adhere to discovery orders. See Friends of Animals,
Inc. v. United States Surgical Corp., 131 F.3d 332, 334
(2d Cir.1997) (per curiam); see also Jones v. J.C.
Penney’s Dep’t Stores, Inc., 228 F.R.D. 190, 195
(W.D.N.Y.2005) (identifying dismissal of the action as an
available sanction under Rule 37); JSC Foreign Econ.
Ass’n. Technostroyexport v. Int’l Dev. & Trade Servs.,

Inc., No. 03 Civ. 5562, 2005 WL 1958361, at *9
(S.D.N.Y. Aug. 16, 2005).
*6 While Rule 37 dismissal is a drastic remedy to be
reserved only for extreme circumstances, it “is warranted
... where a party fails to comply with the court’s discovery
orders willfully, in bad faith, or through fault.” John B.
Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d
1172, 1176 (2d Cir.1988) (and cases cited therein); see
also Societe Int’l v. Rogers, 357 U.S. 197, 212, 78 S.Ct.
1087, 2 L.Ed.2d 1255 (1958) (sanctions under Rule 37
justified where responding party has control over
information requested and fails or refuses production
without showing of inability to comply with court’s
order). Moreover, “dismissal with prejudice may be
imposed even against a plaintiff who is proceeding pro se,
so long as a warning has been given that noncompliance
can result in dismissal.” Valentine v. Museum of Modern
Art, 29 F.3d 47, 50 (2d Cir.1994) (per curiam).
For all of the reasons discussed above, this Court finds
that dismissal of this case is also proper under Rule 37(b)
for Plaintiff’s failure to comply with discovery orders.

IV. CONCLUSION
Mindful of the fact that pro se cases should not easily be
dismissed for procedural deficiencies, this Court
concludes that Plaintiff’s failures in this case go beyond
procedural deficiencies, and constitute actual neglect.
Plaintiff has failed to diligently prosecute this action in
any manner, and has failed to comply with orders of this
Court. As such, because each of the factors relevant to the
Rule 41(b) and Rule 37(b) analysis favor dismissal, this
Court will dismiss this case with prejudice.

V. ORDERS
IT HEREBY IS ORDERED, that Defendants’ Third
Motion to Dismiss (Docket No. 145) is GRANTED.
FURTHER, that this case is dismissed with prejudice
pursuant to Rules 41(b) and 37(b) of the Federal Rules of
Civil Procedure.
FURTHER, that the Clerk of the Court is directed to close
this case.
SO ORDERED.

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4

Folk v. Rademacher, Not Reported in F.Supp.2d (2005)
2005 WL 2205816

Not Reported in F.Supp.2d, 2005 WL 2205816
All Citations
End of Document

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5

Freeman v. Lundrigan, Not Reported in F.Supp. (1996)
1996 WL 481534

1996 WL 481534
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Millicient FREEMAN, Plaintiff,
v.
Kevin LUNDRIGAN, C.O., Defendant.
No. 96–CV–1190 (RSP/RWS).
|
Aug. 22, 1996.
Attorneys and Law Firms
Millicient Freeman, Oriskany, NY, Pro se.
McLane and Smith, L.L.P., Utica, NY (Steven A. Smith,
of counsel), for Defendant.

ORDER
POOLER, District Judge.
*1 By Order dated February 5, 1996 (“Order”), I
approved the Order and Report–Recommendation of
Magistrate Judge Ralph W. Smith, Jr., dated October 5,
1995, and dismissed this action as against Daniel
Middaugh, Michael Durant, Todd Egger, Robert Stanton
and Daryl Bourant. See Dkt. No. 11.
A copy of the Order was served on Freeman at her last
known address by regular mail on February 6, 1996. On
February 12, 1996, the Order was returned to the Court
marked “No Longer at This Facility—Please Return to
Sender.” See Dkt. No. 12.
On June 19, 1996, Steven A. Smith, Esq., attorney for the
defendant, filed an affidavit with the Court stating that he
had attempted to serve a first set of interrogatories on
Freeman at the address listed on the summons, and that it
was returned to him by the Post Office marked “RTS” or
return to sender. See Dkt. No. 14.
Rule 41(b) of the Federal Rules of Civil Procedure
provides that a court may, in its discretion, dismiss an
action based upon the failure of a plaintiff to prosecute an
action or comply with any order of the court. Link v.
Wabash Railroad County Independent School District,

