Cole-Hoover v. United States of America
DECISION AND ORDER GRANTING Defendant's 76 Motion to Dismiss; DISMISSING this case pursuant to Rules 41(b) and 37(b) of the Federal Rules of Civil Procedure; DIRECTING the Clerk of Court to CLOSE this case. Signed by William M. Skretny, United States District Judge on 4/21/2017. (MEAL) Copy mailed to Plaintiff. - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
As Administratrix of the Estate of David Cole,
DECISION AND ORDER
UNITED STATES OF AMERICA,
In this action, pro se Plaintiff Gwendolyn Cole-Hoover, as administratrix of her
brother’s estate, asserts medical-malpractice claims against the United States under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2679(a). Plaintiff alleges that the
Veterans Administration Hospital in Manhattan, N.Y., was negligent in the care and
treatment of her brother, David Cole, and that such treatment resulted in his death.
Presently before this Court is Defendant’s Motion to Dismiss under Rule 41(b) of the
Federal Rules of Civil Procedure for failure to prosecute, and under Rule 37(b) for failure
to comply with court orders. For the reasons stated below, Defendant’s motion is granted
on both grounds.
Plaintiff filed this action on June 4, 2014. (Docket No. 1.) At that time, she was
represented by counsel. Defendant filed its answer to the complaint on August 8, 2014.
(Docket No. 5.) Counsel litigated the case until December 3, 2015, when Plaintiff’s counsel
moved to withdraw on the basis of difficulty communicating with and gaining the
cooperation of Plaintiff. (Docket No. 27.) On January 14, 2016, the Honorable Leslie G.
Foschio, United States Magistrate Judge, granted Plaintiff’s counsel’s motion to withdraw
and determined that Plaintiff would proceed pro se. (Docket No. 32.)
Plaintiff is an experienced pro se litigator, having pursued at least seven actions in
this district as well as actions in other federal and state courts. (See Declaration of Mary
K. Roach (“Roach Decl.”), ¶¶ 14, 15.). After her attorney withdrew, Plaintiff litigated
discovery issues before Judge Foschio, who presided over all pretrial matters. Plaintiff,
however, did not consistently adhere to Judge Foschio’s directives.
On January 15, 2016, Judge Foschio directed Plaintiff to file a response by February
12, 2016, to a Motion to Compel filed by Defendant. (See Docket No. 33.) Plaintiff
disregarded this directive and never responded to the Defendant’s motion, which Judge
Foschio granted on February 23, 2016. (See Docket No. 36.)
In his February 23, 2016 decision, Judge Foschio ordered Plaintiff to respond to
certain interrogatories and deposition questions. (Id.) Defendant thereafter attempted to
obtain the ordered information and schedule Plaintiff’s further deposition testimony.
Plaintiff, however, never produced the required discovery nor did she communicate with
Defendant to schedule her deposition. (Roach Decl., ¶¶ 23–25.)
Due to Plaintiff’s intransigence, Defendant filed a Second Motion to Compel on April
1, 2016, again seeking to gain Plaintiff’s compliance with its discovery demands. (See
Docket No. 37.) Judge Foschio directed Plaintiff to respond to Defendant’s motion by April
15, 2016. (Docket No. 40.) Plaintiff failed to respond as directed.
On June 21, 2016, Judge Foschio granted Defendant’s Second Motion to Compel
and directed Plaintiff to comply with the discovery demands at issue no later than June 30,
2016. (Docket No. 52.) Judge Foschio also specifically warned Plaintiff, in capital letters,
that “failure to comply with this decision and order may subject Plaintiff to sanctions
pursuant to Fed.R.Civ.P. 37(b)(2)(A) and 37(d)(1)(A), including dismissal of this action.”
Following Judge Foschio’s June 21, 2016 Order, Defendant scheduled Plaintiff’s
deposition and sent her notice of the same. (Roach Decl., ¶ 30.) Plaintiff did not advise
Defendant that the scheduled deposition posed a conflict for her or otherwise communicate
difficulty with the date. (Id. at ¶ 31.) Plaintiff nonetheless failed to appear for her
deposition nor did she provide discovery responses by the deadline set by Judge Foschio.
