Ivery v. Baldauf et al
Filing
76
DECISION AND ORDER Defendant Alexander C. Baldauf's motion 68 to dismiss the Complaint pursuant to Fed. R. Civ. P. 41(b) is granted, and the Complaint is dismissed with prejudice. Signed by Hon. David G. Larimer on 5/27/2021. Copy of this Decision and Order sent by First Class Mail to plaintiff Dwayne Ivery on 5/27/2021 to his address of record. (KAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
DWAYNE IVERY,
DECISION AND ORDER
Plaintiff,
14-CV-6041L
v.
ALEXANDER C. BALDAUF,
Defendant.
________________________________________________
The sole remaining defendant in this case, Officer Alexander C. Baldauf (“Baldauf”)
moves to dismiss the Complaint pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute, failure
to comply with numerous Court orders, and failure to appear at a day-certain trial. (Dkt. #68).
The motion is GRANTED and the Complaint is dismissed with prejudice.
The Complaint in this action was filed in January 2014. Plaintiff was represented by
Charles F. Burkwit, an attorney experienced in civil rights litigation. The Complaint was based
on events occurring on August 17, 2013, at plaintiff Dwayne Ivery’s (“Ivery”) residence in
Rochester, New York. Officer Baldauf and another officer responded to that address based on a
911 telephone call from plaintiff’s then-girlfriend Winnette Delancy. The matter involved a
dispute between the couple over a motor vehicle. Officer Baldauf alleged that Ivery became
abusive, shouting obscenities at the officers and there was an altercation between them and
Baldauf, which lasted about 30 seconds and resulted in plaintiff’s arrest and removal from the
property.
The Complaint alleged false arrest and excessive force. The case proceeded through
discovery and a mediation proceeding, which failed to produce a settlement (Dkt. #41).
After a lengthy period of discovery, defendants moved for summary judgment and in a
27-page Decision and Order (Dkt. #42), entered February 14, 2018, this Court granted defendants’
motion for summary judgment, in substantial part, and dismissed all the claims against
co-defendants Ricky J. Harris, Jr., James M. Sheppard, and the City of Rochester. Four claims
against Officer Baldauf were dismissed as well. Because there were issues of fact, the Court
denied summary judgment as to plaintiff’s Fourth Amendment claims, including false arrest and
excessive force.
Soon after that decision, the Court scheduled a status conference on June 12, 2018, at which
time the Court set a firm trial date of August 27, 2018. Two days later, on June 14, 2018, the
Court issued its Pretrial Order (Dkt. #45). That Pretrial Order confirmed the trial date of August
27, 2018 and indicated that it was a day-certain trial date, which would not be adjourned.
Thereafter, the Court received a letter from plaintiff’s counsel, Burkwit, indicating that
plaintiff wished to terminate him. The Court therefore held a status conference on July 9, 2018
(Transcript at Dkt. #56). At that conference, Ivery acknowledged that he had hired Burkwit, who
had represented him for over four years. Ivery claimed he needed another attorney to assist
Burkwit or take over the case. According to Burkwit, plaintiff did not feel the case was ready for
trial and therefore plaintiff wanted new counsel. Ivery indicated at the conference that he had
contacted some other attorneys, but did not provide the Court with any names. By the end of the
conference, it was clear that Ivery no longer wished to retain Burkwit and would take steps to
obtain another lawyer. It was also disclosed at that conference that plaintiff owed Burkwit $5,263
for disbursements that had been incurred to date in the case. The Court reluctantly relieved
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Burkwit from further responsibility on the file and adjourned the trial without date. This was the
first of two day-certain trials that had to be adjourned because of Ivery’s actions.
In addition to adjourning the trial and relieving Burkwit, plaintiff was ordered to advise the
Court by letter on or before July 31, 2018, as to the status of his efforts to obtain new counsel.
