Dexter et al v. The City of Syracuse, New York et al

Filing 36

DECISION AND ORDER adopting 31 Report and Recommendations. Pltfs' complaint is sua sponte dismissed, without prejudice, for failure to prosecute and as abandoned. Signed by Senior Judge Thomas J. McAvoy on 1/20/15. [Served by cert. mail.] (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
ALISHA DEXTER and LEMORRIS
M. DEXTER, II,
Plaintiffs,
Civil Action No.
5:14-CV-0363 (TJM/DEP)

v.
OFFICER A. MAHAR, et al.,
Defendant.
________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This action was referred to the Hon. David E. Peebles, United States Magistrate

Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule
72.3(c). No objections to Magistrate Judge Peebles’s Report and Recommendation [dkt. #
31] have been filed, and the time to do so has expired.1
II.

DISCUSSION
Magistrate Judge Peebles indicates in his report:
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The Report Recommendation was served on Plaintiffs at their last known address, P.O. Box 197
Syracuse, NY, but both were returned as undeliverable. Every litigant is required to keep the Court advised of
his or her address so that documents and decisions may be served upon them by mail. See Local Rules of
the United States District Court for the Northern District of New York, 10.1(b), 41. (2) & (b). Failure to do so
can greatly delay proceedings and, therefore, can be construed as an abandonment of the action.
Under the circumstances, the Court deems that Plaintiffs intentionally failed to file any objections and
have abandoned this action.

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Although this case is in its formative procedural stages, plaintiffs have already
demonstrated an unacceptable lack of cooperation with defendants' counsel in
formulating a joint civil case management plan in accordance with this court's
directives and Northern District of New York General Order No. 25, and have failed
to appear in person as directed by the court on two occasions. Based upon that
conduct, I recommend plaintiffs' complaint be dismissed for failure to prosecute
pursuant to Rule 41 of the Federal Rules of Civil Procedure.
Rep. Rec. p. 2.
Magistrate Judge Peebles further writes:
Through their actions, plaintiffs have demonstrated a repeated failure to cooperate
with both defendants' counsel and the court so that this action can be f airly,
efficiently, and timely adjudicated on its merits. Based upon their failure to comply
with the court's orders, in particular the order that they appear and show cause why
this action should not be dismissed, I conclude that dismissal of plaintiffs' complaint
is warranted. Accordingly, it is hereby respectfully
RECOMMENDED that plaintiffs' complaint be sua sponte DISMISSED, with
prejudice, based upon their failure to prosecute and to appear as required by court
order.
Id. p. 10.
After examining the record, this Court has determined that the Report and
Recommendation is not subject to attack for plain error or manifest injustice. However,
because copies of the Order to Show Cause, which were served on plaintiffs at their last
know address, were returned as undeliverable after the Report and Recommendation was
issued, the Court will conclude that plaintiffs abandoned this action, see fn. 1, supra, as
opposed to willfully disobeyed a court order. Accordingly, the dismissal will be without
prejudice.
III.

CONCLUSION
For the reasons stated here and the Report and Recom mendation, the Court

ADOPTS in substantial part the Report and Recommendation [dkt. # 31]. Plaintiffs’
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complaint is sua sponte DISMISSED, without prejudice, for failure to prosecute and
as abandoned.

IT IS SO ORDERED.

Dated:January 20, 2015

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