Kiefer v. Commissioner of Social Security
DECISION AND ORDER: The Court hereby ORDERS that Plaintiff's complaint is DISMISSED for his failure to prosecute; and the Court further ORDERS that the Clerk of the Court shall enter judgment in the Commissioner's favor and close this ca se; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 11/21/2017. (Copy served via regular and certified)(ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHOL S. KIEFER,
COMMISSIONER OF SOCIAL SECURITY,
MICHOL S. KIEFER
3283 McConnellsville Road
Blossvale, New York 13308
Plaintiff pro se
SOCIAL SECURITY ADMINISTRATION
OFFICE OF REGIONAL GENERAL COUNSEL
26 Federal Plaza – Room 3904
New York, New York 10278
Attorneys for Defendant
DAVID L. BROWN, ESQ.
Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER
On December 5, 2016, Plaintiff commenced this action seeking review of the
Commissioner's decision denying Plaintiff's application for Disability Insurance Benefits and
Supplemental Security Income. See Dkt. No. 1. On March 20, 2017, the Commissioner filed the
administrative record and the Court directed Plaintiff to file his brief by May 4, 2017. See Dkt.
No. 10.1 On July 18, 2017, the Court sua sponte issued an order extending Plaintiff's time to file
The Court also notes that Plaintiff was also put on notice through General Order #18 that
his brief would be due forty-five (45) days form the filing of the certified transcript of the
administrative proceedings. See N.Y.N.D. Gen. Order #18(C)(1).
his brief to August 25, 2017. See Dkt. No. 12. In that order, Magistrate Judge Stewart warned
Plaintiff that his failure to file a brief could result in consideration of the record with the benefit
of his arguments and could also result in the Court dismissing this action for failure to prosecute
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See id. That order was returned
to the Court as undeliverable. See Dkt. No. 13.
Thereafter, on September 14, 2017, the Court again extended Plaintiff's time to file his
brief to October 13, 2017 and further directed Plaintiff to update his mailing address. See Dkt.
No. 14. In that order, the Court again warned Plaintiff that his failure to file a brief could result in
the dismissal of his action for failure to prosecute. See id. Again, the order was returned to the
Court as undeliverable. See Dkt. No. 15.
Rule 41(b) of the Federal Rules of Civil Procedure provides that,
[i]f the plaintiff fails to prosecute or to comply with these rules or a
court order, a defendant may move to dismiss the action or any
claim against it. Unless the dismissal order states otherwise, a
dismissal under this subdivision (b) and any dismissal not under this
rule – except one for lack of jurisdiction, improper venue, or failure
to join a party under Rule 19 – operates as an adjudication on the
Fed. R. Civ. P. 41(b). Dismissal of an action with prejudice under this rule is a "harsh remedy to
be utilized only in extreme situations." LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d
Cir. 2001) (internal quotation marks and citation omitted). This is particularly true where a
plaintiff is proceeding pro se. See, e.g., Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (holding
that the circuit court will give due deference to the district court's Rule 41(b) dismissal of a pro se
litigant's complaint "only when the circumstances are sufficiently extreme").
Notwithstanding a plaintiff's pro se status, Rule 41(b) gives the district court explicit
authority to dismiss a case where the plaintiff fails to comply with the court's orders or otherwise
fails to prosecute the action "diligently." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d
Cir. 1982). As explained in Lyell Theatre, this authority "is vital to the efficient administration of
judicial affairs and provides meaningful access for other prospective litigants to overcrowded
courts." Id. at 42.
In determining whether dismissal for failure to prosecute is warranted, the district court
must consider the following factors, none of which are dispositive: (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, 254 (2d Cir. 2004) (citations
In the present matter, the Court finds that dismissal for failure to prosecute is warranted.
Plaintiff has not communicated with the Court since the initial filing of his complaint on
December 5, 2016. Further, because Plaintiff failed to update his mailing address as required, the
Court has had no way to communicate with him. Although Plaintiff did not receive the Court's
two most recent warnings that his failure to file a brief could result in dismissal, he was provided
a copy of General Order #18 that placed him on notice that such a failure could result in
dismissal. Although the third and fourth factor only way slightly in favor of dismissal, the Court
finds that no lesser sanction would be appropriate. Accordingly, the Court finds that the first,
second and fifth factors all weigh strongly in favor of dismissal of his action. Courts in this
Circuit have reached the same result when faced with similar facts. See Ortega v. Apfel, 5 Fed.
Appx. 96, 97 (2d Cir. 2001) (holding that the district court did not abuse its discretion in
dismissal social security case where, beyond filing his complaint, the plaintiff took no action to
prosecute his case, failed to respond to three district court orders, and provided no reason for
these failures, and where he received three warnings from the district court that his failure to
prosecute his claims and to comply with the court's orders would result in dismissal); Camacho v.
Commissioner of Soc. Sec., No. 04 Civ. 6686, 2006 WL 278399, *1 (S.D.N.Y. Feb. 1, 2006); see
also Enix v. Commissioner of Soc. Sec., 461 Fed. Appx. 861, 864 (11th Cir. 2012) (affirming the
district court's dismissal of a Social Security appeal due to the plaintiff's failure to file a brief
challenging the ALJ's decision despite two orders to do so); Shields v. Commissioner of Soc. Sec.,
474 Fed. Appx. 857, 858-59 (3rd Cir. 2012) (affirming dismissal of Social Security appeal for
failure to prosecute); Tripp v. Commissioner of Soc. Sec., 471 Fed. Appx. 631, 632 (9th Cir. 2012)
(affirming dismissal for failure to prosecute and failure to comply with court orders); Johnson v.
Astrue, 325 Fed. Appx. 233, 233-34 (4th Cir. 2009) (affirming dismissal of complaint pursuant to
Rule 41(b) for failure to prosecute).
Based on the foregoing, the Court hereby
ORDERS that Plaintiff's complaint is DISMISSED for his failure to prosecute; and the
ORDERS that the Clerk of the Court shall enter judgment in the Commissioner's favor
and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: November 21, 2017
Albany, New York
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