Plaintiff failed to advise the Court as directed by July 31, 2018, as to new counsel. This was the
first of numerous orders that Ivery refused or neglected to follow. In fact, about a year passed
and plaintiff took no further action to obtain a lawyer and proceed on the case.
Therefore, the Court scheduled a status conference for June 10, 2019. At the conference,
plaintiff appeared without counsel. The Court’s notes and the transcript of proceedings reflects
that the Court reminded Ivery that he had failed to comply with the Court’s prior order that he was
to advise the Court of the status of counsel. The Court noted that the case had been pending
almost a year since attorney Burkwit had been relieved. The Court advised Ivery that there
appeared to be lawyers in the area that might take such a case. Once again, I set a deadline and
gave Ivery 60 days in which to obtain a lawyer or be prepared to proceed at trial pro se. I also
directed Ivery to make a formal demand for settlement. Ivery did make a written demand for
settlement, in a filing on July 24, 2019 (Dkt. #50), requesting $3,000,000 to settlement the case.
This excessive and unrealistic demand did not lead to settlement of the case.
August 12, 2019 came and went and once again, Ivery had failed to comply with this
Court’s Order that he was to advise the Court by that date as to whether he had obtained new
counsel or was intending to proceed pro se. This was another order that Ivery failed to follow.
That behavior would continue through the balance of the case.
Because plaintiff had been without counsel for almost 18 months and had ignored several
orders from the Court to obtain counsel or proceed pro se, to assist plaintiff, the Court entered an
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Order on January 21, 2020, appointing two attorneys, Adam Sanderson and Conor Tallet, to
represent plaintiff pro bono. (Dkt. #53). These attorneys were members of a well-recognized
litigation firm, Thomas & Solomon LLP.
A few days after that appointment, on January 27, 2020, the Court held a status conference.
Several important matters occurred at that conference, which are reflected in the Court’s notes and
the transcript of proceedings. First, the Court scheduled a day-certain trial seven months away,
on August 17, 2020. Plaintiff was also directed to advise the Court within two weeks if he
accepted the assignment of attorneys Sanderson and Tallet. If he did not wish to accept the
assignment, he needed to obtain new counsel or be prepared to proceed pro se. The next day, on
January 28, 2020, the Court issued another Pretrial Order (Dkt. #54) indicating that a firm
day-certain trial was scheduled for August 17, 2020.
The Court also scheduled a pretrial
conference on August 10, 2020. That Pretrial Order required the plaintiff to provide several
things at the pretrial conference, including a list of witnesses, proposed voir dire questions, a
complete exhibit list, and an itemized statement of damages. Once again, that Pretrial Order
advised that the trial was a day-certain case which would not be adjourned.
Ivery did not advise the Court within two weeks if he accepted counsel. The Court heard
nothing further from plaintiff and it appears that the assigned attorneys began to work diligently
for plaintiff in preparation for the August 17, 2020 trial. Unfortunately, approximately four
months after the January 27, 2020 status conference, the Court received a letter from assigned
counsel (Dkt. #57) reporting that plaintiff now wished to fire them from continued representation.
Upon receipt of that letter, the Court sent a pointed letter to plaintiff dated May 14, 2020
(Dkt. #58) and reminded plaintiff of the day-certain trial scheduled for August 17, 2020 and noted
that this was the second lawyer that plaintiff wished to discharge, the first being Charles Burkwit.
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I advised plaintiff that the Court appointed the lawyers as a favor to plaintiff since he had been
unable or unwilling to obtain a lawyer, reminded plaintiff that trials in federal court are complex,
directed plaintiff to advise the Court within a week if in fact he wished to discharge the lawyers.
The Court reminded Ivery that he must be prepared for trial on August 17, 2020.