(Id. at ¶¶ 33, 34.)
On July 5, 2016, Defendant filed yet a Third Motion to Compel, this one seeking an
Order requiring Plaintiff to make her expert disclosures, which were due May 2, 2016.
(Docket No. 54; Roach Decl., ¶ 38.) Defendant also filed a Motion for Sanctions. (Docket
No. 56.) Judge Foschio directed Plaintiff to respond to both motions by August 4, 2016,
and again warned her that “failure to respond to this order may result in sanctions including
dismissal of this action.” (Docket No. 59.) Plaintiff failed to respond as directed and failed
to appear at oral argument. (Docket No. 61.)
On October 17, 2016, Judge Foschio granted Defendant’s Third Motion to Compel
and directed that Plaintiff pay the costs of the court reporter retained by Defendant for
Plaintiff’s deposition. (Docket Nos. 70, 71.) In his decision, Judge Foschio noted Plaintiff’s
repeated failures to comply with court orders and again warned her that “failure to comply
with the court’s Order may result in . . . this action be[ing] dismissed with prejudice.”
(Docket Nos. 70, 71.) Plaintiff thereafter failed to provide the discovery ordered by Judge
Foschio and failed to pay the costs of the court reporter as directed. (Roach Decl., ¶¶
Plaintiff also failed to appear for her rescheduled deposition, causing
Defendant to again incur court-reporter expenses. (Id. at ¶¶ 59–61.)
On October 20, 2016, Defendant filed a Motion for Modification of the Fifth
Amended Scheduling Order. (Docket No. 72.) Judge Foschio directed Plaintiff to respond
to Defendant’s motion by November 4, 2016. (Docket No. 73.) Plaintiff failed to respond
On December 6, 2016, Defendant filed the instant Motion to Dismiss Plaintiff’s
complaint due to her failure to prosecute and comply with discovery demands and court
orders. (Docket No. 76.) This Court thereafter set three separate deadlines for Plaintiff’s
response. (Docket Nos. 80, 82, 86.) The final two orders specifically warned Plaintiff “that
her failure to file and serve a response to Defendant’s motion as directed may result in this
Court granting Defendant’s motion as uncontested pursuant to Local Rule 7(a)(2)(A) or
dismissing Plaintiff’s case for failure to prosecute.” (Docket Nos. 82, 86.) Despite this
warning, and the many before, Plaintiff failed to file her response as directed.
Dismissal under Rule 41(b) For Failure to Prosecute
Dismissal of this case is warranted pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure, which provides that:
If 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 merits.
FED. R. CIV. P. 41 (b).
Rule 41 (b) does not define failure to prosecute. But the Second Circuit has stated
that failure to prosecute “can evidence itself either in an action lying dormant with no
significant activity to move it or in a pattern of dilatory tactics.” Lyell Theatre Corp. v.
Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). Dismissal pursuant to Rule 41 (b) falls within
the court’s discretion. See id. at 42-43 (“the scope of review of an order of dismissal is
confined solely to whether the trial court has exercised its inherent power to manage its
affairs within the permissible range of its discretion”). It is, however, “a harsh remedy to
be utilized only in extreme situations.” Harding v. Fed. Reserve Bank, 707 F.2d 46, 50 (2d
Cir. 1983) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972) (per
curiam); see also Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980)
(discussing the sanction of dismissal for failure to prosecute as “pungent, rarely used, and
conclusive”). This is particularly true in cases involving pro se plaintiffs, where dismissal
for failure to prosecute should be granted only “when the circumstances are sufficiently
extreme.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citing Nita v. Connecticut Dep’t
of Envtl. Prot., 16 F.3d 482, 487 (2d Cir. 1994)).