370 U.S. 626 (1962). This power to dismiss an action may
be exercised when necessary to achieve orderly and
expeditious disposition of cases. See Rodriguez v. Walsh,
No. 92–Civ–3398, 1994 WL 9688, *1 (S.D.N.Y. Jan. 14,
1994) (citations omitted).
Additionally, this Court specifically cautioned Freeman
that her failure “to promptly notify the Clerk’s Office of
any change in her address ... [would] result in the
dismissal of the instant action.” See Dkt. No. 3 at 7.
Moreover, a plaintiff has the duty to inform the Court of
any address changes. As I have stated:
It is neither feasible nor legally
required that the clerks of the
district
courts
undertake
independently to maintain current
addresses on all parties to pending
actions. It is incumbent upon
litigants to inform the clerk of
address changes, for it is manifest
that communications between the
clerk and the parties or their
counsel
will
be
conducted
principally by mail. In addition to
keeping the clerk informed of any
change of address, parties are
obliged to make timely status
inquiries.
Address
changes
normally would be reflected by
those inquiries if made in writing.
Dansby v. Albany Cty Corr. Facility, No. 95–CV–1525,
1996 WL 172699, *1 (N.D.N.Y. Apr. 10, 1996) (Pooler,
J.) (quoting Perkins v. King, No. 84–3310, slip op. at 4
(5th Cir. May 19, 1985) (other citations omitted)); see
generally Rule 41.2(b) of the Local Rules of Practice for
the Northern District of New York.
This matter cannot proceed without notification to the
Court by Freeman of her current address. Therefore, it is
hereby:
ORDERED, that this action is dismissed, See Rule
41.2(b) of the Local Rules of Practice for the Northern
District of New York, and it is further;
ORDERED, that the Clerk serve a copy of this Order on
Freeman by regular mail at her last known address and on
Steven A. Smith, Esq., attorney for the defendant.
*2 IT IS SO ORDERED.

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1

Freeman v. Lundrigan, Not Reported in F.Supp. (1996)
1996 WL 481534

Not Reported in F.Supp., 1996 WL 481534
All Citations
End of Document

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2

Nolan v. Primagency, Inc., Not Reported in F.Supp.2d (2008)
2008 WL 1758644, 70 Fed.R.Serv.3d 397

including Nolan I. However, certain facts post-date those
orders and are recounted here.
KeyCite Yellow Flag - Negative Treatment
Distinguished by Keitt v. Doe, W.D.N.Y., December 5, 2013

2008 WL 1758644
United States District Court,
S.D. New York.

John NOLAN, Plaintiff,
v.
PRIMAGENCY, INC. et al., Defendants.
No. 07 Civ. 134(RJS).
|
April 16, 2008.

MEMORANDUM AND ORDER
RICHARD J. SULLIVAN, District Judge.
*1 On January 31, 2008, this Court issued an Order to
Show Cause (the “OSC”) sua sponte, directing counsel
for plaintiff John Nolan, Mr. Louis A. Piccone, Esq., and
counsel for defendants Primagency, Inc., Steven Lebetkin,
and Conrad J. Isoldi (“Defendants”), Mr. Neil R. Flaum,
Esq., to show cause why this case should not be dismissed
and/or why sanctions and a finding of civil contempt on
Mr. Piccone and/or Mr. Flaum should not issue given the
failure of plaintiff to diligently prosecute this case, and
the failure of the parties to follow Court orders. After
counsel for plaintiff failed to appear on the return date of
the OSC, the Court issued an order on March 3, 2008
imposing sanctions on the parties, but declining to dismiss
the case, provided that the parties complied with the
directives contained in that order. See Nolan v.
Primagency, Inc., No. 07 Civ. 134(RJS), 2008 WL
650387 (S .D.N.Y. Mar. 3, 2008) (“Nolan I” ). Plaintiff
failed to comply with that order in each and every respect.
Accordingly, pursuant to Federal Rule of Civil Procedure
41(b), this action is dismissed with prejudice.