On May 28, 2020, the plaintiff requested additional time to get a lawyer (Dkt. #59). The
Court wrote to plaintiff by letter dated July 21, 2020 (Dkt. #61). The Court confirmed that
plaintiff did not wish to be represented by attorneys Sanderson and Tallet, but warned plaintiff that
trial was scheduled for August 17, 2020 and that he “must be prepared to proceed to trial on that
day with or without an attorney.” By that letter, I relieved attorneys Sanderson and Tallet from
further responsibility on the file.
Within a week, the Court sent a follow-up letter dated July 27, 2020 (Dkt. #62) to Ivery.
I indicated, once again, that the Court had not heard from Ivery as to whether he had obtained a
lawyer. I advised plaintiff that in spite of the COVID-19 virus, we would be able to proceed to
trial on August 17, 2020, with jury selection. I also reminded plaintiff that he must appear at the
pretrial conference on August 10, and that jurors had been notified to appear for trial. Finally, I
warned plaintiff that he must be prepared to attend and participate in the pretrial conference and
jury selection and trial on August 17, and he was warned in bold letters that: “FAILURE ON
YOUR PART TO DO SO WILL RESULT IN THE DISMISSAL OF THIS ACTION.” (Dkt.
#62). Plaintiff wrote to the Court by letter dated July 30, 2020 (Dkt. #60) indicating that he did
not have an attorney, but “perhaps” there may be one by the pretrial conference date. Plaintiff
stated his opinion that there could not be a trial ready to commence on August 17, 2020.
Ivery did appear at the scheduled Pre-trial Conference on August 10, 2020. At that
conference, the Court asked Ivery about counsel and was advised that he was “working on it.”
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The Court noted that it had been hearing that same refrain for the past two years. Ivery stated that
he could not represent himself, and he repeatedly talked over the Court during the balance of the
conference. The Court reminded Ivery that over two years ago, in June 2019, he was advised
either get a lawyer or represent himself. I noted again that to assist Ivery, I had appointed not
one, but two lawyers in January 2020 to represent him and that once again, the Court had set a trial
date for August 17, 2020. Ivery complained that the two attorneys urged him to settle the case.
The Court reminded Ivery that the case had been set for trial over eight months ago and that Ivery
had caused the problems. Although defense counsel handed over to plaintiff the required trial
book as directed by the Pretrial Order, Ivery produced no documentation and failed to comply with
the Pretrial Order. The Court warned plaintiff that the case would go to trial on August 17, 2020,
with or without a lawyer, and that the case would be tried on that day or it would be dismissed.
As part of plaintiff’s concerted effort to avoid going to trial on the scheduled date, plaintiff
appeared at the Clerk’s Office on Friday, August 14, 2020, advising a staff member that he had a
“death in the family” and would be unable to attend Court on Monday, August 17, 2020. It is
unclear why plaintiff went to the Clerk’s Office rather than contacting the Court’s chambers
directly. In any event, the Clerk’s employee advised this Court’s staff and plaintiff was told that
he must report as directed on August 17, 2020.
On August 17, 2020, the scheduled trial date, Ivery appeared but without counsel. Ivery
claimed that he had talked to a lawyer the past Friday. The Court reminded Ivery that had been
advising the Court for years that he was going to get an attorney but never did so. The Court
reminded Ivery that last week he was advised either get an attorney or represent himself. Once
again, the Court reiterated the day-certain trial had been set months ago and that Ivery was warned
numerous times of that date. At the conference, Ivery kept talking over the Court to the extent
6
that he had to be admonished and warned that the case could be dismissed for that behavior. The
Court denied Ivery’s request to adjourn the trial further. At that point, Ivery claimed some
discomfort and requested leave to sit down. The Court then advised plaintiff and defense counsel
that jury selection would commence the next day, August 18, 2020.
The Court then adjourned but a few minutes later, defense counsel returned to Court and
advised that plaintiff had squared off aggressively toward Officer Baldauf in the hallway outside
the courtroom. On that day, the Court advised the Jury Commissioner to have jurors report the
next day, August 18, 2020, to begin jury selection.
