Stephens

Filing 19

REPORT & RECOMMENDATION re 18 Order to Show Cause. It is recommended that the district court dismiss this action with prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute. Objections due within fourteen (14) days after receipt of a copy of this Report and Recommendation. Signed by Hon. Marian W. Payson on 1/25/2013. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ERICK R. STEPHENS,
REPORT & RECOMMENDATION
Plaintiff,
10-CV-6534CJS
v.
UNITED AIRLINES,
Defendant.

PRELIMINARY STATEMENT
Plaintiff Erick R. Stephens initiated this action on April 14, 2010, alleging
employment discrimination by defendant.1 (Docket ## 1, 4). Currently before the Court is an
Order to Show Cause why this case should not be dismissed for failure to prosecute pursuant to
Rule 41(b) of the Local Rules of Civil Procedure for the United States District Court for the
Western District of New York. (Docket # 18).
On October 3, 2012, this Court held a telephone status conference with the parties.
(Docket # 17). During the conference, plaintiff indicated his desire to discontinue the action.
The Court instructed plaintiff that should he wish to discontinue his lawsuit, he should file a
motion to discontinue the action. No such motion was filed, nor did the plaintiff communicate
further with the Court about the action. Accordingly, this Court issued an Order to Show Cause
on November 6, 2012. (Docket # 18). The Order directed plaintiff to respond by December 7,

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This action commenced in New York State Supreme Court and was removed to the United States District
Court for the Western District of New York on September 20, 2010. (Docket # 1).

2012. (Id.). The Order further advised plaintiff that “[f]ailure to comply with [the] order will
result in the recommendation of the dismissal of this action.” (Id.).
On this record, which contains no evidence that plaintiff intends to prosecute this
matter, I recommend that the district court dismiss this action with prejudice pursuant to Fed. R.
Civ. P. 41(b) for failure to prosecute.

DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure authorizes the dismissal of an
action for failure to prosecute, providing in relevant part:
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 . . . operates as an adjudication on
the merits.
Fed. R. Civ. P. 41(b). Although the rule refers to dismissal upon motion of a defendant, the
Supreme Court has made clear that a court has the inherent authority to dismiss an action sua
sponte. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (“[t]he authority of a court to
dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’
governed not by rule or statue but by the control necessarily vested in courts to manage their own
affairs so as to achieve the orderly and expeditious disposition of cases”); see also Minnette v.
Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993); Taub v. Hale, 355 F.2d 201, 202 (2d Cir.),
cert. denied, 384 U.S. 1007 (1966).
Dismissal is warranted under Rule 41(b) where the record demonstrates a lack of
due diligence by a plaintiff in the prosecution of his lawsuit. Lyell Theatre Corp. v. Loews Corp.,
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682 F.2d 37, 43 (2d Cir. 1982). Moreover, “prejudice resulting from unreasonable delay may be
presumed as a matter of law.” Peart v. City of New York, 992 F.2d 458, 462 (2d Cir. 1993);
Charles Labs, Inc. v. Banner, 79 F.R.D. 55, 57 (S.D.N.Y. 1978) (“[t]he operative condition on a
Rule 41(b) motion is lack of due diligence on the part of the plaintiff, ‘not a showing by
defendant that it would be prejudiced’”) (quoting Messenger v. United States, 231 F.2d 328, 331
(2d Cir. 1956)). Dismissal is considered “a harsh remedy to be utilized only in extreme
situations.” See Minnette v. Time Warner, 997 F.2d at 1027 (internal quotations omitted).
Nevertheless, applying these standards, courts frequently have found dismissal of a complaint
justified when the plaintiff fails to take any concrete actions over a substantial length of time.
See, e.g., Fischer v. Dover Steamship Co., 218 F.2d 682, 683 (2d Cir. 1955) (plaintiff’s failure to
appear for deposition noticed seven months earlier, despite court order requiring his appearance,
justified dismissal for failure to prosecute); Myvett v. Rosato, 2004 WL 1354254, *2 (S.D.N.Y.
2004) (“[t]hat nearly a year has elapsed since [plaintiff] took any steps to prosecute this case,
such as responding to outstanding discovery requests, strongly counsels in favor of dismissal”);
West v. City of New York, 130 F.R.D. 522, 525-26 (S.D.N.Y. 1990) (plaintiff’s inactivity for
nineteen months warranted dismissal for failure to prosecute) (citing Chira v. Lockheed Aircraft
Corp., 634 F.2d 664 (2d Cir. 1980) and other cases).
In the case at bar, plaintiff failed to respond to the show cause order and has
shown no intention to prosecute this matter. Considering that prosecutive delinquency, as well as
plaintiff’s stated desire to discontinue the action and his explicit warning that failure to respond
to the pending show cause order would result in a recommendation by this Court to dismiss the
action, I find that dismissal is warranted.
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CONCLUSION
For the foregoing reasons, it is the recommendation of this Court that the district
court dismiss this action with prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
January 25 , 2013

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Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk
of this Court within fourteen (14) days after receipt of a copy of this Report and
Recommendation in accordance with the above statute, Fed. R. Civ. P. 72(b), 6(a) and 6(d) and
Local Rule 72(b).
The district court will ordinarily refuse to consider on de novo review arguments, case
law and/or evidentiary material which could have been, but was not, presented to the magistrate
judge in the first instance. See e.g. Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale
Elec. Co., 840 F.2d 985 (1st Cir. 1988).
Failure to file objections within the specified time or to request an extension of such
time waives the right to appeal the District Court’s Order. Thomas v. Arn, 474 U.S. 140
(1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v.
Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) of the Local Rules for the Western
District of New York, “[w]ritten objections . . . shall specifically identify the portions of the
proposed findings and recommendations to which objection is made and the basis for each
objection and shall be supported by legal authority.” Failure to comply with the provisions of
Rule 72(b), or with the similar provisions of Rule 72(a) (concerning objections to a
Magistrate Judge’s Decision and Order), may result in the District Court’s refusal to
consider the objection.
Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to
the attorneys for the Plaintiff and the Defendant.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
January 25 , 2013

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