The following factors, none of which are dispositive, must be considered in
determining whether dismissal for failure to prosecute is warranted: (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, 255 (2d Cir. 2004); Nita, 16 F.3d at 485; Feurtado v. City of New York, 225
F.R.D. 474, 477 (S.D.N.Y. 2004) (quoting Jackson v. City of New York, 22 F.3d 71, 74 (2d
Cir. 1994)). In the present case, these factors weigh in favor of dismissal.
Duration of Failures
The relevant inquiry on this factor is twofold: (1) whether the plaintiff is at fault for
failing to prosecute, and (2) whether the plaintiff’s failures were of significant duration. See
Norden Sys., 375 F.3d at 255.
Here, Plaintiff is solely at fault for failing to prosecute: she has been
uncommunicative; has failed to comply with court orders; has failed to appear as directed;
has failed to pay a court-ordered sanction; and has failed to conduct discovery.
With respect to duration, Plaintiff’s inaction has caused unnecessary delay of more
than 16 months, since Defendant’s first motion to compel. (Docket No. 29.) This is a
failure of significant duration. See Antonios A. Alevizopoulos & Assoc., Inc. v. Comcast
Int’l Holdings, Inc., No. 99 Civ. 9311, 2000 WL 1677984, at *2 (S.D.N.Y. Nov. 8, 2000)
(finding that delay of four months warranted dismissal).
Thus, this Court finds that this factor weighs in favor of dismissal—all delay is
attributable to Plaintiff and is of significant duration.
Notice of Dismissal
The Second Circuit requires that a plaintiff receive adequate notice that her case
could be dismissed due to inaction. See Martens v. Thomann, 273 F.3d 159, 180-81 (2d
Cir. 2001). Here, there can be no question that Plaintiff had adequate notice: she received
notice that her case could be dismissed for failure to prosecute or failure to comply with
court orders on January 15, April 4 and 12, June 21, July 12, and October 17, 2016, and
January 11 and February 28, 2017. (Docket Nos. 33, 40, 42, 52, 59, 70, 71, 82, 86.)
Because Plaintiff was on repeated notice that her case could be dismissed, this factor
strongly weighs in favor of dismissal. See Lyell Theatre, 682 F.2d at 42-43 (Rule 41(b)
dismissal upheld where plaintiff was warned that dismissal for failure to prosecute was
Prejudice to Defendant
The third factor requires an inquiry into whether the defendant has been prejudiced
by the plaintiff’s inaction. “Prejudice to defendants resulting from unreasonable delay may
be presumed, but in cases where delay is more moderate or excusable, the need to show
actual prejudice is proportionately greater.” Lyell Theatre, 682 F.2d at 43 (citations
omitted). In Lyell Theatre, the court presumed prejudice where the plaintiff on numerous
occasions failed to file documents as directed by the court. Id. at 39-40, 43. Similar to the
present case, the plaintiff in Lyell Theatre continued to ignore the court’s orders even after
he had been warned that he was risking dismissal. Id. at 39. Under Lyell Theatre, the
prejudice to Defendants in this case may be presumed. Thus, this factor weighs in favor
Balance between Calendar Congestion and Due Process Rights
The fourth factor requires the court to consider the balance between calendar
congestion and the plaintiff’s right to present his or her case. See Norden Sys., 375 F.3d
at 257. In this regard, “‘a court must not let its zeal for a tidy calendar overcome its duty
to justice.’” Feurtado, 225 F.R.D. at 480 (quoting Davis v. United Fruit Co., 402 F.2d 328,
331 (2d Cir. 1968)). Plaintiff’s inaction has caused Judge Foschio and this Court to
prepare and file several case-management and scheduling orders, and to schedule and
conduct several court proceedings. Although this expenditure of judicial resources is
wasteful, this Court cannot conclude that the overall effect on docket congestion has been
As for Due Process, this Court notes that Plaintiff has been afforded her due
process rights in that she has been provided numerous opportunities to comply with the
orders of this court. Thus, Plaintiff’s own failure to litigate this matter is not a denial of due
process. See Dodson v. Runyon, 957 F.Supp. 465, 470 (S.D.N.Y. 1997) (“any claim that
plaintiff’s due process rights were violated thus cannot prevail because the delay and
resultant dismissal of plaintiff’s case are of his own making”); cf. Feurtado, 225 F.R.D. at
480 (repeated failure to comply with court orders diminishes a plaintiff’s right to present his
claims). Accordingly, this factor also weighs in favor of dismissal.