On August 18, 2020, defense counsel and his client appeared, as did the jurors. But
plaintiff failed to appear. The Court reported that someone identifying herself as “plaintiff’s
fiancé” left a message on the Court’s voicemail at 8:01 a.m., indicating that plaintiff was at
Rochester General Hospital complaining of health issues.
The next day, the Court issued an Order (Dkt. #66) scheduling a status conference with the
parties for September 8, 2020. In that scheduling order, the Court noted that the very next day
after the scheduled trial on August 18, 2020, Ivery had telephoned the Court’s chambers advising
that he was home and out of the hospital. Plaintiff was ordered to show cause and produce “a
medical excuse and/or medical record to justify his failure to appear at a court-ordered jury trial
on August 18, 2020.” (Dkt. #66). Plaintiff was also ordered to show cause on or before August
31, 2020, as to why the Court should not dismiss the case for failure to prosecute. In that Order,
plaintiff was advised, once again, in bold letters, that if he failed to appear or failed to produce a
medical excuse or failed to respond to the Court’s Order to Show Cause by August 31, 2020, the
Court could dismiss the case for failure to prosecute.
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Once again, plaintiff failed to comply with the Court’s Order. Plaintiff did not respond by
August 31, 2020, to the Court’s Order to Show Cause as to why the case should not be dismissed.
Plaintiff also failed to provide any medical excuse or medical record by that date.
On September 8, 2020, plaintiff did appear, again without counsel. Plaintiff repeated the
flimsy claim that he was “about to” retain an attorney, although no name was provided to the Court.
The Court once again reminded Ivery that I had been hearing that claim for over two years. I
repeated the facts that Ivery’s first attorney, Burkwit, had been fired over two years ago and that
Ivery had failed to comply with several court orders to advise the Court about the status his attorney
search. The Court reminded Ivery that the firm trial date of August 17, 2020 had been set. The
Court noted that it was easy to walk into an emergency room and I found that that was simply an
attempt not to go to trial as ordered.
The Court noted that plaintiff’s activities were wasting the Court’s time and that Ivery had
consistently taken steps to avoid trial as ordered to do so. At that time, defense counsel orally
moved to dismiss the case for failure to prosecute.1 The Court did not grant the motion from the
bench at that time, although the Court did advise Ivery that it was close to dismissing the case
because Ivery was not serious about the case and was not prepared.
A few days later, on September 18, 2020, defendant filed the present motion to dismiss for
failure to prosecute (Dkt. #68). Plaintiff did file a response to the motion to dismiss (Dkt. #70).
In that response, plaintiff claimed, without basis, that he had complied with “every court order” as
required. He also suggested problems because defense counsel did not reply to his $3,000,000
demand letter and claimed that it was defense counsel that was “gaming the court.” He also
1
Defense counsel did move orally on September 8, 2020 to dismiss the case. The Court did not grant the motion at
that time but after reviewing defense counsel’s written filed motion (Dkt. #68), the exhibits attached thereto, and after
a thorough review of all of the lengthy proceedings in this case, the motion to dismiss is warranted and granted.
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claimed, without any factual basis, that the assigned attorneys failed to provide proper assistance.
Defense counsel duly filed a Reply Declaration (Dkt. #73).
DISCUSSION
A Court should not lightly dismiss a case for failure to prosecute. The facts in this case,
though, demonstrate a long-standing pattern of plaintiff’s failure or refusal to comply with court
orders culminating in his refusal or failure to attend trial on August 18, 2020. Plaintiff has claimed
that he does not have the ability to prosecute his case pro se, but he has done everything possible
to fire attorneys, one that he retained, and two others that were appointed for him. He has refused
or neglected to obtain new counsel, although it has now been almost three years since the Court
relieved his original retained lawyer, Charles Burkwit. Plaintiff has given numerous excuses
concerning counsel and has claimed on numerous occasions that he is about to retain an attorney,
but he never does so. This Court has set reasonable deadlines for either obtaining counsel or
indicating that plaintiff was prepared to proceed pro se and plaintiff has ignored each and every
order.
