Mahoney v. The City of New York et al

Filing 26

MEMORANDUM AND ORDER granting 23 Motion to Dismiss for Lack of Prosecution. For the reasons stated herein, the motion to dismiss (Docket No. 23) is granted. The Clerk shall enter judgment for the defendant. Counsel for defendant is directed to sup ply plaintiff with copies of all reported decisions cited herein. 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. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge P. Kevin Castel on 9/30/2013) (ja)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _ _ _ _ _ _ _ 1
DATE FILED: {a

-1-/3

ANTHONY MAHONEY,
Plaintiff,
-against-

12 Civ. 6717 (PKC) (KNF)
MEMORANDUM
AND ORDER

THE CITY OF NEW YORK, ET AL.,
Defendants.

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P. KEVIN CASTEL, District Judge:
Despite ample time and clear warning of the consequences, plaintiff, who is
proceeding pro se, has failed to appear at two court-ordered initial pretrial conferences.
Defendant has moved to dismiss for failure to prosecute, pursuant to Rule 41(b), Fed. R. Civ. P.,
and plaintiff has not responded to the motion. For the reasons stated below, the motion is
granted.
I. BACKGROUND

The initial pretrial conference in this case was held on June 19,2013. At the
conference, counsel to the defendant attended, but the plaintiff did not. (Docket No. 21)
Accordingly, the conference was rescheduled for July 2,2013. At that time, an order was issued
warning plaintiff that failure to attend the rescheduled conference may result in the dismissal of
his complaint. (Id.) The Order was mailed by the Clerk and was not returned as undeliverable.
(Docket No. 24) Plaintiff did not appear at the second conference on July 2, 2013. (Docket No.
25) On August 2,2013, defendant moved to dismiss plaintiffs complaint for failure to
prosecute, pursuant to Rule 41(b), Fed. R. Civ. P. (Docket No. 23)

II. ANALYSIS

"If the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil
Procedure] or a court order, a defendant may move to dismiss the action or any claim against it."
Rule 41(b), Fed. R. Civ. P. Dismissal under Rule 41(b), however, is "a 'harsh remedy' that
should 'be utilized only in extreme situations.'" Lewis v. Rawson, 564 F.3d 569, 575-76 (2d Cir.
2009) (quoting Minnette v. Time Warner, 997 F.2d 1023,1027 (2d Cir. 1993)). Furthennore,
where the failure to prosecute is by a pro se litigant, "[d]istrict courts should be especially
hesitant to dismiss for procedural deficiencies" and should only dismiss "when the circumstances
are sufficiently extreme." Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).
In weighing dismissal as a remedy, the Court should consider whether: "(1) the
plaintiffs 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
ftnther delay; (4) the need to alleviate court calendar congestion ... carefully balanced against
plaintiffs right to an opportunity for a day in court; and (5) ... the efficacy oflesser sanctions."
United States ex reI. Drake v. Norden Sys" Inc., 375 F.3d 248, 254 (2d Cir. 2004). "[N]one of
the five factors is separately dispositive .... " LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d
206, 210 (2d Cir. 2001). The Court considers each factor in tum.
1. Delay

Plaintifffailed to appear at the initial prehial conference. He then failed to
comply with Magistrate Judge Fox's Order, dated June 20, 2013, which required plaintiff to
appear at a second, rescheduled conference. (Docket No. 21; Docket No. 25) Plaintiffs
unexplained and, therefore, unjustified absence has delayed the course oflitigation because the

Magistrate Judge is unable to fashion a discovery schedule tailored to the needs of the case. See,

