Wade v. Monroe County Dept Aviation

Filing 5

-CLERK TO FOLLOW UP-ORDER dismissing the case in its entirety, without prejudice. Signed by Hon. David G. Larimer on 12/4/13. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
PETER WADE,

Plaintiff,
DECISION AND ORDER
13-CV-6160L
v.
MONROE COUNTY DEPT AVIATION,

Defendant.
________________________________________________

Plaintiff, appearing pro se, brings this action against the Monroe County Department of
Aviation, alleging disability-based discrimination in violation of the Americans with Disabilities Act,
42 U.S.C. §12201 et seq. Familiarity with the underlying facts is presumed.
Plaintiff moved to proceed in forma pauperis, which was granted by the Court on April 18,
2013 (Dkt. #3). The same day, the Clerk of the Court mailed plaintiff summonses and marshal
forms, with instructions to complete them and return them so that service could be made on the
defendant.
Plaintiff failed to return the forms or otherwise respond, and on November 1, 2013, after the
matter had been dormant for more than six months, the Court issued an order to show cause,
advising the plaintiff to apprise the Court of the status of the matter on or before November 22, 2013,
or risk dismissal of the case for failure to prosecute. That deadline expired six weeks ago, with no
response at any time from the plaintiff.
It is well settled that federal courts are vested with the authority of to dismiss a plaintiff's
claims where the plaintiff has failed to prosecute them. See Fed. R. Civ. Proc. 41(b); Chambers v.

NASCO, Inc., 501 U.S. 32, 44 (1991) (among the “facets to a federal court’s inherent power” is the
power to “act sua sponte to dismiss a suit for failure to prosecute”). See also Local Rules of Civil
Procedure for the Western District of New York 41(b) (“[i]f no action has been taken by the parties
in six months [in a civil case], the Court shall issue a written order to the parties to show cause
within thirty days why the case should not be dismissed for failure to... prosecute... [i]f the parties
fail to respond, the Judge may issue an order dismissing the case”).
The Second Circuit has set forth several factors for a district court to consider, when
contemplating dismissing a plaintiff's case for failure to prosecute in this context: (1) the duration
of the plaintiff’s failures; (2) whether plaintiff had received notice that further delays would result
in dismissal; (3) whether the defendant is likely to be prejudiced by further delay; (4) whether the
district judge has taken care to strike the balance between alleviating court calendar congestion and
protecting a party’s right to due process and a fair chance to be heard; and (5) whether the judge has
adequately assessed the efficacy of lesser sanctions. See LeSane v. Hall’s Sec. Analyst, Inc., 239
F.3d 206, 209 (2d Cir. 2001).
I have considered the factors as set forth by the Second Circuit and conclude that dismissal
is warranted. The plaintiff has been duly and explicitly warned, via the “information packet” mailed
to all pro se litigants to apprise them of the requirements of the Local Rules, McCauley v. Cully,
2010 U.S. Dist. LEXIS 15765 at *6 (W.D.N.Y. 2010), and failing that, by the Court’s order to show
cause, that this action is subject to dismissal if he fails to prosecute the matter or to comply with
orders of the Court. Based on plaintiff’s lengthy and unexplained failure to return the summonses
and marshal forms to the Clerk’s office, to otherwise proceed with the prosecution of this matter, to
comply with the Local Rules or to respond to the Court’s order to show cause, I find that further
attempts to solicit plaintiff’s participation in this action would be futile, and that dismissal of this
action for non-compliance with the Local Rules of Civil Procedure and the orders of this Court is
appropriate.

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For these reasons, the matter is dismissed in its entirety, without prejudice.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
December 4, 2013.

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