I. BACKGROUND
The Court presumes the parties’ familiarity with the facts
relevant to this Order, which are recounted in detail in the
OSC, as well as prior orders and transcripts in this matter,

The Court in Nolan I imposed civil contempt sanctions on
Mr. Piccone and Mr. Flaum, in the amounts of $750.00
and $200.00, respectively. See Nolan I at *1-4. Nolan I
also included the following directives:
Additionally, Mr. Piccone has until
March 17, 2008, to comply with the
Court’s November 1, 2008 and
January 3, 2008 orders. This means
that by March 17, 2008, Mr.
Piccone must (1) properly file the
Amended Complaint via the
Court’s electronic case system
(“ECF”); (2) submit a courtesy
copy of the Amended Complaint to
chambers in accordance with the
Individual
Practices
of
the
undersigned; (3) confer with
Defendants’ counsel, Mr. Flaum,
regarding a joint proposed Case
Management Plan; (4) submit a
proposed Plan to the Court by hand
delivery, email, or regular mail,
provided that it reaches chambers
by March 17, 2008; and (5) submit
a joint status letter, along with Mr.
Flaum, outlining what, if anything,
has transpired in this case since the
November 1, 2007 conference. Mr.
Piccone is also directed to forward
a copy of this order to his client,
plaintiff John Nolan and file proof
of service electronically with the
Court .... Failure to comply with
this Order in any respect shall
result in dismissal of this case
pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure.
Nolan I, 2008 WL 650387 at *3 (emphasis added). With
regard to Mr. Flaum, Nolan I contained the following
directives:
In addition, Mr. Flaum is given a
limited amount of time in which to
comply with past orders. This
means that Mr. Flaum must (1)
properly file an answer to the
Amended Complaint via the
Court’s ECF system by April 7,

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Nolan v. Primagency, Inc., Not Reported in F.Supp.2d (2008)
2008 WL 1758644, 70 Fed.R.Serv.3d 397

2008, assuming, of course, that the
Amended Complaint has been filed
as of March 17, 2008; (2) submit a
courtesy copy of the Answer to
chambers in accordance with the
Individual
Practices
of
the
undersigned; (3) confer with
Plaintiff’s counsel, Mr. Piccone,
regarding a joint proposed Case
Management Plan; (4) submit a
proposed Plan to the Court by hand
delivery, email, or regular mail,
provided that it reaches chambers
by March 17, 2008; and (5) submit
a joint status letter, along with Mr.
Piccone, no later than March 17,
2008, outlining what, if anything,
has transpired in this case since the
November 1, 2007 conference. If
for some reason a joint letter is not
possible, Mr. Flaum shall submit a
status letter to the Court by March
17, 2008 explaining why the
submission of a joint letter was not
possible. Additionally, Mr. Flaum
shall be present at the conference
on Tuesday, April 8, 2008 at 10:30
a.m., and is also directed to forward
a copy of this Order to his clients
and file proof of service
electronically with the Court.
Failure to strictly comply with this
order shall result in further
sanctions.
*2 Id. at *4. The Court in Nolan I stated three separate
times that the case would be dismissed if plaintiff failed to
comply with any of these directives. Id. at *1-5.
Incredibly, as of April 8, 2008, as noted in the record on
that day’s conference, the parties collectively had failed
to comply with even one of the directives contained in
Nolan I. (See Apr. 8 Tr. at 3.) Mr. Piccone admitted on
the record that he had not complied with any of the
directives in Nolan I, and that his failure to comply with
Nolan I was due to personal issues that the Court does not
recount here but are referenced, at least in part, in the
transcript of the April 8, 2008 telephone conference.1 (See
id. at 3-4.) Mr. Flaum noted that although he had also
“missed the boat” (id. at 8), he sent in payment of the
$200.00 sanction on April 7, 2008 and filed the status
letter that day (see id.), 21 days after the deadline
contained in Nolan I.2 It is unclear whether Mr. Flaum
ever forwarded a copy of Nolan I to his clients as

