A. Plaintiff's Complaint is Dismissed for Lack of Mandamus Jurisdiction
A writ of mandamus is an extraordinary measure which should be granted "sparingly, to redress a 'clear abuse of discretion,'" see In re Repetitive Stress Injury Litigation, 11 F.3d 368, 373 (2d Cir. 1993) (quoting Richardson Greenshields Securities, Inc. v. Lau, 825 F.2d 647, 652 (2d Cir. 1987), "or 'to confine an inferior court to a lawful exercise of its prescribed authority. . . .'" Id. (quoting Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 18, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983)). The facts the Plaintiff describes to support his request do not fit within the parameters of the grounds under which a Writ of Mandamus may be granted.
Mandamus is inappropriate unless a plaintiff has a clear right to the relief requested, there is a plainly defined and peremptory duty on the defendant's part to do the act in question, and no other adequate remedy is available. Heckler v. Ringer, 466 U.S. 602, 616-17, 80 L. Ed. 2d 622, 104 S. Ct. 2013 (1984); Billiteri v. United States Bd. of Parole, 541 F.2d 938, 946 (2d Cir. 1976); Lovallo v. Froehlke, 468 F.2d 340, 343 (2d Cir. 1972), cert. denied, 411 U.S. 918, 36 L. Ed. 2d 310, 93 S. Ct. 1555 (1973); Fifth Ave. Peace Parade Committee V. Hoover, 327 F. Supp. 238, 242 (S.D.N.Y. 1971).
Plaintiff has not demonstrated that he ever filed the appropriate application, nor has he demonstrated that he filed a nonfrivolous application. Before the INS awards him the interview at which he can qualify for the Special Agricultural Worker program, he must demonstrate he filed the appropriate application. Rahim v. McNary, 24 F.3d 440, 441 (2d Cir. 1994). Plaintiff has failed to do this. Therefore, Plaintiff does not have a clear right to the relief that he seeks.
Plaintiff's Complaint is hereby dismissed for lack of mandamus jurisdiction. Hence, it is not necessary to consider Defendant's motion for summary judgment.
B. Plaintiff's Complaint Shall be Dismissed For Failure to Prosecute
Assuming the Court had mandamus jurisdiction, the Plaintiff's Complaint shall nevertheless be dismissed with prejudice for failure to prosecute. Federal Rule of Civil Procedure 41(b) reads that "for failure of the plaintiff to prosecute . . . a defendant may move for dismissal of an action." This falls squarely within the power of the Court. See Link v. Wabash R.R. Co., 370 U.S. 626, 629, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962) (power of the Court to dismiss for failure to prosecute cannot be seriously doubted); Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993) (a court sua sponte may dismiss an action for failure to prosecute); Edmond v. Moore-McCormack Lines, 253 F.2d 143, 144 (2d Cir.), cert. denied, 358 U.S. 848, 3 L. Ed. 2d 82, 79 S. Ct. 73 (1958) (same); West v. City of New York, 130 F.R.D. 522, 524 (S.D.N.Y. 1990) (district judge has inherent power to dismiss for failure to prosecute). "The primary rationale underlying a dismissal under [Rule] 41(b) is the failure of plaintiff in his duty to process his case diligently." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982); see also Peart v. City of N.Y., 992 F.2d 458, 462 (2d Cir. 1991) ("prejudice resulting from unreasonable delay may be presumed as a matter of law"); Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 668 (2d Cir. 1980) (plaintiff's duty to prosecute designed to ensure fairness to all litigants "as competitors for scarce judicial resources"); Lukensow v. Harley Cars of N.Y., 124 F.R.D. 64, 66 (S.D.N.Y. 1989) (defendant not "under any duty to take any steps to bring this case to trial").
Plaintiff has taken no steps to move this case forward. The Plaintiff has filed a Complaint, but has failed to file a response to this motion nor has it responded to the Government's interrogatories and requests for admissions. Almost three years have elapsed since the Complaint was filed in February 1993. No substantive activity by the Plaintiff in thirty-five months from the commencement of this action, or sixteen months from the last Order issued in this action
is sufficient to support dismissal of this action, with prejudice, for failure to prosecute. See Chira, 634 F.2d at 666 (six months of inactivity supports dismissal); Cucurillo v. Schulte, Bruns Schiff Gesellschaft, M.B.H., 324 F.2d 234, 235 (2d Cir. 1963) (one-year activity grounds for dismissal); Fischer v. Dover Steamship Co., 218 F.2d 682, 683 (2d Cir. 1955) (seven-month delay grounds for dismissal); West V. City of N.Y., 130 F.R.D. 522, 524 (S.D.N.Y. 1990) (twenty-month delay sufficient for dismissal); Lukensow, 124 F.R.D. at 67 (two year delay); Yacub v. Coughlin, 105 F.R.D. 152, 153 (S.D.N.Y. 1985) (twenty-one month delay and failure to respond to court correspondence found sufficient).
This action is hereby dismissed in its entirety with prejudice first, for lack of mandamus jurisdiction and second, for failure to prosecute.
Dated: New York, New York
January 17, 1996
Deborah A. Batts,