Taylor et al v. City of New York et al

Filing 82

REPORT AND RECOMMENDATION re: 47 Amended Complaint filed by Rose M. Taylor, Ronald G. Taylor. For the reasons discussed above, I recommend that this casebe dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Pursuant to 28 U.S.C. § 636 (b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objection shall befiled with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Paul A. Crotty, Room 1350, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. (Objections to R&R due by 6/29/2017.) (Signed by Magistrate Judge James C. Francis on 6/15/2017) Copies Mailed By Chambers. (anc) (Main Document 82 replaced on 6/15/2017) (ras).

rights were violated when members of the New York City Police
Department arrested him without probable cause on two occasions.
Ms. Taylor alleges that her Fourth and Eighth Amendment rights
were

violated

when

members

of

the

New

York

City

Housing

Authority allowed her apartment to become uninhabitable.
defendants

seek

dismissal

of

the

complaint

for

prosecute.

The

failure

to

I recommend that the motion be granted.

Background
It is the procedural history that is relevant here, rather
than

the

substantive

plaintiffs
(Complaint

filed
at

1).

allegations

their
In

original
June

2016,

of

the

complaint
I

ordered

complete discovery by December 30, 2016.
2016 (“6/28/16 Order”) at 1).

plaintiffs.
in
the

March

The
2015.

parties

to

(Order dated June 28,

The parties have yet to complete

discovery, principally because both plaintiffs have failed to
attend depositions despite multiple attempts by the defendants
to depose them.
The plaintiffs’ did not appear for depositions on December
6, 2016, and December 8, 2016.

(Letter of David Ferrari dated

Dec. 22, 2016 (“Ferrari 12/22/16 Letter”) at 2).

Although the

plaintiffs alerted the defendants that they were not going to
attend these depositions, they did not offer alternative dates.
(Ferrari

12/22/16

counsel,

the

Letter

plaintiffs

at

2).

explained
2

According
that

they

to
were

defendants’
“unable

to

comply with their discovery obligations because they have been
inundated

with

seeking

appropriate

Plaintiff

Rose

Taylor.”

(Ferrari

Notwithstanding

Ms.

Taylor’s

medical
12/22/16

purported

treatment
Letter

medical

for

at

2).

treatment,

the

plaintiffs assured the defendants that they would comply with
future discovery requests.

(Ferrari 12/22/16 Letter at 2).

In

light of these assurances, the defendants, rather than moving
for sanctions at that time, agreed to file a joint application
to extend the discovery deadline.
2).

(Ferrari 12/22/16 Letter at

I granted the parties’ request and extended the deadline to

February 28, 2017.

(Order dated Dec. 23, 2017).

The plaintiffs next refused to appear for depositions on
February 15, 2017, and February 16, 2017.

(Letter of David

Ferrari dated Feb. 14, 2017 (“Ferrari 2/14/17 Letter”) at 2).
The plaintiffs stated that they were not going to attend these
depositions unless the defendants agreed to pay for the costs
associated

with

transportation.

their

appearances

--

including

meals

and

(Email of Ronald Taylor dated February 13, 2017

(“Taylor 2/13/17 Email”), attached to Letter of Ronald Taylor
dated February 21, 2017, at 6). 1

In response to the email, the

defendants filed a motion to compel the plaintiffs to appear for

1

Mr. Taylor stated that “unless the City of New York will
make
arrangement
for
my
conveyance
along
with
suitable
appropriate meals I am going to have to withdraw out of
hardship.” (Taylor 2/13/17 Email).
3

their depositions.

(Ferrari 2/14/17 Letter at 2).

I granted

that motion and ordered the plaintiffs to appear for depositions
on February 20, 2017 and February 22, 2017.
15,

2017

(“2/15/17

plaintiffs
result

that

in

complaint.”

Order”)).

“[f]ailure

sanctions,
(2/15/17

In

to

that

comply

including

Order).

Order,

with

possible

Later

(Order dated Feb.

that

I

this

warned
order

dismissal
day,

after

the

shall

of

the

defense

counsel realized that Mr. Taylor’s deposition was scheduled for
a federal holiday, the defendants requested to change the date
of

Mr.

Taylor’s

deposition.

February 15, 2017).

(Letter

of

David

Ferrari

dated

The next day, I granted that application

and ordered Mr. Taylor to appear for his deposition on March 7,
2017 rather than February 22, 2017.
2017 (2/16/17 Order”)).
Taylor

that

(Order dated February 16,

In that Order, I further warned Mr.