directed, but it is certainly clear from the docket sheet in
this case that Mr. Flaum failed to file the required proof of
service. See Nolan I, 2008 WL 650387, at *4.

II. DISCUSSION

A. Legal Standard for Dismissal Pursuant to Rule 41(b)
Rule 41(b) expressly authorizes involuntarily dismissal
“[i]f the plaintiff fails to prosecute or to comply with
these rules or a court order.” Fed.R.Civ.P. 41(b); see also
LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d
Cir.2001). The “primary rationale” for dismissal pursuant
to Rule 41(b) is “the failure of plaintiff in his duty to
process his case diligently.” Lyell Theatre Corp. v. Loews
Corp., 682 F.2d 37, 43 (2d Cir.1982). Dismissal pursuant
to Rule 41(b) is committed to the discretion of the district
court, and may be imposed sua sponte. See Link v.
Wabash Railroad Co., 370 U.S. 626, 633 (1962); LeSane,
239 F.3d at 209. Rule 41(b) provides that such a dismissal
“operates as an adjudication on the merits” unless the
dismissal order states otherwise. See Lyell Theatre, 682
F.2d at 42-43.
Dismissal is an extreme and “harsh” remedy only to be
imposed in the most “extreme” situations, and the Court
must consider the entire record in deciding whether
dismissal is appropriate. See Lucas v. Miles, 84 F.3d 532,
535 (2d Cir.1996); Minnette v. Time Warner, 997 F.2d
1023, 1027 (2d Cir.1993). However, in appropriate cases,
dismissal must be available, “not merely to penalize those
whose conduct may be deemed to warrant such a
sanction, but to deter those who might be tempted to such
conduct in the absence of such a deterrent.” Nat’l Hockey
League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643
(1976). While dismissal based on the actions of a party’s
attorney may have serious consequences for the
represented party, the Supreme Court has recognized that
“[t]here is certainly no merit to the contention that
dismissal of petitioner’s claim because of his counsel’s
unexcused conduct imposes an unjust penalty on the
client.” Link, 370 U.S. at 633.
*3 The Second Circuit has instructed that a district court
weighing dismissal of a case pursuant to Rule 41(b)
should employ a balancing test, considering the following
factors:
(1) the duration of the plaintiff’s
failure to comply with the court

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2

Nolan v. Primagency, Inc., Not Reported in F.Supp.2d (2008)
2008 WL 1758644, 70 Fed.R.Serv.3d 397

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 its
docket with the plaintiffs interest in
receiving a fair chance to be heard,
and (5) whether the judge has
adequately considered a sanction
less drastic than dismissal.
Lucas, 84 F.3d at 535 (2d Cir.1996); see also United
States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248,
254 (2d Cir.2004). Generally, no one factor is dispositive.
Shannon v. Gen. Elec. Co., 186 F.3d 186, 194 (2d
Cir.1999) (citing Nita v. Conn. Dep’t of Envtl. Prot., 16
F.3d 482, 485 (2d Cir.1994)).