Consideration of Lesser Sanctions
Finally, the Second Circuit requires district courts to consider whether lesser
sanctions would sufficiently remedy any prejudice resulting from the plaintiff’s inaction.
See Norden Sys., 375 F.3d at 257. Upon reviewing the entire record, it is this Court’s
opinion that Plaintiff has no intention of complying with this Court’s Orders or properly
litigating this case. Plaintiff has repeatedly ignored directives by failing to appear in court,
failing to file responses as directed, failing to pay a court-ordered sanction, and failing to
meet discovery obligations. Given the history of this case, this Court finds that any
sanction short of dismissal would be ineffective. See Smith v. Human Res. Admin. of New
York City, No. 91 CIV. 2295 (MGC), 2000 WL 307367, at *3 (S.D.N.Y. Mar. 24, 2000)
(finding lesser sanctions inappropriate where past court orders did not motivate the plaintiff
to move the case forward); Alevizopoulos, 2000 WL 1677984, at 4 (finding lesser sanctions
inappropriate based on repeated failures to comply with court orders). Thus, this final
factor also weighs in favor of dismissal.
Accordingly, this Court finds that dismissal of this case is warranted under Rule
41(b) for Plaintiff’s failure to prosecute.
Dismissal under Rule 37(b) For Failure to Comply with Discovery Orders
“A district court may impose sanctions when ‘a party . . . fails to obey an order to
provide or permit discovery.’” Burns v. Imagine Films Entm’t, Inc., 164 F.R.D. 594, 598
(W.D.N.Y. 1996) (quoting FED. R. CIV. P. 37(b)). Rule 37 of the Federal Rules of Civil
Procedure, which concerns the discovery obligations of civil litigants, vests district courts
with “broad power” and discretion to impose sanctions, including dismissal, on parties who
fail to adhere to discovery orders. See Friends of Animals, Inc. v. United States Surgical
Corp., 131 F.3d 332, 334 (2d Cir. 1997) (per curiam); see also Jones v. J.C. Penney’s
Dep’t Stores, Inc., 228 F.R.D. 190, 195 (W.D.N.Y. 2005) (identifying dismissal of the action
as an available sanction under Rule 37); JSC Foreign Econ. Ass’n. Technostroyexport v.
Int’l Dev. & Trade Servs., Inc., No. 03 Civ. 5562, 2005 WL 1958361, at *9 (S.D.N.Y. Aug.
Although Rule 37 dismissal is a drastic remedy reserved for only extreme
circumstances, it “is warranted . . . where a party fails to comply with the court’s discovery
orders willfully, in bad faith, or through fault.” John B. Hull, Inc. v. Waterbury Petroleum
Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988) (and cases cited therein); see also
Societe Int’l v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958)
(sanctions under Rule 37 justified where responding party has control over information
requested and fails or refuses production without showing of inability to comply with court’s
For all of the reasons discussed above, this Court finds that dismissal of this case
is also proper under Rule 37(b) for Plaintiff’s repeated failure to comply with Judge
Foschio’s discovery orders.
Plaintiff has failed to diligently prosecute this action and has failed to comply with
orders of this Court. As such, because each of the factors relevant to the Rule 41(b) and
Rule 37(b) analysis favor dismissal, this Court will dismiss this case.
IT HEREBY IS ORDERED, that Defendant’s Motion to Dismiss (Docket No. 76) is
FURTHER, that this case is DISMISSED pursuant to Rules 41(b) and 37(b) of the
Federal Rules of Civil Procedure.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
April 21, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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