Marshall et al v. Department of Children and Family Services
Filing
97
OPINION AND ORDER granting 95 Renewed Motion to Dismiss; granting 96 Motion to Dismiss. Signed by Judge William K. Sessions III on 5/4/2016. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Robert Donald Marshall,
Jr. and Angel Maria
Marshall,
Plaintiffs,
v.
Brita Hanson, Michelle
Kainen, Brenda Pellerine,
Cindy Kurahara, Mariam
Newman, Dr. William
Halikias, Mary Ann Neill,
Jeffrey Carlstrom,
Jennifer Foster, Janet
Melke, Carla Tucker,
Ruth Clough, and Sue
Lohutko,
Defendants.
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Case No. 2:13-cv-224-wks
OPINION AND ORDER
Plaintiffs Robert Donald Marshall, Jr. and Angel Maria
Marshall, proceeding pro se, bring this civil rights action
claiming a conspiracy to terminate their respective parental
rights.
On March 25, 2016, the Court allowed Plaintiffs 30 days
in which to file a Second Amended Complaint, and warned that the
“failure to do so will likely result in the dismissal of all
claims, and the dismissal of this case with prejudice.”
94 at 4.
ECF No.
Thirty days have since passed, the Plaintiffs have not
filed a Second Amended Complaint, and motions to dismiss for
failure to prosecute are currently before the Court.
Dismissal for failure to prosecute is governed by Federal
Rule of Civil Procedure 41(b), which provides:
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 upon the merits.
Fed. R. Civ. P. 41(b).
The Second Circuit has stated that
failure to prosecute “can evidence itself either in an action
lying dormant with no significant activity to move it or in a
pattern of dilatory tactics.”
42.
Lyell Theatre Corp., 682 F.2d at
The Second Circuit has also acknowledged that dismissal is
“a harsh remedy to be utilized only in extreme situations.”
Harding v. Fed. Reserve Bank, 707 F.2d 46, 50 (2d Cir. 1983)
(quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d
Cir. 1972)); see also Chira v. Lockheed Aircraft Corp., 634 F.2d
664, 665 (2d Cir. 1980) (discussing the sanction of dismissal for
failure to prosecute as “pungent, rarely used, and conclusive”).
This is particularly true in pro se cases, where dismissal for
failure to prosecute should be granted only “when the
circumstances are sufficiently extreme.”
Lucas v. Miles, 84 F.3d
532, 535 (2d Cir. 1996) (citing Nita v. Connecticut Dep’t of
Envtl. Prot., 16 F.3d 482, 487 (2d Cir. 1994)).
The following factors, none of which is dispositive, must be
considered when determining whether dismissal for failure to
prosecute is warranted: (1) the duration of the plaintiff’s
failures, (2) whether the plaintiff received notice that further
2
delays would result in dismissal, (3) whether the defendant is
likely to be prejudiced by further delay, (4) whether an
appropriate balance has been struck between alleviating the
court’s calendar congestion and protecting the litigants’ due
process rights, and (5) whether lesser sanctions would be
appropriate.
See United States ex rel. Drake v. Norden Sys.,
Inc., 375 F.3d 248, 255 (2d Cir. 2004); Nita, 16 F.3d at 485;
Feurtado v. City of New York, 225 F.R.D. 474, 477 (S.D.N.Y.
2004).
The instant case has been pending since 2013.
In an Opinion
and Order dated March 27, 2015, the Court dismissed the
Plaintiffs’ claims and granted leave to file a Second Amended
Complaint.
The Court warned that “[f]ailure to file a Second
Amended Complaint within thirty (30) days may result in final
dismissal with prejudice of the claims dismissed herein.”
No. 78 at 35.
ECF
After the Court granted a subsequent motion for
extension of time, the Plaintiffs’ filing was due on June 1,
2015.
Plaintiffs attempted to file a Second Amended Complaint
electronically on the due date.
The Clerk’s Office rejected the
filing on the basis of this Court’s rule barring the electronic
filings of complaints.
See Administrative Procedure for
Electronic Case Files Rule I(1)(b).
The Clerk’s Office then
alerted Plaintiffs via email, first on June 2, 2015 and again on
3
June 16, 2015, of the need to file a paper copy of the Complaint.
When Plaintiffs responded that they had not retained a paper
copy, the Clerk’s Office suggested obtaining a copy from one of
the opposing attorneys.
To date, Plaintiffs have not properly
filed a Second Amended Complaint.
It has now been nearly a year since either Plaintiff filed
anything with the Court.
As noted above, on March 25, 2016 the
Court allowed Plaintiffs an additional 30 days in which to file a
Second Amended Complaint.
That deadline has now passed, and
Plaintiffs have filed nothing.
Reviewing the factors for dismissal under Rule 41(b), the
Plaintiffs have been aware of the need to file a Second Amended
Complaint since March 2015 – over one year ago.
The Court has
allowed them multiple opportunities to properly docket an amended
pleading, and has clearly warned that the failure to do so would
likely result in the dismissal of their claims with prejudice.
Plaintiffs have nonetheless failed to take action to preserve
their claims.
An Amended Complaint naming the individual Defendants has
been pending since March 2014.
In light of the Plaintiffs’
inaction, those Defendants now have a right to dismissal of the
claims against them.
The Court has considered Plaintiffs’ due
process rights, as well as a lesser sanction, and finds that the
repeated failure to properly file a Second Amended Complaint
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warrants dismissal.
The pending motions to dismiss (ECF Nos. 95
and 96) are granted, and this case is dismissed with prejudice.
Dated at Burlington, in the District of Vermont, this 4th
day of May, 2016.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
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