Green v. City Of New York, et al

Filing 25

MEMORANDUM OPINION AND ORDER granting 24 Motion to Dismiss for Lack of Prosecution. The defendants August 11, 2017 request for a motion to dismiss under Rule 41(b), Fed. R. Civ. P. is granted. The Clerk of Court shall enter judgment for the defendants and close the case. (Signed by Judge Denise Cote on 8/22/2017)(km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
TROY GREEN,
:
:
Plaintiff,
:
:
-v:
:
THE CITY OF NEW YORK, et al.,
:
:
Defendants.
:
:
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16cv3872 (DLC)
MEMORANDUM OPINION
AND ORDER

DENISE COTE, District Judge:
On August 4, 2017, the plaintiff Troy Green was ordered to
submit his discovery responses and provide a date for his
deposition by August 8.

The plaintiff has failed to do so.

The

defendants request that this case be dismissed for failure to
prosecute pursuant to Rule 41(b), Fed. R. Civ. P.

For the

reasons that follow, this case is dismissed with prejudice.
The complaint in this case was filed on May 24, 2016.

The

gravamen of this action is the plaintiff’s claim that he was
subject to a false arrest on June 28, 2014 when the police,
responding to a 911 call regarding a gun, arrested the plaintiff
for gun possession.

At the scene of the arrest, a civilian

witness identified the plaintiff as the person who possessed the
gun and the police recovered a gun near the plaintiff.
The case is subject to the Section 1983 Plan under Local

Rule 83.10.

Mediation was unsuccessful, and an initial

conference was held on June 2, 2017.

At that conference,

discovery was scheduled to close on August 25, 2017.

The

plaintiff was to provide any affidavit by August 18, 2017 from
the civilian witness addressing his purported identification of
the plaintiff as the person possessing the gun, and the parties
were given until August 25 to address any such affidavit or its
absence.
According to an August 1 letter from the defendants, the
plaintiff failed to provide timely responses to the defendants’
June 2 discovery requests.

On August 2, this Court ordered that

“the plaintiff shall respond to all interrogatories and document
requests by August 4 at noon.”
The plaintiff failed to comply with the August 2 Order.
During a telephone conference on August 4, counsel for the
plaintiff noted that he had not been in contact with his client
since June 9, 2017; the plaintiff had moved home addresses
earlier in the year; and he would not be able to provide an
affidavit from the civilian witness by August 18.

An August 4

Order required the plaintiff to serve his outstanding discovery
responses by August 8 and by August 8 to schedule his
deposition, to occur on or before August 25.
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The Court also

ordered that “should the plaintiff fail to timely serve his
discovery responses or schedule his deposition, the parties may
submit a letter by August 11 about whether this action should be
dismissed with prejudice under Rule 41(b), Fed. R. Civ. P., for
failure to prosecute.”
The defendants’ August 11 Rule 41(b) letter recites the
plaintiff’s failure to comply with the August 4 Order by failing
to provide discovery responses and to schedule his deposition.
The defendants have not received any responses to their June 2
discovery demands and interrogatories.

The plaintiff did not

respond to the August 4 Order or the defendants’ August 11
letter.
Rule 41(b), Fed. R. Civ. P. provides that: “If the
plaintiff fails to prosecute or to comply with [the Federal]
rules or a court order, a defendant may move to dismiss the
action or any claim against it.”

There are five factors to

weigh when deciding a Rule 41(b) motion:
(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.
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Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (citation
omitted).

“No single factor is generally dispositive.”

(citation omitted).

Id.

Dismissal must “be proceeded by particular

procedural prerequisites, including notice of the sanctionable
conduct, the standard by which it will be assessed, and an
opportunity to be heard.”

Id. at 217 (citation omitted).

“[T]he sanction of dismissal with prejudice . . . should be used
only in extreme situations.”

Mitchell v. Lyons Prof’l Servs.,

Inc., 708 F.3d 463, 467 (2d Cir. 2013) (citation omitted).
Dismissal under Rule 41(b) must be premised “upon a finding of
willfulness, bad faith, or reasonably serious fault.”

Id.

(citation omitted).
Dismissal with prejudice is warranted here.

The plaintiff

has not meaningfully communicated with the defendants since the
parties’ initial conference with the Court.

Similarly, the

plaintiff’s last filing with this Court was on April 18.

The

plaintiff has failed to comply with the Court’s August 2 and
August 4 Orders.

The August 4 Order put the plaintiff on notice

that failure to comply could lead to a Rule 41(b) dismissal with
prejudice.

The plaintiff was provided with a fair opportunity

to supply his responses and schedule his deposition, and to
respond to this application for dismissal.
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The case has been pending on the Court’s docket for over a
year.

The defendants have been prejudiced by the plaintiff’s

unwillingness to participate in discovery and communicate
meaningfully.

Further delay will prejudice the defendants

because they will have to expend time and resources on a case
where the plaintiff has refused to participate.

Finally, there

is nothing in the record to suggest that a sanction less serious
than dismissal will resolve the plaintiff’s failure to
cooperate.

The plaintiff, despite his counsel’s attempts, has

made no serious effort to participate in the case, and there is
no basis to find that assessing a financial penalty against the
plaintiff would alleviate the docket management concerns
generated by the plaintiff’s behavior in this case.
Conclusion
The defendants’ August 11, 2017 request for a motion to
dismiss under Rule 41(b), Fed. R. Civ. P. is granted.

The Clerk

of Court shall enter judgment for the defendants and close the
case.
Dated:

New York, New York
August 22, 2017
__________________________________
DENISE COTE
United States District Judge
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