B. Analysis
Weighing all of the above factors, the Court dismisses this
case with prejudice pursuant to Rule 41(b).

1. Duration
The first element of the balancing test, the duration of
plaintiffs failures, requires that the court consider “(1)
whether the failures to prosecute were those of the
plaintiff; and (2) whether these failures were of significant
duration.” Martens v. Thomann, 273 F.3d 159, 180 (2d
Cir.2001) (citing Spencer v. Doe, 139 F.3d 107, 113 (2d
Cir.1998)); see also United States ex rel. Drake, 375 F.3d
at 255. The court must also consider whether any of the
delays are attributable to the defendant. See Jackson v.
City of New York, 22 F.3d 71, 75 (2d Cir.1994).
Here, while the various failures to follow court orders can
be attributed to both parties, plaintiff is primarily to blame
for the fact that this case has not advanced in more than
six months. See Nolan I, 2008 WL 650387, at *5. This
period of delay is particularly significant given that,
during that time, the action did not merely lie dormant,
but the parties ignored and disobeyed multiple court
orders designed to move the case along. The six-month
period at issue here thus is of sufficient duration to weigh
in favor of dismissal. See Lyell Theatre Corp., 682 F.2d at
42-43 (noting that Rule 41 dismissal may be warranted

“after merely a matter of months”).

2. Notice
The second element to be considered is whether the
plaintiff was on notice that further delay would result in
dismissal of the case. See Lucas, 84 F.3d at 535 (2d
Cir.1996). The Second Circuit has held that where a court
puts a plaintiff on notice that the court is considering
dismissal, and a plaintiff fails to file a document
explaining the failures and outlining why the action
should not be dismissed, this element has been met. See
Shannon, 186 F .3d at 194-95.
The notice element strongly weighs in favor of dismissal
of this case. Plaintiff was given notice of the Court’s
intent to dismiss the action in Nolan I, which stated three
times that the action would be dismissed in the event of
the plaintiffs failure to comply with its directives. See
Nolan I, 2008 WL 650387, at *1-5. In addition, the OSC
gave both parties an opportunity to submit papers and to
appear in Court to contest dismissal. Plaintiff failed to
submit papers in response to the OSC, or to appear on the
return date, and failed to follow even one of the directives
in Nolan I. Furthermore, the parties had previously been
warned that the Court would consider sanctioning the
parties for failure to comply with Court orders. (See Jan.
2, 2008 Order.) Finally, plaintiff himself appeared at the
January 30, 2008 conference before the Court, and was
informed of the Court’s intention to issue the OSC and
consider dismissing the case absent further action. (See
Jan. 30, 2008 Tr. at 3-5.) Thus, because it is abundantly
clear that the Court gave plaintiff notice of the impending
dismissal of the case, the second element weighs in favor
of dismissal.

3. Prejudice
*4 The third element requires that the Court consider the
prejudice of further delay to the defendant. See Lucas, 84
F.3d at 535 (2d Cir.1996). Where the delay is
unreasonable, prejudice may be presumed as a matter of
law. Shannon, 186 F.3d at 195 (citing Lyell Theatre, 682
F.2d at 43). This is generally 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. However, “in cases
where delay is more moderate or excusable, the need to
show actual prejudice is proportionally greater.” Lyell

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3

Nolan v. Primagency, Inc., Not Reported in F.Supp.2d (2008)
2008 WL 1758644, 70 Fed.R.Serv.3d 397