The Court has urged plaintiff repeatedly of the need to obtain counsel in a complex case in
federal court. Plaintiff had an experienced civil rights attorney when he retained Charles Burkwit,
but for no apparent valid reason, he discharged Burkwit, owing him over $5,200 in disbursements.
I have no evidence whatsoever that he has paid one dollar toward those disbursements. Plaintiff’s
late firing of Mr. Burkwit required the Court to adjourn the first trial scheduled as a day-certain on
August 27, 2018, The Court was generous on that occasion and could have insisted then that
plaintiff represent himself. Rather, the Court gave plaintiff numerous extensions to get counsel
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and when he failed to take reasonable steps to do so, the Court appointed two lawyers from a
distinguished litigation firm to handle his case pro bono.
Plaintiff worked with those attorneys for several months and the matter was proceeding
toward trial on August 17, 2020 when, close to the time when trial was scheduled, plaintiff found
some reason to be dissatisfied with those attorneys and discharged them. This Court made it clear
on multiple occasions that the trial date of August 17, 2020, was a day-certain and that plaintiff
must be prepared to proceed either with counsel or pro se or the case could be dismissed.
Plaintiff appeared at the pretrial conference on August 10, 2020, totally unprepared and
failed to provide the necessary documents required in the Pretrial Order, including a list of
witnesses, itemization of damages, and other items. It was clear on that date that plaintiff was
unwilling to proceed to trial on August 17, 2020, since he did not have counsel and was not inclined
to proceed pro se.
I believe that the record is crystal clear that plaintiff took several steps to avoid going to
trial. The first was his claim that he needed to “attend a funeral” on August 17, 2020 for a person
who was not identified. Plaintiff was advised that that was not a valid excuse and was directed
by a member of the Clerk’s staff that he must attend court proceedings on that date. Since that
ploy did not work, I believe the record is clear that plaintiff took it upon himself to go to a hospital
on the trial date complaining of “chest pains” believing that that would constitute a legitimate
reason for not appearing for trial. It does appear that plaintiff did take himself to the hospital that
day, but the materials submitted failed to indicate that plaintiff was in any legitimate distress. It
is quite easy to drive oneself to the hospital complaining of “chest pains,” but this appears to be
nothing more than an obvious gambit to avoid his responsibility to proceed at trial on August 18,
2020. Ivery was not ready and tried several stunts to avoid trial.
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The documents submitted by plaintiff in his response to defendant’s motion to dismiss do
little to suggest a significant medical problem. The first document attached to his response is a
record of a doctor’s visit in October 2020, six weeks after the scheduled trial date, which seemed
to relate to back pain. There was a document from Rochester General Hospital indicating that
plaintiff did appear there, but there is no significant medical evidence that what he suffered was
anything more than mere anxiety over being required to proceed to trial according to a court order.
Defendant has moved to dismiss the case for failure to prosecute and for failure to comply
with the Court’s numerous orders, including an order to proceed to trial on August 17, 2020 and
August 18, 2020. The Court should not grant such a motion lightly, but Ivery’s conduct in this
case demonstrates a clear and calculated pattern of ignoring court orders and raising bogus claims
to avoid trial on August 17, 2020.
The standards for a court to consider in granting a motion to dismiss under Rule 41 are
clear and well established. The Second Circuit has held that in evaluating a motion to dismiss for
failure to prosecute under Fed. R. Civ. P. 41(b), a district court must weight five factors: (1) the
duration of the plaintiff’s failure to comply with the court order; (2) whether the 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
court has adequately considered a sanction less drastic than dismissal. Jefferson v. Webber, 777
Fed. App’x 11, 14 (2d Cir. 2019) (citing Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014)).
Those factors plainly weigh in favor of dismissal here. Ivery’s conduct satisfies all of the tests
for granting this motion in a case filed seven years ago.