“[f]ailure

to

appear

will

result

in

sanctions,

including possibly dismissal of the complaint. (2/16/17 Order).
The

plaintiffs

did

not

appear

for

the

depositions

on

February 22, 2017, and March 7, 2017. (Letter of David Ferrari
dated

March

13,

2017

(Ferrari

“3/13/17

Letter”)

at

2).

In

response, the defendants requested that I issue a report and
recommendation to dismiss this matter with prejudice in response
to the plaintiffs’ failure to comply with Court orders and to
prosecute this action.
alternative,

the

(Ferrari 3/13/17 Letter at 3).

defendants

requested
4

that

I

In the

compel

the

plaintiffs to appear for depositions on pain of dismissal of the
action.

(Ferrari 3/13/17 Letter at 3).

Instead of dismissing

the case, I ordered the plaintiffs to appear for depositions on
March

21,

2017,

and

March

23,

2017.

(Memorandum

Endorsement

dated March 15, 2017 (“3/15/17 Memo Endorsement”) at 3).

In

that Order, I stated that “[s]ince the defendants appear willing
to give the plaintiffs one last chance to avoid dismissal of
this case, I am as well.” (3/15/17 Memo Endorsement at 3).
The plaintiffs did not appear for the depositions on March
21, 2017, and March 23, 2017. (Letter of David Ferrari dated
April 5, 2017 (“Ferrari 4/5/17 Letter”) at 3).

In response, the

defendants renewed their request that I issue a recommendation
that this action be dismissed with prejudice.

(Ferrari 4/5/17

Letter at 3).
Discussion
An action may be dismissed pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure “[i]f the plaintiff fails to
prosecute or to comply with the[ ] rules or a court order.” The
court’s authority to dismiss for failure to prosecute “is vital
to the efficient administration of judicial affairs and provides
meaningful access for other prospective litigants to overcrowded
courts.”

Peterson

v.

Apple

Inc.,

No.

12

Civ.

6467,

2013

WL

3467029, at *8 (S.D.N.Y. July 10, 2013) (quoting Lyell Theatre

5

Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982)).

The

discretion to dismiss under this rule is guided by five factors:
(1) the duration of the plaintiff's failure to comply
with the court 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 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.
Baptiste
curiam)

v.

Sommers,

(quoting

768

Lucas

v.

F.3d

212,

Miles,

84

216

(2d

F.3d

Cir.

532,

2014)

535

(2d

(per
Cir.

1996)). Generally, no single factor is dispositive. Id.
Since dismissal with prejudice is a harsh sanction, a pro
se plaintiff’s action should be dismissed under Rule 41(b) only
if

the

circumstances

are

“sufficiently

extreme.”

Id.

at

217

(quoting LeSane v. Hall’s Security Analyst, Inc., 239 F.3d 206,
209 (2d Cir. 2001)). Furthermore, dismissal must be preceded “by
particular procedural prerequisites,” which include “notice of
the

sanctionable

conduct,

the

standard

by

which

it

will

be

assessed, and an opportunity to be heard.” Mitchell v. Lyons
Professional Services, Inc., 708 F.3d 463, 467 (2d Cir. 2013).
There must be “clear evidence” of the delinquency and “a high
degree of specificity in the factual findings.” Id. (quoting
Mickle v. Morin, 297 F.3d 114, 125-26 (2d Cir. 2002)).

6

A. Delay
“The first factor breaks down into two parts: (1) whether
the failures to prosecute were those of the plaintiff, and (2)
whether these failures were of significant duration.”

United

States ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 255
(2d Cir. 2004).

Each of the plaintiffs has twice “skipped a

scheduled deposition . . . without giving notice . . . despite a
court order instructing [them] to appear.”
531 F. App’x 32, 34 (2d Cir. 2013).
they

could

not

attend

the

Ampudia v. Lloyd,

The plaintiffs claim that

depositions

because,

for

example,

“toxic vapors” (Letter of Ronald G. Taylor dated March 8, 2017,
at 3), “dementia,” and “sleep [] deprivation” (Letter of Ronald
G. Taylor dated Feb. 21, 2017, at 3-4) prevented them from doing
so;

however,

despite

being

these

excuses

are

unsubstantiated.

unrepresented,

Mr.

Taylor

conference in June 2016.

attended

Moreover,
a

pre-trial

The plaintiffs’ failure to prosecute

is therefore not a function of “illness and pro se status,” see
Baptiste, 768 F.3d at 217, but rather appears to result from the
plaintiffs’ “dilatory tactics,” see Ampudia, 531 F. App’x at 34.
The

duration

of

the

plaintiffs’

non-compliance

is

significant because the defendants have been unable to achieve
any meaningful discovery since at least December of 2016 –- over
six months ago –- when the plaintiffs first failed to appear for
depositions.