Theatre, 682 F.2d at 43. “Although a court cannot deny a
plaintiff the right to be heard in the interest of avoiding
docket congestion, where a plaintiff could have avoided
dismissal ‘there can be no claim by plaintiff that [its] due
process rights have been denied.’ “ Jacobs v. County of
Westchester, No. 99 Civ. 4976(WCC), 2008 WL 199469,
at *6 (S.D.N.Y. Jan. 22, 2008) (quoting Europacific Asset
Mgmt. Corp. v. Tradescape Corp., 233 F.R.D. 344, 354
(S.D.N.Y.2005) (alteration in original)).
Defendants’ counsel is to blame for at least some of the
delay in this matter. Because of this, and because only six
months have passed, the Court will not presume
prejudice. While it is demonstrably unreasonable to fail to
comply with court orders for six months, the unreasonable
delay present in other cases in which courts presumed
prejudice is absent here. See Shannon, 186 F.3d at 195
(finding presumption of prejudice because events at issue
in lawsuit had taken place over a decade earlier); Peart v.
City of New York, 992 F.2d 458, 462 (2d Cir.1993) (citing
potential for witness recollection to diminish or witness
unavailability as the reason for a presumption of prejudice
due to unreasonable delay); Dodson, 957 F.Supp. at 470
(S.D.N.Y.1997) (holding that dismissal was appropriate
after a five-year delay because the court can presume that
witnesses’ “memories have faded” when eleven years
have passed since the events giving rise to plaintiffs cause
of action). Thus, the Court finds that the prejudice factor
does not weigh in favor of dismissal.

4. Balancing the Court’s and Plaintiff’s Interests
With respect to the fourth element, the balancing of the
court’s interests and the plaintiff’s right to a fair
adjudication on the merits, the Second Circuit has
instructed 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, 84 F.3d at 535-36. As such, the plaintiff’s failure
to prosecute must be “vexatious and burdensome” on the
Court’s ability to manage its docket, as opposed to being
merely “silent and unobtrusive.” LeSane, 239 F.3d at 210.
Plaintiff’s right to an opportunity to be heard is not taken
lightly by this Court. However, this action has been
pending for over a year, and there has been no significant
progress of any kind for six months. During that time, this
Court has issued six separate orders relating to the parties’
various failures, and held three conferences relating to the
parties’ inability to advance the case. While the Court has
less knowledge of what transpired prior to this action
being reassigned to the undersigned on September 4,

2007, the parties’ ongoing failure to comply with orders
of this Court has taken up a grossly disproportionate
amount of the Court’s time since October, 2007.
Plaintiff’s duty to prosecute the case diligently “is
designed to achieve ‘fairness to other litigants, whether in
the same case or merely in the same court as competitors
for scarce judicial resources....’ “ Dodson, 957 F.Supp. at
470 (quoting Chira v. Lockheed Aircraft Corp., 634 F.2d
664, 668 (2d Cir.1980)). As such, the Court finds that
plaintiff’s failures have been “vexatious and burdensome”
and accordingly, the fourth element weighs in favor of
dismissal.

5. Efficacy of Lesser Sanctions
*5 Finally, the fifth element looks to whether the Court
has adequately considered remedies other than dismissal.
“It is clear that a district judge should employ the remedy
of dismissal ‘only when he is sure of the impotence of
lesser sanctions.’ “ Dodson, 86 F.3d at 39 (citing Chira,
634 F.2d at 665). “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....” Id. at 40.
“[T]he 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 lawyer.” Id. However, this Court must be
guided by the Supreme Court’s pronouncement that
“[t]here is certainly no merit to the contention that
dismissal of petitioner’s claim because of his counsel’s
unexcused conduct imposes an unjust penalty on the
client. Petitioner voluntarily chose this attorney as his
representative in the action, and he cannot now avoid the
consequences of the acts or omissions of this freely
selected agent.” Link, 370 U.S. at 633-34.
Although it is without question that plaintiff’s failures in
this case are solely attributable to his counsel, Mr.
Piccone, plaintiff himself was on notice of Mr. Piccone’s
shortcomings up to and including his failure to appear on
January 30, 2008. Nevertheless, as of the April 8, 2008
telephone conference, Mr. Piccone was still the counsel of
record in this matter. Plaintiff voluntarily chose Mr.
Piccone to represent him in this action. Thus, while
dismissal is an unfortunate result for plaintiff, it is not an
unjust result. See Link, 370 U.S. at 633-34.
As to the consideration of lesser sanctions, this factor
clearly weighs in favor of dismissal. As reflected in the
record of this case, the Court has given plaintiff numerous