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Plaintiff had the help of not one, but three lawyers over the course of several years working
toward trial on the few remaining claims that exist after the Court granted summary judgment.
Plaintiff has done everything possible to jeopardize his case by failing to proceed with those
lawyers.
Plaintiff has been warned countless times by this Court on the record that he must obtain
counsel or proceed pro se. The trial date was scheduled months in advance for August 17, 2020
and plaintiff was well advised of that date and of the consequences for failing to appear. The
excuses of a “death in the family” or medical issues appear to be blatant fabrications to excuse
plaintiff’s failure to comply with a court order.
On August 18, 2020, defendant and his counsel were present, as were many jurors
necessary for jury selection. Plaintiff took it upon himself not to appear for what this Court finds
to be a bogus reason.
This trial involves an incident involving the arrest of plaintiff, which took about 30 seconds
according to testimony at a deposition. To my knowledge, plaintiff has never set out in detail the
injuries he claims to have received from that brief encounter. It also appears that his settlement
demand of $3,000,000 is grossly inconsistent with the facts of the case. I believe that it is clear
that plaintiff has a much higher estimation of the value of his case than is realistic and it appears
that his valuation is not shared by any of the attorneys that represented him. This Court urged
plaintiff to consider settlement. I suspect that all of the attorneys were working toward that, but
it appears clear that plaintiff was not inclined to work with the attorneys toward a reasonable
settlement based on the objective facts.
This case has been pending for over seven years; many of the claims have been dismissed
on summary judgment because they lacked merit and the only remaining claims against the one
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remaining defendant, Baldauf, were scheduled for trial on two occasions, but because of plaintiff’s
acts, those trials were not able to proceed. Years have passed while plaintiff has claimed that he
was seeking to obtain a lawyer, but plaintiff has been unwilling or unable to obtain counsel. Over
the course of this case, plaintiff had not one, but three lawyers assisting in prosecuting the case.
Ivery fired them all for no apparent reason. Plaintiff bears the responsibility for that since there
does not seem to be a valid reason for plaintiff’s disenchantment with the lawyers, one of whom
he retained. That attorney, Charles Burkwit, has extensive experience in civil rights litigation,
including alleged excessive force actions against law enforcement officials.
The record here is replete with examples where the plaintiff failed to comply with court
directives to either obtain an attorney or respond to other court orders. It was clear at the pretrial
conference on August 10, 2020 and on August 17, 2020, that plaintiff had no lawyer and was
unable and unwilling to proceed to trial on the scheduled date of August 17 or August 18, 2020.
It is clear that plaintiff took what he thought to be a clever step by visiting the hospital on the day
of trial complaining of an “illness” which has not been documented in any legitimate sense.
I have considered whether other sanctions might be appropriate in this case, but in light of
the outrageous acts by Ivery, none appear appropriate or adequate. Ivery has been warned
repeatedly that this case could be dismissed.
I also note that it is unfair to the defendant to have this matter pending for over seven years
without a resolution. In addition to the parties, there were other witnesses to the incident and
memories could certainly fade after such a lengthy delay.
Court orders and court deadlines mean something whether one is represented by counsel
or not. Plaintiff’s actions did not involve just one instance of a neglect or refusal to comply with
court orders, but numerous occasions when orders and directive were ignored and plaintiff
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blatantly failed to proceed for a trial that had been scheduled for many months; in fact, the second
such day-certain trial that failed to occur because of plaintiff’s action, or perhaps more accurately,
his inaction.
Even today, nine months after plaintiff’s failure to appear for trial on August 18, 2020,
plaintiff still remains without counsel and is in no better position to try this case pro se.
CONCLUSION
Defendant Alexander C. Baldauf’s motion to dismiss the Complaint pursuant to Fed. R.
Civ. P. 41(b) is GRANTED, and the Complaint is dismissed with prejudice.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
May 27, 2021.
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