M, Edwards v. Horn, No. 10 Civ. 6194 (RJS) (JLC), 2012 WL 1292672, at *2 (S.D.N.Y. Apr.
13,2012) (noting that multiple failures to attend a pretrial conference resulted in delays),
adopted, 2012 WL 1592196 (S.D.N.Y. May 4,2012). The record makes plain that plaintiff has
done little, if anything to advance this litigation since the time of its filing over one year ago.
The considerable delay caused by plaintiff weighs in favor of dismissal.
2. Notice
The Magistrate Judge's June 20,2013 Order expressly warned Mr. Mahoney that
the claims in his complaint may be dismissed without a trial ifhe did not attend the July 2,2013
conference. (Docket No. 21) Plaintiff did not respond. He made no submission to the Court,
nor did he take other curative action.
The Court concludes that plaintiff received meaningful, non-technical notice that
the consequences of his failure to attend the pretrial conference would be that he may be exposed
to sanctions, including the dismissal of his complaint. See Lucas, 84 F.3d at 535 ("A warning to
a pro se litigant must be ... specific before it will constitute a warning for the purpose of this
analysis.").
3. Prejudice to Defendants
Prejudice to defendants from the delay in an action against them for money
damages can be difficult to assess, although it may be presumed when there is an unreasonable
delay. LeSane, 239 F.3d at 210. However, prejudice is less likely when there is no indication
that evidence may be lost or discovery would be made more difficult as a consequence of the
delay. See Romandette v. Weetabix Co., 807 F.2d 309, 312 (2d Cir. 1986). Here, there is no
indication in the record that plaintiff s delay caused prejudice to the defendant.

Based upon the foregoing, the COUlt concludes that this factor weighs slightly in
favor of dismissal.
4. Need to Alleviate Calendar Congestion Balanced with Plaintiffs Rights
Plaintiff has a right to his day in COUlt. That right is qualified by his obligation to
comply with the Federal Rules of Civil Procedure and lawful Court orders. The Court notes that
"[t]here must be compelling evidence of an extreme effect on COUlt congestion before a litigant's
right to be heard is subrogated to the convenience of the court." Lucas, 84 F.3d at 535-36.
Compliance with the particular Order at issue here is probably not necessary to "alleviate court
calendar congestion .... " Drake, 375 F.3d at 254. But, noncompliance with COUlt orders
undermines the ability of the Court to manage its docket and dispense justice to all litigants in an
expeditious manner. Further, the Magistrate Judge's June 19, 2013 Order expressly provided
plaintiff additional oppOltunity to appear at the pretrial conference. See Ruzsa v. Rubenstein &
Sendy Att'ys at Law, 520 F.3d, 177-78 (2d Cir. 2008) ("[B]y delaying [sua sponte] dismissal for
twenty days and thereby affording Ruzsa ample time to inform the COUlt that he stood ready to
press his claims, 'the need to alleviate court calendar congestion was carefully balanced against
plaintiff's right to an opportunity for a day in court. "'). Nevertheless, in the overall management
of its docket, the presence or absence ofthis action or the additional work that plaintiffs failure
has or would entail would have an immaterial impact on "calendar congestion." Because of
plaintiffs non-compliance and inaction, the case would simply languish. Its continued presence
on the docket, if and to the extent known, would promote disrespect for the Court's case
management anthority.

5. Efficacy of Lesser Sanctions
The COUlt has considered the efficacy of sanctions less than dismissal and has
concluded that they are inadequate. The plaintiff was expressly wamed that the consequence of
his failure to respond to the motion to dismiss for failure to prosecute may be dismissal. There is
no reason to believe that a lesser sanction would be effective in this particular case, where
substantially all communications to plaintiff from the Magistrate Judge, as well as counsel for
the defense, have gone ignored. See id. at 178 (considering plaintiffs failure to respond to court
notice threatening dismissal). Tln·oughout this litigation, plaintiff had ample OPPOItUnity to
appear at the scheduled pretrial conferences, or object to the Magistrate Judge's scheduling
orders. Instead, plaintiff did not act.
The COUlt affords plaintiff special consideration as a pro se litigant. But a
plaintiffs pro se status should not explain or excuse disregard for or abandonment of his own
lawsuit after the initial filing and service of process. Of course, in certain cases it may be
appropriate for the COUlt to overlook a pro se's failure to substantially comply with court orders
or the Federal Rules of Civil Procedure. Here, plaintiffs noncompliance strongly suggests
abandonment ofthe action.
CONCLUSION
For the reasons stated herein, the motion to dismiss (Docket No. 23) is granted.
The Clerk shall enter judgment for the defendant. Counsel for defendant is directed to supply
plaintiff with copies of all umeported decisions cited herein.

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. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

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Dated: New York, New York
September 30, 2013

P. Kevin Castel
United States District Judge