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4

Nolan v. Primagency, Inc., Not Reported in F.Supp.2d (2008)
2008 WL 1758644, 70 Fed.R.Serv.3d 397

opportunities to be heard in relation to his failure to
follow court orders. Prior admonishments and warnings
have been wholly ineffective. Indeed, the Court
previously issued a civil contempt sanction against Mr.
Piccone in the amount of $750.00 in order to induce his
compliance with future orders. See Nolan I, 2008 WL
650387 at *3. As of the date of this Order, that sanction
has not been paid. Moreover, as noted above, counsel has
not complied with any of the directives contained in
Nolan I. As such, and based on the record in this case, the
Court is convinced that lesser sanctions will have no
impact on plaintiff’s, or his counsel’s, conduct or
compliance with this court’s orders.
As four of the five elements favor dismissal under Rule
41(b), the Court finds that dismissal is appropriate, and
this case is accordingly dismissed with prejudice pursuant
to Rule 41(b). While the Court is sympathetic to the
personal issues encountered by plaintiffs counsel over the
past few months, as alluded to by Mr. Piccone during the
April 8, 2008 telephone conference, that fact does not
alleviate Mr. Piccone’s duties to the Court and his client.
A simple letter to the Court explaining his plight could
have resulted in the extension of deadlines, a short stay of
the action, or other relief, including obtaining new
counsel for plaintiff. Mr. Piccone has made no showing
that he was unable to contact the Court during the time
that he was preoccupied with personal matters. The Court
recognizes that dismissal of this case with prejudice may
have the result of denying plaintiff any relief that he

might have obtained on his claims. However, plaintiff is
responsible for his choice of counsel, and did not choose
at any point, even after being advised of Mr. Piccone’s
failures, to replace him as counsel. See Lastra v. Weil,
Gotshal & Manges LLP, No. 03 Civ. 8756(RJH)(RLE),
2005 WL 551996, at *4 (S.D.N.Y. Mar. 8, 2005)
(“Claims by a litigant that he should be excused from his
attorney’s actions because of alleged fraudulent conduct
and disobeyance of the litigant’s orders may give rise to a
claim for malpractice, but does not constitute an
extraordinary circumstance or excusable neglect.”)

III. CONCLUSION
*6 For the foregoing reasons, this action is DISMISSED
with prejudice pursuant to Rule 41(b). The Clerk of the
Court is respectfully directed to close this case.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2008 WL 1758644, 70
Fed.R.Serv.3d 397

Footnotes
1

Mr. Piccone asserted on the record at the April 8, 2008 conference that he had in fact filed the amended complaint in
November, 2007, and that he could submit proof demonstrating this fact. (See Transcript of April 8, 2008 Conference
(“Apr. 8 Tr.”) at 5-7.) While it may be true that Mr. Piccone did technically file a hard copy of the amended complaint in
this matter, the amended complaint was never properly filed on ECF, because he never emailed the amended
complaint to case_openings@nysd . uscourts.gov, pursuant to ECF procedure. As a result of his failure to do so, the
amended complaint is not available on ECF. This is exactly what the Court sought to ameliorate when it ordered Mr.
Piccone to “properly file” the amended complaint on ECF. See Nolan I, 2008 WL 650387, at *3. In any event,
regardless of the extent of Mr. Piccone’s non-compliance with this portion of Nolan I, this dismissal is based on
plaintiff’s counsel’s failure to follow numerous other directives, as outlined in this and prior orders.

2

A letter from Mr. Flaum addressed to the Court and dated April 7, 2008 was received in Chambers on April 9, 2008,
and contained a check payable to the Clerk of the Court in the amount of $200.00. That check was tendered to the
cashier in the Clerk’s office on April 9, 2008.

End of Document

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5