Oliver v. Annucci et al
DECISION AND ORDER granting 25 Motion to Dismiss. Defendants motion to dismiss is granted and Plaintiff is ordered to pay Defendant $77.80, the cost of the deposition he failed to attend. Signed by Hon. Charles J. Siragusa on 8/23/17. Copy of this Decision and Order and NEF mailed to pro se plaintiff at 42 Seminary Street, Auburn, NY 13021 (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
STICHT, DEPUTY SUPERINTENDENT
Siragusa, J. Before the Court is Defendant’s motion to dismiss pursuant to
Federal Rule of Civil Procedure 41(b) and Western District of New York Local Rules of
Civil Procedure 11(a) and 41(b). For the reasons stated below, Defendant’s motion is
On February 25, 2014, James Oliver (“Plaintiff”) filed a complaint pursuant to 42
U.S.C. § 1983, against New York State Department of Correctional Services and
Community Supervision Acting Commissioner Annucci and Deputy Superintendent of
Security Sticht. On October 24, 2014, all claims against Acting Commissioner Annucci
were dismissed with prejudice.
On March 16, 2015, Plaintiff filed a motion to amend his complaint against the
remaining party, Deputy Superintendent Security Sticht (“Defendant”). Plaintiff’s motion
to amend his complaint was denied without prejudice to allow Plaintiff to refile following
a Rule 16 conference. Plaintiff’s Rule 16 conference was scheduled for January 26,
2016, however Plaintiff failed to appear. A Rule 16 conference was rescheduled for April
20, 2016, and Plaintiff appeared via telephone.
On June 15, 2016, the Court received notice from Defendant that Plaintiff was
scheduled to be deposed on July 21, 2016; Plaintiff failed to appear or notify the Court
of any conflicts with that date. On August 4, 2016, Defendant filed a motion to dismiss
Plaintiff’s complaint. The Court set August 31, 2016, as the deadline for Plaintiff to file a
response to Defendant’s motion to dismiss. To date, Plaintiff has filed no response to
Defendant’s motion or communicated with the Court. On August 11, 2016, Defendant
asked that any order of dismissal be accompanied by an award of $77.80 for the cost of
the deposition. ECF No. 27.
Federal Rule of Civil Procedure 41(b) authorizes a Court to dismiss to an action
for failure to prosecute:
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
Fed. R. Civ. P. 41(b).
The Western District of New York’s local rule regarding failure to prosecute civil
actions in relevant part states:
If a civil case has been pending for more than six (6) months and is not in
compliance with the directions of the Judge or a Magistrate Judge, or if no action
has been taken by the parties in six (6) months, the Court may issue a written
order to the parties to show cause within thirty (30) days why the case should not
be dismissed for failure to comply with the Court’s directives or to prosecute. The
parties shall respond to the order by filing sworn affidavits explaining in detail
why the action should not be dismissed. They need not appear in person. No
explanations communicated in person, over the telephone, or by letter shall be
accepted. If the parties fail to respond, the Judge may issue an order dismissing
the case, or imposing sanctions, or issuing such further directives as justice
Rule 41(b) of the Local Rules of Civil Procedure. It is within the discretion of the Court to
impose appropriate monetary sanctions upon counsel or a pro se litigant when the
litigant fails to appear before Court at a conference or adequately prepare the case for
trial. Rule 11(b) of the Local Rules of Civil Procedure.
This Court has previously evaluated when involuntary dismissal for Plaintiff’s
failure to prosecute was justified in Balkum v. Cty. of Monroe, No. 08-CV-06259-CJS,
2011 WL 4841058, at *1 (W.D.N.Y. Oct. 12, 2011):
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., 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) (“The operative condition for 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)). Applying these standards, courts have frequently found dismissal of a
complaint justified when the plaintiff fails to take any specific or 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 U.S. Dist. LEXIS
10952, 2004 WL 1354254, *2 (S.D.N.Y.2004) (“that 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”); Ahmed
v. I.N.S., 911 F.Supp. 132, 134 (S.D.N.Y.1996) (plaintiff's failure to respond to
motion or to respond to discovery over course of thirty-five months since
complaint was filed justifies dismissal of action); West v. City of New York, 130
F.R.D. 522, 525 (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).
Balkum v. Cty. of Monroe, No. 08-CV-06259-CJS, 2011 WL 4841058, at *1 (W.D.N.Y.
Oct. 12, 2011) (quoting Marcial v. DePerio, 2006 WL 2769923, at *2-3 (W.D.N.Y. Aug.1,
In the Second Circuit, a district court’s decision to dismiss a civil action is guided
by the following factors:
(1) the duration of the plaintiff's failure to comply with the court order, (2) whether
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 judge has
adequately considered a sanction less drastic than dismissal.
Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). Involuntary dismissal is reserved for
extreme situations, and the Court must account for a pro se litigant’s lack of procedural
knowledge. Id. Accordingly, no one factor is dispositive. Nita v. Connecticut Dep't of
Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994).
In consideration of the factors listed above, the Court finds Plaintiff has failed to
prosecute the civil action diligently. It has been over 12 months since Plaintiff was last in
contact with the Court; Plaintiff failed to appear at a deposition on July 21, 2016.
Additionally, the Court issued a scheduling order setting August 31, 2016, as the
deadline for responsive briefs regarding Defendant’s motion to dismiss. Plaintiff was
notified on August 9, 2016, of the filing deadline and has yet to file any responsive briefs
with the Court.
The significant amount of time that has passed since Plaintiff missed his
deposition can have a prejudicial effect upon Defendant’s ability to conduct discovery
proceedings. Witnesses’ recollections of the events cited in the complaint can be
effected by the significant passage of time, and conducting discovery can become
unduly burdensome for Defendant as time passes.
Plaintiff has had ample time to prosecute the action and has failed to do so. The
lack of responsive briefs or affidavits from the Plaintiff in conjunction with his absence at
a deposition make lesser sanctions inappropriate. Therefore, pursuant to Federal Rule
of Civil Procedure 41(b) and Rule 41(b) of the Local Rules of Civil Procedure for the
Western District of New York, the Court is dismissing Plaintiff's action.
The Court has been notified that the cost of the deposition Plaintiff failed to
attend on July 21, 2016, was $77.80. Therefore, pursuant to Rule 11(a) of the Local
Rules of Civil Procedure for the Western District of New York, the Court orders Plaintiff
to pay $77.80 to Defendant for costs relating to the July 21, 2016, deposition.
For the reasons stated above, Defendant’s motion to dismiss is granted and
Plaintiff is ordered to pay Defendant $77.80, the cost of the deposition he failed to
IT IS SO ORDERED.
August 23, 2017
Rochester, New York
/s/ Charles J. Siragusa____
CHARLES J. SIRAGUSA
United States District Judge
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