See

id.

(affirming
7

dismissal

after

failed

depositions caused five-month delay); Brow v. New York City, 391
F.

App’x

935,

936

(2d

Cir.

2010)

(six-month

delay);

Lyell

Theatre, 682 F.2d at 42-43 (delay “may warrant dismissal after
merely a matter of months”); Dinkins v. Ponte, No. 15 Civ. 6304,
2016

WL

4030919,

at

*3

(S.D.N.Y.

July

26,

2016)

(five-month

delay); Toliver v. Okvist, No. 10 Civ. 5354, 2014 WL 2535111, at
*2

(S.D.N.Y.

June

5,

2014)

(five-week

delay

“is

not

warned

them

that

insignificant”).
B. Notice
The

plaintiffs

“[f]ailure
possible

to

received

appear

dismissal

of

shall
the

notice

when

result

in

complaint.”

I

sanctions,
(2/15/17

including

Order);

see

Ampudia, 531 F. App’x at 34 (“[D]ismissals following unheeded
warnings generally do not constitute an abuse of discretion”).
The plaintiffs again received notice when I warned them that
“[f]ailure
possibly

to

appear

dismissal

of

will
the

result

in

complaint.”

sanctions,
(2/16/17

including

Order).

The

plaintiffs received notice yet again when I warned them in March
2017 that they had “one last chance to avoid dismissal of this
case” by appearing for their respective depositions.

(3/15/17

Memo Endorsement at 3); see Baptiste, 768 F.3d at 218 (requiring
“clear guidance” on how to avoid dismissal).

The plaintiffs

received notice a final time “when the defendants submitted the

8

instant

application

seeking

dismissal.”

Toliver,

2014

WL

2535111, at *2.
C. Prejudice
It is presumed that defendants are prejudiced as a matter
of

law

to

the

extent

that

the

delay

inexcusable . . . [and] contumacious.”

was

“lengthy

.

.

.

Drake, 375 F.3d at 256.

Moreover, the defendants here were prejudiced as a matter of
fact.

The conduct of the plaintiffs “prevented [the] defendants

from investigating the claims and increased litigation costs to
[the] defendants, who had to expend resources preparing for the
depositions.”

Ampudia, 531 F. App’x at 34.

The plaintiffs’

conduct also “threatens further, reasonably foreseeable future
harm” because if the plaintiffs “continue unilaterally halting
[their] deposition[s], the defendants are unlikely to be able to
defend

against

these

claims

and

clear

their

names

and

professional reputations given the serious nature of the charges
they face.”

Watkins v. Marchese, No. 13 Civ. 3267, 2015 WL

4605660, at *13 (S.D.N.Y. July 31, 2015).
D. Balancing the Interests of the Court and the Plaintiff
The
impaired

plaintiffs’
“the

failures

efficient

to

attend

administration

of

depositions
judicial

have

affairs,”

Peterson, 2013 WL 3467029, at *8 (quoting Lyell Theater, 682
F.2d

at

42),

though

the

impact

9

of

a

single

case

is

not

substantial. Accordingly, this factor weighs only slightly in
favor of dismissal.
E. Consideration of Lesser Sanctions
Since the defendants cannot adequately prepare for trial
without

deposing

the

plaintiffs,

“[n]o

sanction

short

of

dismissal would be appropriate here.” Toliver, 2014 WL 2535111,
at

*3

(forgoing

lesser

sanctions

because

“in

addition

to

incurring the cost of moving for sanctions, the defendants have
also suffered prejudice to their ability to prepare for trial”).
Moreover,
ignoring

since
the

the

plaintiffs

Court’s

orders

have

and

a

history

discovery

of

willfully

deadlines,

it

is

unlikely that lesser sanctions would be effective.

See Watkins,

2015

an

WL

4605660,

at

*15.

This

is

therefore

“extreme

situation[]” that can only be remedied with “the harshest of
sanctions.”

Lewis v. Frayne, 595 F. App’x 35, 38 (2d Cir. 2014)

(quoting Mitchell, 708 F.3d 463 at 467).
Conclusion
For the reasons discussed above, I recommend that this case
be dismissed pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure.

Pursuant to 28 U.S.C. § 636 (b)(1) and Rules

72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the
parties shall have fourteen (14) days to file written objections
to

this

Report

and

Recommendation.

Such

objection

shall

be

filed with the Clerk of the Court, with extra copies delivered
10