Willet v. City of Buffalo et al

Filing 40

DECISION AND ORDER: For the reasons in the attached Decision and Order, the Court dismisses this case for failure to prosecute. The Clerk of the Court shall take all steps necessary to close this case. SO ORDERED. Signed by Hon. Richard J. Arcara on 1/23/17. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOHN T. WILLET,
Plaintiff,

v.

15-CV-330-A
DECISION AND ORDER

CITY OF BUFFALO,
BUFFALO POLICE DEPARTMENT,
JOHN CIRULLI, Individually and in his
former Official Capacity, P.O. NICHOLAS
MILITELLO, LT. JEFFREY RINALDO and
JOHN/JANE DOE OFFICERS,
Defendants.

On December 2, 2016, the Court ordered the Plaintiff to respond, on or before
December 16, 2016, to the Defendants’ objections to Magistrate Judge Roemer’s
Report and Recommendation (Dkt. No. 39). The Court further advised the Plaintiff that
his failure to comply with the Court’s order may result in dismissal pursuant to Local
Rule of Civil Procedure 41(b). Specifically, the Court noted, “the record in this case
shows a pattern of inactivity by the Plaintiff, as well as a repeated failure to comply with
Court orders.” For instance, the City Defendants claim that the Plaintiff failed to take
any discovery in this case and that he likewise failed to provide the Defendants with
initial disclosures.
Further, the Plaintiff failed to timely oppose the City Defendants’ motion for
summary judgment. Instead, as Judge Roemer noted, the Plaintiff “fil[ed] opposition
papers only after the Court entered an order to show cause cautioning that the case

may be dismissed for failure to prosecute.” Dkt. No. 33 at 6 n.6. And even then, the
Plaintiff filed opposition papers only after making an untimely request for an extension
of time to do so. Finally, the Plaintiff failed to appear for oral argument before Judge
Roemer on the City Defendants’ motion for summary judgment. Id. at 5. Consistent
with his conduct before Judge Roemer, the Plaintiff has failed to comply with the
Court’s order directing him to file an opposition to the City Defendants’ objections.
Federal Rule of Civil Procedure 41(b), on which Local Civil Rule 41(b) is
modeled, allows a district court to dismiss a case “[i]f the plaintiff fails to prosecute or
comply with [the Rules of Civil Procedure] or a court order.” Courts consider a number
of factors when deciding whether to dismiss a case for failure to prosecute under Rule
41(b). Those factors include whether:
(1) the plaintiff's 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 further delay;
(4) the need to alleviate court calendar congestion was carefully balanced
against plaintiff's right to an opportunity for a day in court; and
(5) the trial court adequately assessed the efficacy of lesser sanctions.
Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009). After carefully considering each of
these factors, the Court finds that dismissal is warranted.
The first factor “is not relevant where, as here, [the plaintiff] failed to comply with
[multiple] court orders and otherwise demonstrated a lack of respect for the court.”
Peart v. City of New York, 992 F.2d 458, 461 (2d Cir. 1993).
The second factor supports dismissal: the Court warned the Plaintiff that failure

to respond to the City Defendants’ objections may result in dismissal (Dkt. No. 39), as
did Judge Roemer’s Order to Show Cause. Dkt. No. 19. Despite those warnings, the
Plaintiff’s pattern of inattention to this case nonetheless continued.
The third factor is neutral. Because witnesses’ memories fade with time, the
Defendants would likely be at least marginally prejudiced by the delay that ensues each
time the Plaintiff fails to comply with a Court order. At the same time, however, the
Defendants obviously benefit from appearing before the Court without having to rebut
the Plaintiff’s arguments.
The fourth factor tips heavily in the Defendants’ favor. This matter has not been
scheduled for trial, nor has it been scheduled for oral argument before this Court. It
has, however, needlessly wasted judicial resources. Judge Roemer, as noted, held oral
argument on the City Defendants’ motion for summary judgment; the Plaintiff, however,
did not attend. Moreover, Judge Roemer prepared a thorough Report and
Recommendation which recommends granting in part and denying in part the City
Defendants’ motion for summary judgment. The Plaintiff, however, has not bothered to
oppose the City Defendants’ objections. This conduct, together with the Plaintiff’s
failure to take discovery, strongly suggests that he no longer wishes to have his day in
court, despite the Court making every effort to accommodate the Plaintiff, and despite
the not-insignificant expenditure of judicial resources in doing so. Put differently,
“[b]ecause [the Plaintiff] has made no effort to comply with the Court’s directives or to
prosecute his action, it would be unfair to the numerous other litigants who await the
attention of this Court to permit [the Plaintiff’s] suit to remain on the docket.” Feurtado
v. City of New York, 225 F.R.D. 474, 480 (S.D.N.Y. 2004). The fourth factor therefore

weighs heavily in the Defendants’ favor.
Finally, the Court recognizes that dismissal is a harsh sanction, but it appears
that no lesser sanction would be effective. A lesser sanction, such as a fine or payment
of attorneys’ fees, might compensate the Defendants for the cost they have incurred in
defending a lawsuit that the Plaintiff appears to not want to pursue. But given the
Plaintiff’s consistent inattention to this case, a lesser sanction would ultimately
accomplish very little.
Instead, a sanction short of dismissal would only needlessly expend the
Defendants’ and the Court’s time, as well as the Defendants’ money. If the Court
adopted Judge Roemer’s Report and Recommendation in its entirety, this case would
be ready for trial on a number of claims. But given the Plaintiff’s failure to take any
discovery, as well as his failure to respond to a number of Court orders, the Court has
no confidence that a trial would actually go forward without significant hand-holding or
that, if a trial did go forward, the Defendants would not ultimately be entitled to a
directed verdict. Under these circumstances, it would be unjust to require the
Defendants to continue to pay to defend this case–particularly at trial–when the Plaintiff
has consistently disregarded opportunities to move forward with his claims.
This, after carefully considering the factors discussed above, and after reviewing
the record as a whole, the Court sets aside the Report and Recommendation. The
Court instead dismisses this case for failure to prosecute. The Clerk of the Court shall
take all steps necessary to close this case.

IT IS SO ORDERED.
__s/Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: January 23, 2017